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[ { "docid": "12955992", "title": "", "text": "absent extraordinary circumstances, federal courts should not enjoin pending state criminal prosecutions). In Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252 (1st Cir.1993), the First Circuit, discussing the exceptions to the Younger doctrine, stated: Extraordinary circumstances may be found for example, where the state statute or rule under which the federal plaintiff is prosecuted or sued in state court is “flagrantly and patently violative of express constitutional prohibitions in every clause,” or where the federal plaintiff demonstrates “ ‘bad faith [prosecution], harassment or any other unusual circumstance that would call for equitable relief’ ” Id. 988 F.2d at 263, n. 9 (emphasis added), citing Malachowski v. Keene, 787 F.2d 704, 708 (1st Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986); Landrigan v. Warwick, 628 F.2d 736, 743 (1st Cir.1980); see also Bettencourt v. Board of Registration in Medicine, 904 F.2d 772, 779 (1st Cir.1990). The exceptions to the Younger abstention doctrine have been very narrowly construed by the Supreme Court. See United Books, Inc. v. Conte, 739 F.2d 30, 34 (1st Cir.1984), discussing Kugler v. Helfant, 421 U.S. 117, 126 n. 6, 95 S.Ct. 1524, 1531 n. 6, 44 L.Ed.2d 15 (1975) (“ ‘bad faith’ in this context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction”); Perez v. Ledesma, 401 U.S. 82, 83, 85, 91 S.Ct. 674, 675, 676, 27 L.Ed.2d 701 (1971) (“[ojnly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction ... is federal ... relief against pending state prosecutions appropriate”); see also Bettencourt, 904 F.2d at 779; Malachowski v. Keene, 787 F.2d at 709; South Boston Allied War Veterans Council v. Zobel, 830 F.Supp. 643, 650 (D.Mass.1993). For example, in Conte, the First Circuit found that, “[o]n the facts of this case — six prosecutions over a two year period that resulted in convictions all but once — we cannot say that the Younger exceptions have been satisfied.” Conte, 739 F.2d at 33. Accordingly, on the strength" } ]

[ { "docid": "12156121", "title": "", "text": "sought to enjoin further proceedings in four civil cases and one criminal prosecution. Injunctive relief with respect to the criminal prosecution of O’Hair is barred explicitly by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In that case the Supreme Court stated that concerns of comity between the federal and state judicial systems required that federal courts abstain from enjoining state criminal proceedings absent a showing of bad faith prosecution, harassment, or extraordinary instances of irreparable harm. Id. at 44, 53-54, 91 S.Ct. at 750, 754 — 755; accord, Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Henry v. First National Bank of Clarksdale, 595 F.2d 291, 300 (5th Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). The prosecution of O’Hair for disorderly conduct arising from the alleged disruption of a city council meeting does not meet this stringent requirement. Consequently, her claim for injunctive relief must be denied and she will have to raise her constitutional claims in the state proceeding. O’Hair’s parallel claim for declaratory relief must be dismissed as well because “a declaratory judgment [would] result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid.” Samuels v. Mackell, 401 U.S. 66, 72-73, 91 S.Ct. 764, 767-68, 27 L.Ed.2d 688 (1971). Although the Younger doctrine has been invoked with respect to certain civil proceedings in which vital state interests were involved, see, e.g., Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (protection of victims of child abuse); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (state contempt process); Huffman v. Pursue, Inc., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1972) (quasi-criminal proceeding), it should not be applied to the civil suits that are at issue in this case. Certain considerations of comity and federalism apply in civil proceedings as well as in criminal prosecutions, but “the offense to state interests" }, { "docid": "1413019", "title": "", "text": "that Justice Sudolnik, who is presiding over the state proceeding and who is named only as a nominal defendant, see Amended Complaint ¶ 6, is somehow biased, as was the state optometry board that the Supreme Court enjoined in Gibson v. Berryhill, 411 U.S. 564, 580-81, 93 S.Ct. 1689, 1698-99, 36 L.Ed.2d 488 (1973). In Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975), the Supreme Court held that abstention was appropriate where plaintiff, a municipal court judge, sought to enjoin a state prosecution against him for obstruction of justice that allegedly arose from his coerced testimony before a grand jury. See Kugler, 421 U.S. at 130-31, 95 S.Ct. at 1533-34. The Kugler Court found that since plaintiff had an opportunity to raise his constitutional claims in the underlying state criminal prosecution and since he failed to allege that no trial judge in the prosecuting state could impartially decide his case, the policy of equitable restraint required abstention. See id. at 124, 95 S.Ct. at 1530-31. As in Kugler, plaintiffs here fail to rebut the presumption that “ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Id. In addition, the courts that have held that an exception to Younger was warranted have found that the prosecutors brought the eases without a reasonable expectation of obtaining a valid conviction, see, e.g., Allee, 416 U.S. at 819, 94 S.Ct. at 2202; Kugler, 421 U.S. at 126 n. 6, 95 S.Ct. at 1531 n. 6, or initiated them to retaliate for or discourage the exercise of constitutional rights. See, e.g., Dombrowski, 380 U.S. at 497, 85 S.Ct. at 1126-27 (prosecution brought to deter plaintiffs’ civil rights efforts); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.) (per curiam), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981) (prosecution brought to deter filing of civil suit against state officers); Wilson v. Thompson, 593 F.2d 1375, 1388 (5th Cir.1979) (prosecution brought to harass and punish plaintiffs for exercising first amendment rights against state officials); Shaw v. Garrison, 467" }, { "docid": "17308292", "title": "", "text": "requisite threatened injury must be more than simply “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution * * Younger, 401 U.S. at 46, 91 S.Ct. at 751. The injury threatened is both great and immediate, however, when “defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights,” Dombrowski, 380 U.S. at 485, 85 S.Ct. at 1120, or when the prosecution is initiated in bad faith or to harass the defendant. See, e.g., Cameron v. Johnson, 390 U.S. 611, 617-18, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968); Central Ave. News, Inc. v. City of Minot, 651 F.2d 565, 568-70 (8th Cir.1981). In this context, bad faith “generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction.” Kugler v. Helfant, 421 U.S. 117, 126 n. 6, 95 S.Ct. 1524, 1531 n. 6, 44 L.Ed.2d 15 (1975); see also Central Ave. News, 651 F.2d at 570. Bad faith and harassing prosecutions also encompass those prosecutions that are initiated to retaliate for or discourage the exercise of constitutional rights. See, e.g., Younger, 401 U.S. at 48, 91 S.Ct. at 752 (Dombrowski defendants were threatened with great and immediate irreparable injury because prosecutions were initiated “to discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.”) (quoting Dombrowski, 380 U.S. at 482, 85 S.Ct. at 1119); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir.1979) (per curiam) (allegation that state criminal prosecution was initiated to chill first amendment rights sufficient to remove Younger bar against federal court interference). A showing that a prosecution was brought in retaliation for or to discourage the exercise of constitutional rights “will justify an injunction regardless of whether valid convictions conceivably could be obtained.” Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.1981) (emphasis added). The state does not have any legitimate interest in pursuing such a prosecution; “[pjerhaps the most important comity rationale of Younger deference — that of respect for the State’s legitimate pursuit of its substantive interests—is therefore" }, { "docid": "22564615", "title": "", "text": "declaratory judgment. Younger v. Harris, supra; Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Equitable intervention is appropriate only when there exist special circumstances which create a threat of great, immediate, and irreparable injury. Kugler v. Helfant, 421 U.S. 117, 123, 95 S.Ct. 1524, 1530, 44 L.Ed.2d 15 (1975); Younger, 401 U.S. at 46, 91 S.Ct. at 751. Prosecutions taken in bad faith or for the purpose of harassment fall within this exception. Younger, 401 U.S. at 49-54, 91 S.Ct. at 753; Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir. 1981); cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979), aff’d after remand, 638 F.2d 801 (5th Cir. 1981); Shaw v. Garrison, 467 F.2d 113, 119-22 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). Such a situation is present in this case. We find that, in the absence of credible evidence that Rowe testified untruthfully or otherwise failed to perform his part of the bargain, the prosecution of Rowe, after Rowe was assured of immunity from prosecution by state prosecutors, is per se a bad faith prosecution. The record discloses that on at least one occasion the Attorney General and the Assistant Attorney General of Alabama met with Rowe and FBI agents to discuss the conditions under which Rowe would agree to testify against the Klansmen and a deal was struck: Rowe was given assurances of immunity from prosecution in return for his testimony. This grant of immunity was not specifically authorized by statute, but the state’s highest legal officers assured Rowe that he would not be indicted or prosecuted for any of his activity on the occasion of the murder. The quid pro quo of this bargain is obvious. Rowe was literally the prosecution’s entire case. Applying the concept of equitable immunity to the promise made by the state prosecutors, the District Court held that the promise should be enforced, yet inexplicably limited Rowe’s immunity to use immunity. This characterization is wrong as a" }, { "docid": "17308321", "title": "", "text": "1177, 1182 (8th Cir.1981). . In a thorough and thoughtful opinion, H. Lee Sarokin, a distinguished federal district judge, recently surveyed the types of impermissibly-motivated state prosecutions that have been held enjoinable under the bad faith exception to the Younger doctrine: courts have found bad faith where prosecutors have instituted charges in violation of a prior immunity agreement, Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982); where a prosecutor has pursued highly questionable charges against the plaintiff apparently for the sole purpose of gaining publicity for himself, Shaw v. Garrison, 467 F.2d 113 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); where a prosecution is motivated by a purpose to retaliate for or to deter the filing of a civil suit against state officers, Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979); and, specifically, where a prosecution has been instituted to harass and punish the federal plaintiffs for having exercised their first amendment rights in criticizing public officials. Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.) (per curiam), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); see also Herz v. Degnan, 648 F.2d 201, 209-10 (3d Cir.1981) (state Attorney General’s institution of license revocation proceeding on grounds for which no authority existed strongly suggested that \"bad faith” exception to Younger principle would apply, if Younger were relevant to proceeding in question); Bishop v. State Bar of Texas, 736 F.2d 292 (5th Cir.1984); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir.1979); Timmerman v. Brown, 528 F.2d 811 (4th Cir.1975). The threat of multiple prosecutions may be additional evidence of bad faith, see, e.g., Krahm v. Graham, 461 F.2d 703 (9th Cir.1972), but is not inevitably required to establish bad faith. Fitzgerald v. Peek, 636 F.2d at 944; Wilson v. Thompson, 593 F.2d at 1381. An injunction may also issue to enjoin consideration of charges by a demonstrably biased tribunal. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). Wichert v. Walter, 606 F.Supp. 1516, 1521 (D.N.J.1985). . Lewellen refers to this cause" }, { "docid": "6681190", "title": "", "text": "result of these discussions, the district attorney informed the distributor and local retailers that unless they signed a consent decree agreeing to cease distribution of these materials, they would be indicted for violating the state’s obscenity laws. Other threats of prosecution were made as well. The distributor then brought suit against the prosecutor, who immediately initiated grand jury proceedings against the distributor and others. The District Court held that the prosecutor’s conduct amounted to a system of informal administrative prior restraints which was unconstitutional under Bantam Books. Accordingly, the court entered an injunction preventing the defendants from instituting criminal proceedings against plaintiffs for actions occurring prior to the filing of the lawsuit. Id. at 568. In Black Jack Distributors, Inc. v. Beame, 433 F.Supp. 1297 (S.D.N.Y.1977), plaintiffs, vendors of sexually explicit materials, had alleged that the Police Department and the District Attorney’s Office were engaged in a joint effort to clamp down on sexually oriented businesses in Manhattan in general and, more specifically, to force plaintiffs out of business. Daily arrests and seizures were made at plaintiffs’ premises “in a manner calculated to maximize the negative impact on plaintiffs’ business.” Id. at 1306. Defendants' admitted purpose was to discourage plaintiffs’ employees from continuing to work in plaintiffs’ stores and, ultimately, to close the stores or force them to abandon the sale of sexually oriented materials. Id. at 1307. The court granted a preliminary injunction which prevented the New York City Police Commissioner from harassing plaintiffs through enforcement of obscenity laws which were undertaken in bad faith and for the purpose of injuring plaintiffs’ business. The other cases cited in plaintiffs’ memorandum support their argument, i.e., it is within the equitable powers of a federal court to issue injunctions preventing bad faith prosecutions which are brought to discourage First Amendment activities. See Lewellen v. Raff, 843 F.2d 1103 (8th Cir.1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989); Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979); Krahm" }, { "docid": "14212615", "title": "", "text": "is any improper motive to be found in the prosecution memorandum prepared by Lambert and upon which Benson relied in deciding to seek an indictment. Dist.Ct.Op. at 7. The court therefore denied the motion to dismiss the indictment. The defendants appeal, arguing that (1) the district court applied the incorrect legal standard in determining that the participation of Benson cleansed the prosecution of any improper motives, and (2) the Utah prosecution is motivated by a punitive animus and bad faith desire to prevent the appellants from engaging in constitutionally protected activities. At oral argument, the counsel for the appellants emphasized that the relief requested was remand to the district court for factual findings concerning the effect of any improper prosecutorial motives on the decision to seek an indictment. The government moved for a dismissal of the appeal for lack of jurisdiction and also met the appellants’ substantive contentions. III. The overarching consideration that forms the backdrop of the district court proceedings is whether the foregoing facts activate the constitutional precept that a prosecution motivated by a desire to discourage expression protected by the First Amendment is barred and must be enjoined or dismissed, irrespective of whether the challenged action could possibly be found to be unlawful. See Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (“[T]he decision to prosecute may not be ‘deliberately based upon an unjustifiable standard’ ... including the exercise of protected statutory and constitutional rights.”); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1975); Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). See also Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981). The appellants contend before us, as they did before the district court, that the First Amendment affords scant protection unless it is understood to include “a right not to be tried.” United States" }, { "docid": "17308291", "title": "", "text": "401 U.S. at 44, 91 S.Ct. at 750). Despite the concerns underlying the Younger abstention principle, however, in certain cases the duty of the federal courts to vindicate and protect federal rights must prevail over the policy against federal court interference with state criminal proceedings. The federal courts have consistently and repeatedly affirmed that their abhorrence of enjoining a pending state prosecution must yield when the state prosecution threatens a party with “great and immediate irreparable injury.” See, e.g., Younger, 401 U.S. at 56, 91 S.Ct. at 757; Dombrowski v. Pfister, 380 U.S. 479, 485-87, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965); Collins v. County of Kendall, 807 F.2d 95, 98 (7th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 3228, 97 L.Ed.2d 734 (1987); Rowe v. Griffin, 676 F.2d 524, 525 (11th Cir.1982); Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Munson v. Janklow, 563 F.2d 933, 935 (8th Cir.1977); Timmerman v. Brown, 528 F.2d 811, 815 (4th Cir.1975). The requisite threatened injury must be more than simply “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution * * Younger, 401 U.S. at 46, 91 S.Ct. at 751. The injury threatened is both great and immediate, however, when “defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights,” Dombrowski, 380 U.S. at 485, 85 S.Ct. at 1120, or when the prosecution is initiated in bad faith or to harass the defendant. See, e.g., Cameron v. Johnson, 390 U.S. 611, 617-18, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968); Central Ave. News, Inc. v. City of Minot, 651 F.2d 565, 568-70 (8th Cir.1981). In this context, bad faith “generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction.” Kugler v. Helfant, 421 U.S. 117, 126 n. 6, 95 S.Ct. 1524, 1531 n. 6, 44 L.Ed.2d 15 (1975); see also Central Ave. News, 651 F.2d at 570. Bad faith and harassing prosecutions also encompass those prosecutions that are initiated to retaliate" }, { "docid": "1955705", "title": "", "text": "this issue, 401 U.S. at 54, 91 S.Ct. at 755, the Supreme Court subsequently determined that § 2283 does not preclude § 1983 actions. See Mitchum v. Foster, 407 U.S. 225, 242-43, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972). . The terms \"bad faith\" and \"to harass” may have slightly different meanings, although they will, to a large degree, overlap. Ordinarily, a bad faith prosecution will not be predicated upon probable cause. See Kugler v. Helfant, 421 U.S. 117, 126 n. 6, 95 S.Ct. 1524, 1531 n. 6, 44 L.Ed.2d 15 (1975). However, if prosecutions are brought for the purpose of chilling or preventing a defendant from exercising his or her constitu tional rights, this may constitute a harassing and/or bad faith prosecution, even though the charges are predicated on probable cause. See, e.g., Perez v. Ledesma, 401 U.S. 82, 118 n. 11, 91 S.Ct. 674, 693 n. 11, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part and dissenting in part) (\"Bad-faith harassment can, of course, take many forms, including arrests and prosecutions under valid statutes where there is no reasonable hope of obtaining a conviction, and a pattern of discriminatory enforcement designed to inhibit the exercise of federal rights.”) (citations omitted); Cullen v. Fliegner, 18 F.3d 96, 103-04 (2d Cir.) (\"a refusal to abstain is also justified [even when there is a reasonable expectation of a successful prosecution] where a prosecution ... has been brought to retaliate for or to deter constitutionally protected conduct”), cert. denied, — U.S. —, 115 S.Ct. 480, 130 L.Ed.2d 393 (1994); United States v. P.H.E., Inc., 965 F.2d 848, 853 (10th Cir.1992) (“[A] prosecution motivated by a desire to discourage expression protected by the First Amendment is barred and must be enjoined or dismissed, irrespective of whether the challenged action could possibly be found to be lawful.”) (emphasis added); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.) (per curiam) (\"A [showing of retaliation] will justify an injunction regardless of whether valid convictions could conceivably be obtained.”) (emphasis added), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981). ." }, { "docid": "8084270", "title": "", "text": "Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981) (per curiam) (prosecution alleged to be in retaliation for criticism of local officials); Turner v. LaBelle, 251 F.Supp. 443, 447 (D.Conn.1966) (allegation that prosecution was designed to “discourage civil rights activity”). Accordingly, the Debtor must prove that the prosecution is in bad faith. See also Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 677, 27 L.Ed.2d 701 (1971) (“Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith ... and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” (emphasis added)). Based on the evidence and testimony presented at the hearing, I make the following findings of fact. In March of 1993, Lavonne Burgess informed an employee of the Construction Code Authority, Gyrome Edwards, that the co-op had placed a lien on the Bur-gesses’ home. See generally Mich.Comp. Laws § 570.1107(1) (“Each contractor, subcontractor, supplier, or laborer who provides an improvement to real property shall have a construction hen upon the interest of the owner ... who contracted for the improvement ... and the interest of an owner who has required the improvement.”). The Construction Code Authority is an entity hired by Attica Township, the municipality in which the home is located, to perform building inspections. Edwards then spoke with an attorney for the co-op, who advised him that the hen was filed because the Debtor had not yet paid the co-op for the materials it had supphed. Edwards wrote a letter to Scott on approximately March 25, 1993, asking that an arrest warrant be issued against the Debtor. Exhibit 1. Among the grounds which he cited for issuing a warrant was “Becoming insolvent, filing bankruptcy action, becoming subject to a receivership.” Id. In response to this letter, a warrant was obtained and the Debtor was arrested on April 3, 1993, some 15 months after the discharge entered. At or about the time of the arrest, Edwards made a statement to" }, { "docid": "1955706", "title": "", "text": "under valid statutes where there is no reasonable hope of obtaining a conviction, and a pattern of discriminatory enforcement designed to inhibit the exercise of federal rights.”) (citations omitted); Cullen v. Fliegner, 18 F.3d 96, 103-04 (2d Cir.) (\"a refusal to abstain is also justified [even when there is a reasonable expectation of a successful prosecution] where a prosecution ... has been brought to retaliate for or to deter constitutionally protected conduct”), cert. denied, — U.S. —, 115 S.Ct. 480, 130 L.Ed.2d 393 (1994); United States v. P.H.E., Inc., 965 F.2d 848, 853 (10th Cir.1992) (“[A] prosecution motivated by a desire to discourage expression protected by the First Amendment is barred and must be enjoined or dismissed, irrespective of whether the challenged action could possibly be found to be lawful.”) (emphasis added); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.) (per curiam) (\"A [showing of retaliation] will justify an injunction regardless of whether valid convictions could conceivably be obtained.”) (emphasis added), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981). . See, e.g., Central Ave. News, Inc. v. City of Minot, N.D., 651 F.2d 565, 570 (8th Cir.1981). . See, e.g., P.H.E., 965 F.2d at 860 (holding that the strategy of bringing a series of multiple prosecutions against a defendant to curtail the defendant’s exercise of constitutional rights constituted bad faith and harassment); Fitzgerald, 636 F.2d at 945 (explaining that a showing that a prosecution was brought in retaliation for, or to discourage, the exercise of constitutional rights “will justify an injunction regardless of whether valid convictions conceivably could be obtained”); Heimbach v. Village of Lyons, 597 F.2d 344, 346-47 (2d Cir.1979) (per curiam) (allegation that prosecutions were initiated for the purposes of chilling First Amendment rights and without hope of conviction was sufficient to overcome Younger bar against federal court intervention); Timmerman v. Brown, 528 F.2d 811, 815 (4th Cir.1975) (enjoining prosecution of prisoners as retaliation or to deter filing civil charges against prison guards who attacked them); Wichert v. Walter, 606 F.Supp. 1516, 1521-22 (D.N.J.1985) (enjoining the disciplinary hearing of a teacher brought as" }, { "docid": "12964857", "title": "", "text": "with the district court’s conclusion on this point, see infra 897, it nevertheless was part of its order and compounds the effect of the stay in this case. . See Younger, 401 U.S. at 48, 91 S.Ct. at 752, 27 L.Ed.2d at 678, and discussion infra 898. . We emphasize that we express no view on the merits of Privitera’s claims. . The order is ambiguous in the respect Privit-era argues. It states, \"there is no indication at this time that plaintiff will succeed on the merits, or that the balance of hardships tips sharply in his favor.\" (Emphasis added.) It is possible that the court was finding that, because resolution of the state claims would be necessary in order to determine likelihood of success on the merits, and he had stayed the federal claims to which the request for injunctive relief is attached, it was not possible for Privitera to make a showing \"at this time.” To the extent that reading is accurate, it would implicate the doctrine of exhaustion of remedies and would not be appropriate in a § 1983 case. See supra, 894. . While the Ninth Circuit has not addressed this issue, the Fifth Circuit has held that \"[a] showing of bad faith or harassment is equivalent to a showing of irreparable injury under Younger, and irreparable injury independent of the bad faith prosecution need not be established.” Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981). In that case, the court affirmed an injunction against a state court prosecution, holding that \"[a] bad faith showing of this type will justify an injunction.” Id. at 945; see also Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th Cir.1984) (holding that \"irreparable injury under Younger is established by a sufficient showing of retaliatory or bad faith prosecution, and a federal injunction may issue” against a state bar association’s disciplinary proceeding)." }, { "docid": "17308290", "title": "", "text": "various parties appeal, are discussed in succeeding sections. II. Discussion A. Preliminary Injunctive Relief Prosecutors Raff and Cahoon and Judge Wilkinson appeal from the district court’s entry of a preliminary injunction barring them from proceeding with the state criminal case against Lewellen. For reversal, they argue that the district court should have abstained from exercising jurisdiction, pursuant to the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). They also argue that the district court applied an erroneous legal standard to determine whether the preliminary injunction should issue. We turn first to the question of Younger abstention. In Younger, the Supreme Court held that federal courts as a rule should abstain from exercising jurisdiction when asked to enjoin pending state criminal proceedings. Id. at 56, 91 S.Ct. at 757. The Younger abstention doctrine is a reflection of the public policy that disfavors federal court interference with state judicial proceedings. The doctrine is based on comity and federalism. See Ronwin v. Dunham, 818 F.2d 675, 677 (8th Cir.1987) (citing Younger, 401 U.S. at 44, 91 S.Ct. at 750). Despite the concerns underlying the Younger abstention principle, however, in certain cases the duty of the federal courts to vindicate and protect federal rights must prevail over the policy against federal court interference with state criminal proceedings. The federal courts have consistently and repeatedly affirmed that their abhorrence of enjoining a pending state prosecution must yield when the state prosecution threatens a party with “great and immediate irreparable injury.” See, e.g., Younger, 401 U.S. at 56, 91 S.Ct. at 757; Dombrowski v. Pfister, 380 U.S. 479, 485-87, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965); Collins v. County of Kendall, 807 F.2d 95, 98 (7th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 3228, 97 L.Ed.2d 734 (1987); Rowe v. Griffin, 676 F.2d 524, 525 (11th Cir.1982); Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Munson v. Janklow, 563 F.2d 933, 935 (8th Cir.1977); Timmerman v. Brown, 528 F.2d 811, 815 (4th Cir.1975). The" }, { "docid": "22564614", "title": "", "text": "in Mobile, Alabama. At the conference another district attorney informed Bryan that new information had surfaced regarding the Liuzzo murder. Bryan investigated further and learned that Rowe and the two surviving Klansmen had recently submitted to polygraph tests conducted under the auspices of American Broadcasting Company. Bryan obtained the filmstrip prepared by the television company and the results of the polygraph tests. The test results indicated to Bryan that Rowe had fired the shots which killed Mrs. Liuzzo. Bryan then presented his case to the Lowndes County Grand Jury which returned an indictment for murder against Rowe in September, 1978. Prosecution of Rowe was halted by a federal injunction on October 2, 1980. The injunction was granted by the District Court on the basis that Younger’s abstention doctrine was inapplicable because the prosecution of Rowe was in bad faith and under extraordinary circumstances. Federal jurisdiction was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Ordinarily a federal court should refrain from interfering with a pending state criminal prosecution, either by injunction or declaratory judgment. Younger v. Harris, supra; Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Equitable intervention is appropriate only when there exist special circumstances which create a threat of great, immediate, and irreparable injury. Kugler v. Helfant, 421 U.S. 117, 123, 95 S.Ct. 1524, 1530, 44 L.Ed.2d 15 (1975); Younger, 401 U.S. at 46, 91 S.Ct. at 751. Prosecutions taken in bad faith or for the purpose of harassment fall within this exception. Younger, 401 U.S. at 49-54, 91 S.Ct. at 753; Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir. 1981); cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979), aff’d after remand, 638 F.2d 801 (5th Cir. 1981); Shaw v. Garrison, 467 F.2d 113, 119-22 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). Such a situation is present in this case. We find that, in the absence of credible evidence that Rowe testified untruthfully or otherwise failed to perform" }, { "docid": "10814931", "title": "", "text": "54, 91 S.Ct. at 755. As the Court elaborated in a companion case: “Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 677, 27 L.Ed.2d 701 (1971). Over thirty years of litigation since Younger testify to the strength of its presumption against federal interference; in no case has the Supreme Court found the bad faith exception to apply. 17A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure, § 4255 at 254 (1988). The majority asserts that double jeopardy claims are an “extraordinary circumstance” warranting a departure from Younger. Younger, 401 U.S. at 54, 91 S.Ct. at 755; Perez, 401 U.S. at 85, 91 S.Ct. at 677. Such claims are extraordinary, the majority contends, because forcing a defendant to endure a second trial that violates the Double Jeopardy Clause constitutes irreparable injury. This effort ignores the warning of the Supreme Court that the exceptions to Younger are narrow. Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211-12, 43 L.Ed.2d 482 (1975). None of the decisions invoked by the majority to support its proposition are applicable here. None of those courts enjoined, or even contemplated enjoining, an ongoing state criminal trial, let alone on the basis that an earlier mistrial provoked by defense error was not supported by “manifest necessity.” In fact, though they considered the claims presented by state petitioners, most of those courts did not grant relief on the merits. Satter v. Leapley, 977 F.2d 1259, 1260 (8th Cir.1992); Showery v. Samaniego, 814 F.2d 200, 201 (5th Cir.1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.1984); United States ex rel. Stevens v. Circuit Court of Milwaukee, Wis. Branch VIII, 675 F.2d 946, 949 (7th Cir.1982); Gully v. Kunzman, 592 F.2d 283, 289-90 (6th Cir.), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979);" }, { "docid": "1413020", "title": "", "text": "fail to rebut the presumption that “ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Id. In addition, the courts that have held that an exception to Younger was warranted have found that the prosecutors brought the eases without a reasonable expectation of obtaining a valid conviction, see, e.g., Allee, 416 U.S. at 819, 94 S.Ct. at 2202; Kugler, 421 U.S. at 126 n. 6, 95 S.Ct. at 1531 n. 6, or initiated them to retaliate for or discourage the exercise of constitutional rights. See, e.g., Dombrowski, 380 U.S. at 497, 85 S.Ct. at 1126-27 (prosecution brought to deter plaintiffs’ civil rights efforts); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.) (per curiam), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981) (prosecution brought to deter filing of civil suit against state officers); Wilson v. Thompson, 593 F.2d 1375, 1388 (5th Cir.1979) (prosecution brought to harass and punish plaintiffs for exercising first amendment rights against state officials); Shaw v. Garrison, 467 F.2d 113, 122 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). Plaintiffs have not pled the former, and, as for the latter, they have at most pled that defendants have deliberately violated their civil rights to bring their alleged criminal conduct to light. Finally, plaintiffs’ reliance upon Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982), in making their assertion that the defendants alleged conduct is per se a bad faith prosecution is unfounded. Even though Rowe held that an indictment that violated a prior immunity agreement constituted a “bad faith” prosecution, Rowe is distinguishable from the present case. Rowe involved transactional, not use, immunity. Because transactional immunity contemplates complete protection from prosecution for the offense to which the compelled testimony relates, see Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661, the prosecution of the Rowe plaintiff was in bad faith per se. In the case at bar, however, plaintiffs received only use immunity for their P.G. 118-9 statements, and thus prosecuting them could not be bad faith per" }, { "docid": "8084269", "title": "", "text": "good faith. See, e.g., Linan-Faye Construction Co. v. Housing Authority of the City of Camden, 49 F.3d 915, 924 (3d Cir.1995); Hoffman v. United States, 894 F.2d 380, 385 (Fed.Cir.1990); see also 31A C.J.S., Evidence § 126 (1995) (“It is presumed that all persons act in good faith.... [B]ad faith will not be presumed but must be proved.”). Consistent with this rule, as well as with the Federalism concept underlying Younger, supra p. 404, courts routinely assign the burden of proof to the party seeking injunctive relief when the issue of bad faith on the part of the state-court prosecutor is raised in this or other contexts. See, e.g., Davis, 691 F.2d at 179-80 (prosecution relating to a debt discharged in bankruptcy); In re Scott, 166 B.R. 779, 783-85 (D.Mass.1994) (same); see also, e.g., Younger, 401 U.S. at 54, 91 S.Ct. at 755 (state statute prohibiting “syndicalism” claimed to be contrary to the First and Fourteenth Amendments); United States v. Mullins, 22 F.3d 1365, 1373 (6th Cir.1994) (allegation of selective prosecution based on political association); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981) (per curiam) (prosecution alleged to be in retaliation for criticism of local officials); Turner v. LaBelle, 251 F.Supp. 443, 447 (D.Conn.1966) (allegation that prosecution was designed to “discourage civil rights activity”). Accordingly, the Debtor must prove that the prosecution is in bad faith. See also Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 677, 27 L.Ed.2d 701 (1971) (“Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith ... and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” (emphasis added)). Based on the evidence and testimony presented at the hearing, I make the following findings of fact. In March of 1993, Lavonne Burgess informed an employee of the Construction Code Authority, Gyrome Edwards, that the co-op had placed a lien on the Bur-gesses’ home. See generally Mich.Comp. Laws § 570.1107(1) (“Each contractor, subcontractor, supplier, or" }, { "docid": "17308293", "title": "", "text": "for or discourage the exercise of constitutional rights. See, e.g., Younger, 401 U.S. at 48, 91 S.Ct. at 752 (Dombrowski defendants were threatened with great and immediate irreparable injury because prosecutions were initiated “to discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.”) (quoting Dombrowski, 380 U.S. at 482, 85 S.Ct. at 1119); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir.1979) (per curiam) (allegation that state criminal prosecution was initiated to chill first amendment rights sufficient to remove Younger bar against federal court interference). A showing that a prosecution was brought in retaliation for or to discourage the exercise of constitutional rights “will justify an injunction regardless of whether valid convictions conceivably could be obtained.” Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.1981) (emphasis added). The state does not have any legitimate interest in pursuing such a prosecution; “[pjerhaps the most important comity rationale of Younger deference — that of respect for the State’s legitimate pursuit of its substantive interests—is therefore inapplicable.” Wilson v. Thompson, 593 F.2d 1375, 1383 (5th Cir.1979) (citations omitted). We turn to our review of the district court’s decision with these principles in mind. We can disturb the district court’s decision only if its factual findings are clearly erroneous or if it committed an error of law. See Central Ave., 651 F.2d at 569. After hearing testimony and receiving documentary evidence over a six-day period, the district court made two critical factual findings that persuaded it to issue the preliminary injunction: Lewellen has demonstrated that the criminal prosecution initiated by Raff and Cahoon against Lewellen was brought in bad faith for the purpose of retaliating for the exercise of his constitutionally protected rights. This Court is of the opinion that the criminal charges instituted against Lewellen would not have been filed absent the desire to retaliate against Lewellen for exercising his federally protected rights. Lewellen v. Raff, 649 F.Supp. 1229, 1232 (E.D.Ark.1986). Although the district court’s opinion is somewhat cryptic as to the precise bases for these findings, based on our review" }, { "docid": "12156120", "title": "", "text": "nonbelievers from jury service. The court held that defendant’s claim was without merit because it was constitutionally permissible for jurors to affirm rather than swear. In addition, this court in Madeley v. Kern, 488 F.2d 865 (5th Cir. 1974), dismissed a habeas corpus petition claiming religious discrimination in the empaneling of Texas juries because the jurors were required to take an oath con taining the phrase “so help me God.” The court noted that Craig v. State had construed section 4 to mean that the juror’s oath should be administered in the manner most binding on the individual conscience. Id. at 866. A plausible reading of these cases is that jury service is not an office or position of public trust within the meaning of section 4 of the Texas constitution. Because such an interpretation would moot the constitutional question raised by appellants in this case, abstention is proper. Appellants will have to pursue their jury claims in state court. A final problem concerns a separate strand of the general federal abstention doctrine. Appellants have sought to enjoin further proceedings in four civil cases and one criminal prosecution. Injunctive relief with respect to the criminal prosecution of O’Hair is barred explicitly by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In that case the Supreme Court stated that concerns of comity between the federal and state judicial systems required that federal courts abstain from enjoining state criminal proceedings absent a showing of bad faith prosecution, harassment, or extraordinary instances of irreparable harm. Id. at 44, 53-54, 91 S.Ct. at 750, 754 — 755; accord, Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Henry v. First National Bank of Clarksdale, 595 F.2d 291, 300 (5th Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). The prosecution of O’Hair for disorderly conduct arising from the alleged disruption of a city council meeting does not meet this stringent requirement. Consequently, her claim for injunctive relief must be denied and she" }, { "docid": "8084268", "title": "", "text": "re Brown, 39 B.R. 820, 824, 11 B.C.D. 1048, 10 C.B.C.2d 1098 (Bankr.M.D.Tenn.1984) (“[T]he proof clearly establishes that no motive of punishment or rehabilitation supports this order of restitution.”); In re Kaping, 13 B.R. 621, 623, 8 B.C.D. 16, 4 C.B.C.2d 1529 (Bankr.D.Or.1981) (“[I]f it appears that the principal motivation is not punishment or prevention but to recover a dischargeable debt ..., the bankruptcy court may enjoin criminal prosecution.”); Roussin, 95 B.R. at 275 (“[A] true criminal proceeding in the ‘pro bono publico’ sense is not affected by [a] bankruptcy proceeding involving [a] criminal defendant.... [A] true criminal proceeding [is] not an indirect effort to force a repayment of a dis-chargeable debt.”). It is in this sense that I will use the term “bad faith.” Next to consider is whether it should be incumbent on the Debtor to prove that the prosecution is in bad faith, or whether the Prosecutor should instead be required to establish his good faith. In this regard, it bears emphasizing that the law presumes that public officials conduct themselves in good faith. See, e.g., Linan-Faye Construction Co. v. Housing Authority of the City of Camden, 49 F.3d 915, 924 (3d Cir.1995); Hoffman v. United States, 894 F.2d 380, 385 (Fed.Cir.1990); see also 31A C.J.S., Evidence § 126 (1995) (“It is presumed that all persons act in good faith.... [B]ad faith will not be presumed but must be proved.”). Consistent with this rule, as well as with the Federalism concept underlying Younger, supra p. 404, courts routinely assign the burden of proof to the party seeking injunctive relief when the issue of bad faith on the part of the state-court prosecutor is raised in this or other contexts. See, e.g., Davis, 691 F.2d at 179-80 (prosecution relating to a debt discharged in bankruptcy); In re Scott, 166 B.R. 779, 783-85 (D.Mass.1994) (same); see also, e.g., Younger, 401 U.S. at 54, 91 S.Ct. at 755 (state statute prohibiting “syndicalism” claimed to be contrary to the First and Fourteenth Amendments); United States v. Mullins, 22 F.3d 1365, 1373 (6th Cir.1994) (allegation of selective prosecution based on political association);" } ]

[ { "docid": "21674972", "title": "", "text": "1089, 67 L.Ed.2d 207 (1981). A prima facie case of discrimination raises the inference that discriminatory intent motivated the discharge of the employee. So long as the prima facie case of discrimination does not include direct evidence of discrimination, the employer may rebut the presumption by clearly articulating in a reasonably specific manner a legitimate non-discriminatory reason for the discharge. The plaintiff then must show that the proffered reason was a pretext for the true discriminatory reason. See generally Burdine, supra; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir.1985). On this appeal, Conner challenges the district court’s findings that the Company articulated legitimate reasons for the discharge and that she failed to prove the pretextual nature of those reasons. ARTICULATION OF NON-DISCRIMINATORY REASON FOR DISCHARGE According to the Supreme Court’s opinion in Burdine, supra, a prima facie case of discrimination does not place the burden of persuasion on the employer. The defendant rebuts the presumption of discrimination if it produces evidence that raises a genuine issue of fact as to whether it discriminated against the plaintiff; it must accomplish this by clearly setting forth, through the introduction of competent evidence, the reasons for the plaintiff’s discharge. This Court has characterized this “exceedingly light” burden as being merely a burden of production and not a burden of proof. Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir.1983). Nevertheless, since the defendant’s explanation must be clear and reasonably specific, Burdine, supra, 450 U.S. at 258, 101 S.Ct. at 1096, some proffered reasons will be legally insufficient to rebut a prima facie case. For instance, a defendant relying on a purely subjective reason for discharge will face a heavier burden of production than it otherwise would. Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064, 1067 (5th Cir. Unit B 1981), vacated on other grounds, 456 U.S. 969, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982). The plaintiff here contends that the company failed to articulate a clear and reasonably specific non-discriminatory ground for discharging" } ]

[ { "docid": "23342470", "title": "", "text": "who have a working knowledge of the company. Nothing in the Honda manual implies that the factors listed are the only basis on which a decision can be made. The evidence supports the defendant’s assertion that this criteria has not been used subjectively to accomplish an illegal purpose. Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1499-1500 (11th Cir.1985) (failure to resort to written guidelines is not evidence of pretext); Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir.1989) (agency’s disregard for its own hiring system does not in itself demonstrate that nondiscriminatory explanation is pretextual). Departure from established procedures evident in this case is insufficient to support a conclusion of discriminatory intent. See Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 528 (11th Cir.1983) (plaintiff must demonstrate that defendant departed from written guidelines in an effort to accomplish a discriminatory purpose). Plaintiff points out that out of approximately 860 Honda dealers nationwide only two are black. Statistical evidence is an appropriate method for demonstrating both a prima facie case of discrimination and pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1258 (10th Cir.1988); Tanner v. McCall, 625 F.2d 1183, 1192-93 n. 16 (5th Cir.1980) (statistics can be used to show that defendant’s asserted reasons for decision were a pretext); Person v. J.S. Alberici Construction Co., 640 F.2d 916, 919 (8th Cir.1981) (statistics can be used to show discriminatory motive); cf. Patterson, 491 U.S. at 187-88, 109 S.Ct. at 2378-79, 105 L.Ed.2d at 157-58 (plaintiff is not to be limited in the manner used to show pretext). Statistics such as these, however, without an analytic foundation, are virtually meaningless. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). To say that very few blacks have been selected by Honda does not say a great deal about Honda’s practices unless we know how many blacks have applied and failed and compare that to the success rate of equally qualified white applicants. Although" }, { "docid": "23342462", "title": "", "text": "case and deny the credibility of defendant’s witnesses. Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986). Throughout the proceeding the burden of persuasion and the burden of proving intentional discrimination remains with the plaintiff. Accordingly, despite the general presumption against using summary judgment to resolve the largely factual questions concerning discriminatory intent, Beard v. Annis, 730 F.2d 741, 743 (11th Cir.1984), it is possible for the defendant to present such strong evidence of a nondiscriminatory rationale that summary judgment is warranted. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 596 (11th Cir.1987). If the defendant’s proffer of credible, nondiscriminatory reasons for its actions is sufficiently probative, then the plaintiff must come forward with specific evidence demonstrating that the reasons given by defendant were a pretext for discrimination. It does not appear from this record that the plaintiff has done that in this case. The district court held that the two reasons articulated by defendants for not selecting either plaintiff’s application or either of the other two applications were legitimate and nondiscriminatory. The case turns on whether these were the real reasons, or simply pretexts given for a decision that was actually based on race. On this point, not surprisingly, there is no direct evidence. As the plaintiff argues, seldom is there direct evidence of intentional racial discrimination. Grigsby, 821 F.2d at 595 (McDonnell Douglas- Burdine test is designed to ease burdens on discrimination plaintiffs when direct evidence of discrimination is lacking). The district court carefully examined the circumstantial evidence which plaintiff asserts demonstrates that these reasons are pretextual: differences in treatment between plaintiff and the Hugheses, defendants’ failure to seriously consider plaintiff’s application, selection of a less qualified white applicant over a more qualified minority applicant, deviations from the policy or practice of defendants regarding new dealerships, statistical evidence, and an asserted lack of credibility in the reasons asserted by defendant. Partially relying on the fact that two white applicants, both of whom had filed applications that satisfied Honda’s minimum requirements, also did not receive the dealership, the district court ruled that the plaintiff’s evidence was not" }, { "docid": "23342474", "title": "", "text": "the plaintiff, rather it must only show that it had a legitimate nondiscriminatory reason for its action. Crawford v. Western Electric Co., 745 F.2d 1373, 1377 (11th Cir.1984). In any event, in this case, the fact that Honda had experience with the Hugheses makes a point by point comparison of the applicants’ credentials less useful. Plaintiff suggests that his application was not taken seriously and that he was treated differently in the application process from the white candidates. Nix, 738 F.2d at 1186 (discriminatory intent can be shown through inconsistent or unequal treatment of similarly situated individuals); McAlester, 851 F.2d at 1256-59 (same). Plaintiff’s primary contention is that despite repeated requests for additional information he was not given access to internal Honda data which would have been of substantial assistance in preparation of the application while the same information was given to two of the white candidates. Factual disputes about this issue do not control the summary judgment decision, however. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). Plaintiff could not prevail unless he could show that but for his race, he would have received this Honda franchise. This Circuit has stated on numerous occasions that the McDonnell Douglas-Burdine test is merely a tool for analyzing cases in which there is no direct evidence of discrimination. See, e.g., Grigsby, 821 F.2d at 595 (citation omitted); Nix, 738 F.2d at 1184. The test, therefore, is not an end in itself, but is instead a means for sifting through the circumstantial evidence presented to determine if the defendant treated the plaintiff differently because of his race. The ultimate inquiry remains whether the plaintiff has demonstrated that the defendant intentionally discriminated in refusing to enter into a contractual relationship. Grigsby, 821 F.2d at 595. The court is warranted in granting judgment to the defendant unless the plaintiff satisfies the ultimate burden of persuasion by demonstrating that the defendant relied" }, { "docid": "23342468", "title": "", "text": "preferable from the manufacturer’s standpoint to have a dealer sell only one line in a geographic area. Pretext Plaintiff argues that he can prevail, however, if the reasons advanced by Honda are actually pretexts for an underlying discriminatory purpose, despite any facial appearance of neutrality. Initially, plaintiff notes that neither of the justifications espoused by Honda appear in Honda’s own manual discussing the factors relevant to selecting new dealers. Oftentimes, departures from well established guidelines are indicative of attempts to conceal a discriminatory motive through the use of ad hoc criteria which allow the defendant to cloak a discriminatory intent in ostensibly neutral rationales. See Gibralter v. City of New York, 612 F.Supp. 125, 129 (E.D.N.Y.1985) (departures from normal procedures can supply evidence of discriminatory intent); Blair v. Philadelphia Housing Authority, 609 F.Supp. 276, 279 (E.D.Pa.1985) (same). This Court has concluded that selection processes which are conducted in an ad hoc or discretionary manner must be viewed with particular suspicion. Fowler v. Blue Bell, Inc., 737 F.2d 1007, 1011 (11th Cir.1984). Brown suggests that Honda’s deviation from its own manual clearly indicates that the reasons Honda put forth were pretextual. What the plaintiff ignores, however, is that each of the practices complained of affected the two white candidates in precisely the same manner that they affected the plaintiff. Neither Butler nor Walters were existing dealers nor did their applications suggest that they planned on selling only Honda vehicles in Warner Robbins. It is difficult to hold that a practice which affects applicants of all races in the same manner is actually designed to conceal a racially discriminatory motive. Giles v. Ireland, 742 F.2d 1366, 1375-76 (11th Cir.1984) (hiring criteria which affects both blacks and whites equally is not discriminatory); Cannon v. Teamsters & Chauffeurs Union, 657 F.2d 173, 176-77 (7th Cir.1981) (same). Although Honda’s expressed preference for existing dealers did not appear in the manual, Honda did demonstrate that 10 of the last 13 new sites were filled with existing dealers. Honda representatives in this corporate region have consistently demonstrated a preference for individuals with whom they are familiar and" }, { "docid": "23342475", "title": "", "text": "otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). Plaintiff could not prevail unless he could show that but for his race, he would have received this Honda franchise. This Circuit has stated on numerous occasions that the McDonnell Douglas-Burdine test is merely a tool for analyzing cases in which there is no direct evidence of discrimination. See, e.g., Grigsby, 821 F.2d at 595 (citation omitted); Nix, 738 F.2d at 1184. The test, therefore, is not an end in itself, but is instead a means for sifting through the circumstantial evidence presented to determine if the defendant treated the plaintiff differently because of his race. The ultimate inquiry remains whether the plaintiff has demonstrated that the defendant intentionally discriminated in refusing to enter into a contractual relationship. Grigsby, 821 F.2d at 595. The court is warranted in granting judgment to the defendant unless the plaintiff satisfies the ultimate burden of persuasion by demonstrating that the defendant relied on race in making its decision. Nix, 738 F.2d at 1184-85; Clark, 717 F.2d at 529. A review of the record supports the decision that Honda selected the Hugheses not for any discriminatory purpose but because it knew them and had confidence in their abilities. Although the plaintiff has produced scattered pieces of circumstantial evidence, none of it, even taken as a whole, raises sufficient questions to undermine Honda’s nondiscriminatory rationale. Discovery Requests It does not appear that the district court erred in denying plaintiffs motion to reopen discovery. Nearly a year after discovery closed, plaintiff requested that the district court reopen discovery to allow plaintiff to make inquiries into an EEOC agreement with the manufacturing component of Honda’s American operations (HAM Inc.). The EEOC had charged HAM Inc. in that complaint with maintaining discriminatory hiring and promotion practices. HAM Inc., however, is a separate corporation which operates on the opposite end of the industry spectrum. Absent a showing of “particularized need and relevance” plaintiffs may not compel discovery from related corporations or even separate" }, { "docid": "23342466", "title": "", "text": "new dealership in Warner Robbins. McMillian v. Svetanoff, 878 F.2d 186, 189 (7th Cir.1989) (employer’s desire to hire someone with whom it was familiar was legitimate, nondiscriminatory basis for termination); Holder v. City of Raleigh, 867 F.2d 823, 825-26 (4th Cir.1989) (no discriminatory motivation when decision based on favoritism toward relatives even if reasons proffered were pretextual); Waters v. Furnco Const. Corp., 688 F.2d 39, 40 (7th Cir.1982) (hiring workers with whom employer is familiar is legitimate, nondiscriminatory rationale); Aguirre-Molina v. New York State Division of Alcoholism and Alcohol Abuse, 675 F.Supp. 53, 60 (N.D.N.Y.1987) (preference for individual’s with an established record who are “known quantity” is legitimate basis for action). Although Brown questions whether the Honda system is really so complicated that an experienced dealer in another line would not be able to master it in short order, the court’s responsibility was not to second guess the wisdom of Honda’s reasoning, but to determine if the reasons given were merely a cover for a discriminatory intent. A contract may be granted “for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as it [ ] is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984) (citation omitted); Mister v. Illinois Central Gulf R.R. Co., 832 F.2d 1427, 1435 (7th Cir.1987) (absence of “good reasons” does not justify a finding of pretext unless evidence suggests discriminatory intent). Second, Honda alleges that it based part of its decision on the fact that the Hughes-es were the only applicants proposing to sell only Hondas in Warner Robbins. This, too, was a legitimate and nondiscriminatory justification for its decision. Honda could legitimately determine that a dealer that devotes its attention solely to the sale of Hondas would be preferable to one that attempted to sell several different car lines in the same geographic region. Not only would multiple lines distract the owner’s managerial attention, but they would split the dealer’s loyalties between the two or more lines. Even the plaintiff’s expert admitted it would be" }, { "docid": "23342467", "title": "", "text": "reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as it [ ] is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984) (citation omitted); Mister v. Illinois Central Gulf R.R. Co., 832 F.2d 1427, 1435 (7th Cir.1987) (absence of “good reasons” does not justify a finding of pretext unless evidence suggests discriminatory intent). Second, Honda alleges that it based part of its decision on the fact that the Hughes-es were the only applicants proposing to sell only Hondas in Warner Robbins. This, too, was a legitimate and nondiscriminatory justification for its decision. Honda could legitimately determine that a dealer that devotes its attention solely to the sale of Hondas would be preferable to one that attempted to sell several different car lines in the same geographic region. Not only would multiple lines distract the owner’s managerial attention, but they would split the dealer’s loyalties between the two or more lines. Even the plaintiff’s expert admitted it would be preferable from the manufacturer’s standpoint to have a dealer sell only one line in a geographic area. Pretext Plaintiff argues that he can prevail, however, if the reasons advanced by Honda are actually pretexts for an underlying discriminatory purpose, despite any facial appearance of neutrality. Initially, plaintiff notes that neither of the justifications espoused by Honda appear in Honda’s own manual discussing the factors relevant to selecting new dealers. Oftentimes, departures from well established guidelines are indicative of attempts to conceal a discriminatory motive through the use of ad hoc criteria which allow the defendant to cloak a discriminatory intent in ostensibly neutral rationales. See Gibralter v. City of New York, 612 F.Supp. 125, 129 (E.D.N.Y.1985) (departures from normal procedures can supply evidence of discriminatory intent); Blair v. Philadelphia Housing Authority, 609 F.Supp. 276, 279 (E.D.Pa.1985) (same). This Court has concluded that selection processes which are conducted in an ad hoc or discretionary manner must be viewed with particular suspicion. Fowler v. Blue Bell, Inc., 737 F.2d 1007, 1011 (11th Cir.1984). Brown suggests that Honda’s" }, { "docid": "10367291", "title": "", "text": "802-03, 93 S.Ct. 1817. The defendant’s burden is “exceedingly light” and is “one of production, not proof.” Id. at 802, 93 S.Ct. 1817. If the defendant satisfies its burden, the presumption of discrimination is eliminated and the plaintiff must be given an opportunity to prove by a preponderance of the evidence that the legitimate reason offered by the defendant is a pretext for discrimination. Id. A plaintiff may also use statistical evidence to establish a prima facie case of discrimination or pretext. Brown v. American Honda Motor Co., Inc., 939 F.2d 946, 952 (11th Cir.1991). Statistics may be used to establish an individual plaintiffs claim that a pattern or practice of discrimination existed, or simply to bolster the plaintiffs circumstantial evidence of individual disparate treatment. Under the pattern and practice theory, the plaintiff must provide evidence sufficient to establish that impermissible discrimination was the employer’s “standard operating procedure.” Joe’s Stone Crab, 220 F.3d at 1274-75, 1286-87 (internal quotation marks and citation omitted). Even if the statistical evidence is insufficient to meet this standard, evidence establishing a discriminatory pattern “is probative of motive and can therefore create an inference of discriminatory intent with respect to the individual employment decision at issue.” Parker v. Burnley, 693 F.Supp. 1138, 1153 (N.D.Ga.1988) (internal quotation marks and citation omitted). Whether the plaintiff argues that the statistical evidence supports a pattern or practice claim or simply constitutes evidence of disparate treatment, “[t]he ultimate inquiry remains whether the plaintiff has demonstrated that the defendant intentionally discriminated in refusing to enter into a contractual relationship.” Brown, 939 F.2d at 952 (citing Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.1987)). 1. Disparate Treatment In their motion, Defendants apparently do not argue that Plaintiff has failed to establish a prima facie case. Instead, Defendants assert that they have offered legitimate non-discriminatory reasons to rebut any presumption of discrimination in the decisions not to hire or promote Plain tiff. Defendants argue that summary judgment is appropriate because Plaintiff has faded to provide sufficient evidence to establish that these reasons are pretextual. In response, Plaintiff points to facts in" }, { "docid": "21100301", "title": "", "text": "see Brown v. American Honda Motor Co., Inc., 939 F.2d 946, 952 (11th Cir.l991)(stating, in an individual § 1981 case, that “statistical evidence is an appropriate method for demonstrating both a prima facie case of discrimination and pretext.”); Hawkins, 883 F.2d 977, 985 (11th Cir.l989)(noting, in an individual disparate treatment case, that “[a] plaintiff may also establish a prima facie case by presenting statistical proof of a pattern of discrimination” and analyzing the strength of plaintiff’s statistical evidence). However, statistical evidence may be “so flawed as to render it insufficient to raise a jury question.” Furr v. Seagate Technology, Inc., 82 F.3d 980, 986-87 (10th Cir.1996) (citation omitted)(finding plaintiffs’ statistics flawed because they “grouped all employees together regardless of specialty or skill and failed to take into account nondiscriminatory reasons for the numerical disparities.”); see also Brown, supra, 939 F.2d at 952-54 (upholding summary judgment against plaintiff, despite evidence that out of 860 Honda dealers nationwide, only two were black, stating, “Statistics such as these, however, without an analytic foundation, are virtually meaningless. To say that very few blacks have been selected by Honda does not say a great deal about Honda’s practices unless we know how many blacks have applied and failed and compare that to the success rate of equally qualified white applicants.”) (citation omitted). Plaintiff has introduced a report from John T. Meehan, Ph.D. (Plaintiffs Exhibits A, 50). Meehan states: Based on the salaried employee roster for the Montgomery Water Heater Division 87.75% of the management positions were occupied by white males in 1997. White males occupied management positions at the rate of 93.3% in 1996, 90.4% in 1995, 90.4% in 1994 and 90.2% in 1993 (Attachment # 2). In contrast, white males occupied clerical positions at the rate of 31.25% in 1997. These data are based on Mr. Blanz’s definition of a manager (anyone who supervises others). If you define managers in terms of federal job categories “A” or “OM” where males occupy management positions, the rate of the same were 89.6% in 1997, 94.6% in 1996, 89.3% in 1995, 89.1% in 1994 and 90.9% in" }, { "docid": "21100300", "title": "", "text": "In short, whether we analyze Carmichael’s hiring claim under McDonnell Douglas or under Davis, he must point to a job that he was denied because of his race. Carmichael, supra, 738 F.2d at 1131-32 (internal citations omitted). In Carmichael, discussing particular positions not addressed by the district court, the Eleventh Circuit then observed that if the district court found that the plaintiff was not qualified for such jobs or would not have accepted the job if offered, “this would defeat his claim.” Id. at 1132. Thus, it appears from Carmichael that an individual disparate treatment plaintiff may establish a prima facie case of discrimination partially through presentation of statistical evidence, if plaintiff is able to relate that evidence to a particular position that she was denied. See also Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642 n. 5 (11th Cir.l998)(quoting Carmichael, supra, and finding that plaintiff who complained of non-selection to program director position had not carried his burden of production by showing that defendant had never hired a black program director); but see Brown v. American Honda Motor Co., Inc., 939 F.2d 946, 952 (11th Cir.l991)(stating, in an individual § 1981 case, that “statistical evidence is an appropriate method for demonstrating both a prima facie case of discrimination and pretext.”); Hawkins, 883 F.2d 977, 985 (11th Cir.l989)(noting, in an individual disparate treatment case, that “[a] plaintiff may also establish a prima facie case by presenting statistical proof of a pattern of discrimination” and analyzing the strength of plaintiff’s statistical evidence). However, statistical evidence may be “so flawed as to render it insufficient to raise a jury question.” Furr v. Seagate Technology, Inc., 82 F.3d 980, 986-87 (10th Cir.1996) (citation omitted)(finding plaintiffs’ statistics flawed because they “grouped all employees together regardless of specialty or skill and failed to take into account nondiscriminatory reasons for the numerical disparities.”); see also Brown, supra, 939 F.2d at 952-54 (upholding summary judgment against plaintiff, despite evidence that out of 860 Honda dealers nationwide, only two were black, stating, “Statistics such as these, however, without an analytic foundation, are virtually meaningless. To say" }, { "docid": "23342465", "title": "", "text": "on the issue of pretext. Based on both the previous hearing and the evidence presented in this case, the district court concluded that the plaintiff had not demonstrated that the reasons Honda gave for denying Brown’s application were pretextual. Nondiscriminatory Rationales Honda advanced two reasons for its decision to grant the dealership in Warner Robbins to the Hugheses. First, the Hugheses were existing Honda dealers with an excellent record and a familiarity with the company and its way of doing business. Honda’s reasons for selecting Philip and Ashley Hughes were clearly legitimate and nondiscriminatory. It is not at all improper for an employer or a business contemplating a long-term association to prefer doing business with someone with whom they are familiar. The Hugheses had run what was by all accounts an exemplary business in Athens. They were familiar with the Honda product line, its distribution and warranty systems, and managerial approaches to sales tactics and advertising techniques. On that basis alone, Honda could legitimately encourage them to apply and thereafter select them to run the new dealership in Warner Robbins. McMillian v. Svetanoff, 878 F.2d 186, 189 (7th Cir.1989) (employer’s desire to hire someone with whom it was familiar was legitimate, nondiscriminatory basis for termination); Holder v. City of Raleigh, 867 F.2d 823, 825-26 (4th Cir.1989) (no discriminatory motivation when decision based on favoritism toward relatives even if reasons proffered were pretextual); Waters v. Furnco Const. Corp., 688 F.2d 39, 40 (7th Cir.1982) (hiring workers with whom employer is familiar is legitimate, nondiscriminatory rationale); Aguirre-Molina v. New York State Division of Alcoholism and Alcohol Abuse, 675 F.Supp. 53, 60 (N.D.N.Y.1987) (preference for individual’s with an established record who are “known quantity” is legitimate basis for action). Although Brown questions whether the Honda system is really so complicated that an experienced dealer in another line would not be able to master it in short order, the court’s responsibility was not to second guess the wisdom of Honda’s reasoning, but to determine if the reasons given were merely a cover for a discriminatory intent. A contract may be granted “for a good" }, { "docid": "23342464", "title": "", "text": "sufficiently probative to create an issue of fact on the pretext issue. The plaintiff has failed to persuade us that the district court was wrong in this decision. In addition to the material that is usually submitted on a motion for summary judgment, the district court had the advantage of a bench trial on the request for permanent injunction. After that trial, which lasted several days, the court made findings of fact, denied the injunction, and entered a declaratory decree that the Hughes-es, who had intervened, were entitled to become American Honda’s Warner Robbins dealer. The district court properly held that the defendants could not prevail on this motion for summary judgment simply because of the outcome of that proceeding. The parties stipulated that the findings of fact would have no preclusive effect on a jury’s deliberations. The court could not take into consideration any facts then found which resolved disputed evidence. The court could, however, consider the record made at that time to determine whether there was sufficient evidence to present to the jury on the issue of pretext. Based on both the previous hearing and the evidence presented in this case, the district court concluded that the plaintiff had not demonstrated that the reasons Honda gave for denying Brown’s application were pretextual. Nondiscriminatory Rationales Honda advanced two reasons for its decision to grant the dealership in Warner Robbins to the Hugheses. First, the Hugheses were existing Honda dealers with an excellent record and a familiarity with the company and its way of doing business. Honda’s reasons for selecting Philip and Ashley Hughes were clearly legitimate and nondiscriminatory. It is not at all improper for an employer or a business contemplating a long-term association to prefer doing business with someone with whom they are familiar. The Hugheses had run what was by all accounts an exemplary business in Athens. They were familiar with the Honda product line, its distribution and warranty systems, and managerial approaches to sales tactics and advertising techniques. On that basis alone, Honda could legitimately encourage them to apply and thereafter select them to run the" }, { "docid": "23342472", "title": "", "text": "the statistics themselves may be insufficient to demonstrate that the reasons espoused by Honda are not legitimate, they take on a slightly more ominous hue when viewed in conjunction with the criteria used by Honda in this case. In addition to there being only two black Honda dealers nationwide, there are none in this particular corporate region. Plaintiff suggests that a criteria which favors existing dealers under these circumstances is inherently discriminatory in that all existing dealers are white. Moreover, Honda does not disseminate information concerning new dealerships throughout the automobile industry generally, but instead uses a word of mouth system which the plaintiff contends gives yet another advantage to company insiders, all of whom are white. Were this a discriminatory impact case under Title VII, this argument, which maintains that factors or criteria which appear to be neutral actually have a discriminatory effect, might be controlling. Section 1981 requires specific proof of an intent to discriminate, however. Under this type of analysis it is not sufficient to show that the defendant was aware that the particular practice would have a discriminatory impact. Instead, the plaintiff must show that the defendant chose the policy for precisely this purpose. Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1418 (9th Cir.1988). There is no such evidence in this case. Plaintiff argues his application and credentials were superior to those of the Hugheses. According to the plaintiff, his community contacts, net worth, proposed floor space, initial capital investment, and location presented a more favorable application package than that submitted by either the Hugheses or the other two candidates. See Smith v. American Service Co. of Atlanta, 611 F.Supp. 321, 328-29 (N.D.Ga.1984) (choice of a less qualified applicant can serve as evidence of discriminatory intent), aff'd in part, vacated in part, 796 F.2d 1430 (11th Cir.1986). Accepting plaintiffs conclusion that his application was superior to the Hughes-es’ in virtually every listed aspect does not compel a decision in plaintiff’s favor. To rebut plaintiff’s prima facie case, the defendant need not demonstrate that the individual or company selected was actually more qualified than" }, { "docid": "23342473", "title": "", "text": "the particular practice would have a discriminatory impact. Instead, the plaintiff must show that the defendant chose the policy for precisely this purpose. Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1418 (9th Cir.1988). There is no such evidence in this case. Plaintiff argues his application and credentials were superior to those of the Hugheses. According to the plaintiff, his community contacts, net worth, proposed floor space, initial capital investment, and location presented a more favorable application package than that submitted by either the Hugheses or the other two candidates. See Smith v. American Service Co. of Atlanta, 611 F.Supp. 321, 328-29 (N.D.Ga.1984) (choice of a less qualified applicant can serve as evidence of discriminatory intent), aff'd in part, vacated in part, 796 F.2d 1430 (11th Cir.1986). Accepting plaintiffs conclusion that his application was superior to the Hughes-es’ in virtually every listed aspect does not compel a decision in plaintiff’s favor. To rebut plaintiff’s prima facie case, the defendant need not demonstrate that the individual or company selected was actually more qualified than the plaintiff, rather it must only show that it had a legitimate nondiscriminatory reason for its action. Crawford v. Western Electric Co., 745 F.2d 1373, 1377 (11th Cir.1984). In any event, in this case, the fact that Honda had experience with the Hugheses makes a point by point comparison of the applicants’ credentials less useful. Plaintiff suggests that his application was not taken seriously and that he was treated differently in the application process from the white candidates. Nix, 738 F.2d at 1186 (discriminatory intent can be shown through inconsistent or unequal treatment of similarly situated individuals); McAlester, 851 F.2d at 1256-59 (same). Plaintiff’s primary contention is that despite repeated requests for additional information he was not given access to internal Honda data which would have been of substantial assistance in preparation of the application while the same information was given to two of the white candidates. Factual disputes about this issue do not control the summary judgment decision, however. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an" }, { "docid": "10367301", "title": "", "text": "which are highly related to hiring decisions. Plaintiff does not provide statistics comparing employees with equivalent work experience in specific job categories or job progressions, or outcomes for those employees, both black and white, who had actually applied for posted positions challenged by Plaintiff. Plaintiff relies instead on a statistical analysis of a company-wide data pool and makes no attempt to narrow the data pool to the locations in which he worked or the positions which he challenges. As this Court noted in the order denying class certification, the probative value of Plaintiff’s statistical evidence is therefore highly questionable, in significant part due to the treatment of factors such as experience, education, and specific promotion processes. Cooper v. Southern Company, 205 F.R.D. 596, 613-14 (N.D.Ga.2001). The analytical deficiencies of Plaintiff’s statistics diminish the probative value of this evidence such that it cannot by itself support a claim of disparate treatment. See Brown v. American Honda Motor Co., 939 F.2d 946, 952 (11th Cir.1991) (holding that summary judgment was appropriate where plaintiffs statistical evidence, which lacked specific analytical foundation and thus failed to show that employer maintained discriminatory intent, was insufficient to establish prima facie case or pretext); Hawkins v. Ceco Corp., 883 F.2d 977, 985 (11th Cir.1989) (holding that plaintiffs statistical evidence failed to establish prima facie case or pretext where evidence failed to make specific analytical comparisons); cf. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 330 (5th Cir.1977) (holding that plaintiffs evidence of statistical disparities in hiring, promotion and compensation was sufficient to support claim of intentional discrimination where the employment decisions were based on completely subjective criteria). Because Plaintiff has failed to establish pretext with respect to all of Defendants’ asserted reasons, Defendants are entitled to summary judgment with respect to this claim. See Chapman v. A. I. Transport, 229 F.3d 1012 (11th Cir.2000); Combs, 106 F.3d at 1529. Job Requisition Number 008603 Defendants assert that Plaintiff was not awarded a position at this opening because the opening was rescinded before being filled. Defendants cite to the declaration of Jim Weldon to support this position." }, { "docid": "23342476", "title": "", "text": "on race in making its decision. Nix, 738 F.2d at 1184-85; Clark, 717 F.2d at 529. A review of the record supports the decision that Honda selected the Hugheses not for any discriminatory purpose but because it knew them and had confidence in their abilities. Although the plaintiff has produced scattered pieces of circumstantial evidence, none of it, even taken as a whole, raises sufficient questions to undermine Honda’s nondiscriminatory rationale. Discovery Requests It does not appear that the district court erred in denying plaintiffs motion to reopen discovery. Nearly a year after discovery closed, plaintiff requested that the district court reopen discovery to allow plaintiff to make inquiries into an EEOC agreement with the manufacturing component of Honda’s American operations (HAM Inc.). The EEOC had charged HAM Inc. in that complaint with maintaining discriminatory hiring and promotion practices. HAM Inc., however, is a separate corporation which operates on the opposite end of the industry spectrum. Absent a showing of “particularized need and relevance” plaintiffs may not compel discovery from related corporations or even separate units of the same corporation. Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir.1978). The hiring practices used by a related subsidiary involved in production and located in Ohio are simply not relevant to the intent of a separate corporation involved in sales and located in Georgia. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1084-85 (11th 1990). Neither does it appear that the district court erred in denying plaintiff’s motion to compel production of information by the defendant concerning all blacks who had communicated an interest in becoming a Honda dealer, concerning all Honda officers who had been informed of the present suit, and concerning all governmental or private organizations that have complained of discriminatory practices to Honda in the past. These matters are generally consigned to the discretion of the district court. Earley, 907 F.2d at 1085 (denial of motion to compel nationwide discovery will only be reversed if it constitutes an abuse of discretion). The court was within its discretion in holding that the information sought was simply too broad." }, { "docid": "23342469", "title": "", "text": "deviation from its own manual clearly indicates that the reasons Honda put forth were pretextual. What the plaintiff ignores, however, is that each of the practices complained of affected the two white candidates in precisely the same manner that they affected the plaintiff. Neither Butler nor Walters were existing dealers nor did their applications suggest that they planned on selling only Honda vehicles in Warner Robbins. It is difficult to hold that a practice which affects applicants of all races in the same manner is actually designed to conceal a racially discriminatory motive. Giles v. Ireland, 742 F.2d 1366, 1375-76 (11th Cir.1984) (hiring criteria which affects both blacks and whites equally is not discriminatory); Cannon v. Teamsters & Chauffeurs Union, 657 F.2d 173, 176-77 (7th Cir.1981) (same). Although Honda’s expressed preference for existing dealers did not appear in the manual, Honda did demonstrate that 10 of the last 13 new sites were filled with existing dealers. Honda representatives in this corporate region have consistently demonstrated a preference for individuals with whom they are familiar and who have a working knowledge of the company. Nothing in the Honda manual implies that the factors listed are the only basis on which a decision can be made. The evidence supports the defendant’s assertion that this criteria has not been used subjectively to accomplish an illegal purpose. Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1499-1500 (11th Cir.1985) (failure to resort to written guidelines is not evidence of pretext); Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir.1989) (agency’s disregard for its own hiring system does not in itself demonstrate that nondiscriminatory explanation is pretextual). Departure from established procedures evident in this case is insufficient to support a conclusion of discriminatory intent. See Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 528 (11th Cir.1983) (plaintiff must demonstrate that defendant departed from written guidelines in an effort to accomplish a discriminatory purpose). Plaintiff points out that out of approximately 860 Honda dealers nationwide only two are black. Statistical evidence is an appropriate method for demonstrating both a prima facie case of discrimination" }, { "docid": "23237694", "title": "", "text": "and procedures when conducting the RIF demonstrates that its expressed reasons for terminating the six supervisors are post hoc pretexts for age discrimination. The district court rejected this inference, concluding that the EEOC had not shown a discriminatory connection between TI’s failure to follow its policies and its selection of supervisors subject to the RIF. This court has observed that an employer’s “disregard of its own hiring system does not of itself conclusively establish that improper discrimination occurred or that a nondiscriminatory explanation for an action is pretextual.” Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir.1989); see also, Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir.), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). This court elaborated in Moore that [pjroof that an employer did not follow correct or standard procedures in the termination or demotion of an employee may well serve as the basis for a wrongful discharge action under state law. As we have stated, however, the ADEA was not created to redress wrongful discharge simply because the terminated worker was over the age of forty. A discharge may well be unfair or even unlawful and yet not be evidence of age bias under the ADEA. To make out an ADEA claim, the plaintiff must establish some nexus between the employment actions taken by the employer and the employee’s age. [A] bald assertion that one exists ... simply will not suffice. Id. 990 F.2d at 819 (citing Bienkowski, 851 F.2d at 1508 n. 6). The EEOC has not demonstrated such a nexus; rather, as in Moore, its argument rests on a bald assertion that one exists. What happened in this case, without dispute, is that TI created a new layoff policy regarding supervisors that disregarded seniority; the company did not simply fail to follow the usual seniority-protective policy. As previously summarized, TI carefully outlined why it disregarded the seniority protections typically afforded to its employees in a RIF and why it did not consider performance evaluations or KPAs when determining which supervisors to retain. The EEOC failed to undermine" }, { "docid": "23342471", "title": "", "text": "and pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1258 (10th Cir.1988); Tanner v. McCall, 625 F.2d 1183, 1192-93 n. 16 (5th Cir.1980) (statistics can be used to show that defendant’s asserted reasons for decision were a pretext); Person v. J.S. Alberici Construction Co., 640 F.2d 916, 919 (8th Cir.1981) (statistics can be used to show discriminatory motive); cf. Patterson, 491 U.S. at 187-88, 109 S.Ct. at 2378-79, 105 L.Ed.2d at 157-58 (plaintiff is not to be limited in the manner used to show pretext). Statistics such as these, however, without an analytic foundation, are virtually meaningless. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). To say that very few blacks have been selected by Honda does not say a great deal about Honda’s practices unless we know how many blacks have applied and failed and compare that to the success rate of equally qualified white applicants. Although the statistics themselves may be insufficient to demonstrate that the reasons espoused by Honda are not legitimate, they take on a slightly more ominous hue when viewed in conjunction with the criteria used by Honda in this case. In addition to there being only two black Honda dealers nationwide, there are none in this particular corporate region. Plaintiff suggests that a criteria which favors existing dealers under these circumstances is inherently discriminatory in that all existing dealers are white. Moreover, Honda does not disseminate information concerning new dealerships throughout the automobile industry generally, but instead uses a word of mouth system which the plaintiff contends gives yet another advantage to company insiders, all of whom are white. Were this a discriminatory impact case under Title VII, this argument, which maintains that factors or criteria which appear to be neutral actually have a discriminatory effect, might be controlling. Section 1981 requires specific proof of an intent to discriminate, however. Under this type of analysis it is not sufficient to show that the defendant was aware that" }, { "docid": "22333825", "title": "", "text": "“incredible in the light of the facts found herein”, “that said belief was not validly held”, and that this reason “was in fact a pretext for prohibited racial discrimination under Title VII”. The court found that “defendant terminated plaintiff on January 23, 1976, because of his race”. II. A Title VII disparate treatment plaintiff must prove that the defendant acted with discriminatory purpose. Clark v. Huntsville City Board of Education, 11 Cir.1983, 717 F.2d 525, 529. Because direct evidence of discriminatory animus can be difficult to produce, it is often appropriate to analyze circumstantial evidence of discrimination according to the three-step procedure first developed in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Under that procedure, the plaintiff must create an inference of discrimination by establishing a prima facie case. If he does so, the defendant must “articulate some legitimate, nondiscriminatory reason for the employee’s rejection”. Id. at 802, 93 S.Ct. at 1824. The plaintiff may then attempt to show that these reasons are pretextual or may present other evidence to show that discriminatory intent was more likely the cause of the employer’s actions. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The McDonnell Douglas-Burdine framework is a valuable tool for analyzing evidence in cases involving alleged disparate treatment. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126, at 1129-1130 [1984]. But that framework is only a tool. The “ultimate question” in a disparate treatment case is not whether the plaintiff established a prima facie case or demonstrated pretext, but “whether the defendant intentionally discriminated against the plaintiff”. United States Postal Service Board of Governors v. Aikens, 1983, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403, 409-10; see also Lehman v. Trout, 1984, — U.S. -, 104 S.Ct. 1404, 79 L.Ed.2d 732. A McDonnell Douglas prima facie case creates an inference of discrimination by eliminating “the most common nondiscriminatory reasons for the plaintiff’s rejection”. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94. If the employer’s articulated reasons are then found to be pretextual, leaving no valid reason for" } ]

[ { "docid": "22360397", "title": "", "text": "by Judge Judd, the court, on February 8, 1974, dismissed the indictment, from which the Government appeals. DISCUSSION To support a defense of selective or disciminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i. e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as “intentional and purposeful discrimination.” See Snow-den v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1943); Moss v. Hor-' nig, 314 F.2d 89, 92-93 (2d Cir. 1963); United States v. Ahmad, 347 F.Supp. 912 (M.D.Pa.1972), aff’d sub nom., United States v. Berrigan, 482 F.2d 171 (3rd Cir. 1973); United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc); United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), See Comment, “The Right to Nondiscriminatory Enforcement of State Penal Laws,” 61 Colum.L.Rev. 1103 (1961). Mere “conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). In the present case, in an effort to support his defense of selective prosecution, Berrios sought a hearing and disclosure of certain government records solely upon the basis of his counsel’s affidavit to the effect that he and his clients “believe” that facts indicating a vindictive motive on the part of the government exist (as outlined above) and their further belief that “there are hundreds of unions who have men with prison records sitting as officers.” In support of the latter claim, although Ber-rios introduced a letter from the Department of Justice to the effect that there had been three indictments of" } ]

[ { "docid": "10381870", "title": "", "text": "v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974); Attorney General of the U.S., 684 F.2d at 947; United States v. Heidecke, 900 F.2d 1155, 1158 (7th Cir.1990), or come forward with “some evidence tending to show the existence of the essential elements of the defense,” United States v. Schmucker, 815 F.2d 413, 418 (6th Cir.1987) (quoting United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985) and Berrios, 501 F.2d at 1211), or “take the question past the frivolous state.” United States v. Hazel, 696 F.2d 473, 475 (6th Cir.1983) (quoting United States v. Larson, 612 F.2d 1301, 1304-05 (8th Cir.1980)); United States v. Erne, 576 F.2d 212, 216 (9th Cir.1978). As Justice Marshall has remarked, This standard ... is consistent with our exhortation that “[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” United States v. Nixon, 418 U.S. [683,] 709 [94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) ]. It also recognizes that most of the relevant proof in selective prosecution cases will normally be in the Government’s hands. Cf. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 [82 S.Ct. 486, 491, 7 L.Ed.2d 458] (1962). At the same time, the standard adequately protects the Government from attempts by the defense to seek discovery as a means of harassment or of delay. See United States v. Murdock, [548 F.2d 599, 600 (5th Cir.1977) ]. Wayte, 470 U.S. at 624, 105 S.Ct. at 1589 (Marshall, J. dissenting). This burden requires that the defendant show a colorable claim on both elements of the selective prosecution defense. Attorney General of the U.S., 684 F.2d at 947-48. Moreover, the defendant must demonstrate that the materials sought by discovery would be probative of the elements for selective prosecution. Berrios, 501 F.2d at 1211-12. However, the defense can not be used to commence a fishing expedition or to obtain discovery otherwise irrelevant" }, { "docid": "10381869", "title": "", "text": "(D.C.Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980). In other words, the defendant must show both a discriminatory effect and discriminatory purpose. Wayte, 470 U.S. at 608, 105 S.Ct. at 1531. This is a heavy burden. Eklund, 733 F.2d at 1290. The standard for obtaining an evidentiary hearing on the matter is somewhat lower: A hearing is necessitated only when the motion alleges sufficient facts to take the question past the frivolous state, United States v. Erne, 576 F.2d 212 (9th Cir.1978), United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974), and raises a reasonable doubt as to the prosecutor’s purpose. United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975); United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973) (en banc). Eklund, 733 F.2d at 1290-1291. The standard for discovery is even lower. The defendant must merely make out “a colorable entitlement to the defense of discriminatory prosecutions,” Berrigan, 482 F.2d at 181 (citations omitted); United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974); Attorney General of the U.S., 684 F.2d at 947; United States v. Heidecke, 900 F.2d 1155, 1158 (7th Cir.1990), or come forward with “some evidence tending to show the existence of the essential elements of the defense,” United States v. Schmucker, 815 F.2d 413, 418 (6th Cir.1987) (quoting United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985) and Berrios, 501 F.2d at 1211), or “take the question past the frivolous state.” United States v. Hazel, 696 F.2d 473, 475 (6th Cir.1983) (quoting United States v. Larson, 612 F.2d 1301, 1304-05 (8th Cir.1980)); United States v. Erne, 576 F.2d 212, 216 (9th Cir.1978). As Justice Marshall has remarked, This standard ... is consistent with our exhortation that “[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” United" }, { "docid": "14016199", "title": "", "text": "“colorable basis” for the claim. Wayte, 105 S.Ct. at 1539 (Marshall, J., dissenting, citing the following courts of appeals cases: United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir.1973)). In order for the defendant to show a “colorable basis” entitling him to discover the requested government documents, he must introduce “some evidence tending to show the existence of the essential elements of the defense.” Berrios, 501 F.2d at 1211. In the instant case, there is no evidence whatsoever that the defendant was singled out for prosecution because of his race. This conclusion is buttressed by the fact that the government was able to and indeed did introduce the defendant’s confession at the federal trial, while the state did not introduce this confession at the state trial in which the defendant was tried jointly with the other assailants (n. 1 supra). V Defendant’s final contention is that the district judge abused his discretion in sentencing defendant to fifty years for the kidnapping charge, and five years each for the Mann Act and conspiracy charges, to run concurrently with each other and with the kidnapping charge. We disagree. The trial judge has broad discretion with respect to the imposition of a sentence within the statutory limits. United States v. Brubaker, 663 F.2d 764, 768 (7th Cir.1981). A sentence will not be altered on appeal merely because it is too severe, unless the trial judge failed to exercise any discretion whatsoever in imposing the sentence. Id. In the instant case, Judge Beatty acted within this broad discretion. The sentence Mitchell received is substantially less than the statutory maximum of life imprisonment plus ten years and consequently is within statutory limits. 18 U.S.C. §§ 371,1201(a), 2421, 2422. Defendant claims that the judge abused his discretion because given defendant’s lack of prior criminal history and the testimony of his employer and neighbor as to his good character, the sentence was too severe. However, the" }, { "docid": "12083459", "title": "", "text": "the earlier state court indictment. Moreover, Heidecke pointed to the transfer of his former state prosecutors to prosecutorial positions in the federal government. Hei-decke postulated that the state prosecutors used their new federal offices to avenge their earlier loss in state court, and he sought access to any evidence that would have helped prove this hypothesis. Thus, Heidecke has not suggested the existence of evidence that would directly prove actual animus, rather he suggests that we presume prosecutorial malice from these facts. The threshold showing that the defendant must make to compel discovery on the issue of vindictive prosecution is a question of first impression. In the related area of selective prosecution, this court and other courts have firmly settled upon a rule that requires the defendant to show a colorable basis for the claim. See Wayte v. United States, 470 U.S. 598, 623-24, 105 S.Ct. 1524, 1538-39, 84 L.Ed.2d 547 (1985) (Marshall, J., dissenting); United States v. Kerley, 787 F.2d 1147, 1150 (7th Cir.1986); United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985); United States v. Kahl, 583 F.2d 1351, 1355 (5th Cir.1978); United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir.1974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir.1973). Forcing the defendant to come forward with some evidence to support a charge of selective prosecution protects the interests in open and frank discussions within prosecutorial offices, see Berrigan, 482 F.2d at 181; protects the government from harassment or delay by criminal defendants, see Wayte, 470 U.S. at 624, 105 S.Ct. at 1539 (Marshall, J., dissenting); and frees the judicial system of criminal trials with irrelevant massive discovery, see Murdock, 548 F.2d at 600. At the same time, the relatively low burden recognizes that “most of the relevant proof in selective prosecution cases will normally be in the Government’s hands.” Wayte, 470 U.S. at 624, 105 S.Ct. at 1539 (Marshall, J., dissenting). Some courts have suggested that defendants have to show more than a merely" }, { "docid": "15672401", "title": "", "text": "a claim of selective prosecution the defendant must Show both that the prosecutorial selection “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985). However, Wayte made clear that “[i]t is appropriate to judge selective prosecution claims according to ordinary equal protection standards.” Id. A direct showing of discriminatory intent is not always necessary to make out an equal protection claim; under ordinary equal protection standards, a claimant may prove discriminatory purpose circumstantially. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977). A circumstantial showing of intent may be based on evidence of discriminatory effects. “Evidence of the discriminatory impact of decisions is one sort of circumstantial evidence supporting an inference of ... intent.” Diaz v. San Jose Unified School District, 733 F.2d 660, 662 (9th Cir.1984) (en banc), cert. denied 471 U.S. 1065, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985); see also Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69 (1986) (“Circumstantial evidence of invidious intent may include proof of disproportionate impact.”). Moreover, we have previously stated that statistical disparities alone may suffice to provide the evidence of discriminatory effect and intent that will establish a prima facie case of selective prosecution. See Redondo-Lemos, 955 F.2d at 1301-02. Because the standard for a discovery showing is lower than that for a prima facie case, Bourgeois, 964 F.2d' at 939, we hold that inadequately explained evidence of a significant statistical disparity in the race of those, pros ecuted suffices to show the colorable basis of discriminatory intent and effect that warrants discovery on a selective prosecution claim. Finally, Bourgeois did not sufficiently emphasize that judges considering discovery requests on selective prosecution charges should bear in mind the evidentiary obstacles defendants face. The notorious difficulty of proving a race discrimination claim is particularly acute in the context of selective prosecution claims. Cf. Wayte, 470 U.S. at 624, 105 S.Ct. at 1539 (Marshall, J., dissenting). The" }, { "docid": "118455", "title": "", "text": "discovery or dismissal of the indictment on selective prosecution grounds. In a decision which Greenwood appeals, the district court denied the motion. The case then went to trial. At trial, evidence of prior bad acts, specifically Greenwood’s false statements on bank loan documents and his attempt to induce a colleague to verify a false statement with respect to an FBI-related meal reimbursement, were introduced over Greenwood’s objection. Greenwood’s cross examination of a key prosecution witness was limited on relevance grounds. Greenwood also appeals these rulings. Finally, Greenwood contends that the rent misstatements were not material, so this count should not have been submitted to the jury. II. In order to prevail on a selective prosecution claim, a defendant must show that enforcement against him “had a discriminatory effect and ... was motivated by a discriminatory purpose.” Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985). The defendant must establish both (1) that he has been “singled out” while others similarly situated have not been prosecuted; and (2) that the decision to prosecute him was “invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to exercise his constitutional rights.” United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). A “nonfrivolous showing” of both elements of the claim is sufficient to support a hearing and related discovery on selective prosecution. Wayte, 105 S.Ct. at 1535, 1539-40 (Marshall, J., dissenting). The defendant’s allegations must raise at least a legitimate issue of improper governmental conduct. See United States v. Duncan, 598 F.2d 839, 869 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). In determining whether a legitimate issue has been raised, the district court may consider the government’s explanation for its conduct. See United States v. Saade, 652 F.2d 1126, 1136 (1st Cir.1981). Appellate reversal of the district court’s finding that a claim is not legitimate and its denial of a hearing and discovery is appropriate only for abuses of discretion. Id. Greenwood’s allegations of racially based selective prosecution are insufficient to support" }, { "docid": "12083458", "title": "", "text": "of limitations, evidentiary errors involving discovery and hearsay, and the lack of a nexus with interstate commerce. In a prior unpublished order in this case, we held that Heidecke was entitled to an evidentiary hearing on the issue of whether he knowingly and voluntarily waived the statute of limitations. Therefore, while retaining jurisdiction, we remanded this case to the district court for development of the record with respect to the statute of limitations issue. On remand, the trial court held an evidentiary hearing and found that Heidecke had knowingly and voluntarily waived the statute of limitations. 683 F.Supp. 1215. We now address the remaining issues. II. DISCUSSION A. Vindictive Prosecution Heidecke first contends that he was entitled to discovery, production of documents, and a hearing on his vindictive prosecution claim. Without affording him discovery, the district court denied Heidecke’s pretrial motion to dismiss for vindictive prosecution. To support his vindictive prosecution claim, Heidecke argued that more serious federal charges were brought against him for exercising his statutory and constitutional rights in seeking a dismissal of the earlier state court indictment. Moreover, Heidecke pointed to the transfer of his former state prosecutors to prosecutorial positions in the federal government. Hei-decke postulated that the state prosecutors used their new federal offices to avenge their earlier loss in state court, and he sought access to any evidence that would have helped prove this hypothesis. Thus, Heidecke has not suggested the existence of evidence that would directly prove actual animus, rather he suggests that we presume prosecutorial malice from these facts. The threshold showing that the defendant must make to compel discovery on the issue of vindictive prosecution is a question of first impression. In the related area of selective prosecution, this court and other courts have firmly settled upon a rule that requires the defendant to show a colorable basis for the claim. See Wayte v. United States, 470 U.S. 598, 623-24, 105 S.Ct. 1524, 1538-39, 84 L.Ed.2d 547 (1985) (Marshall, J., dissenting); United States v. Kerley, 787 F.2d 1147, 1150 (7th Cir.1986); United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985);" }, { "docid": "12083460", "title": "", "text": "United States v. Kahl, 583 F.2d 1351, 1355 (5th Cir.1978); United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir.1974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir.1973). Forcing the defendant to come forward with some evidence to support a charge of selective prosecution protects the interests in open and frank discussions within prosecutorial offices, see Berrigan, 482 F.2d at 181; protects the government from harassment or delay by criminal defendants, see Wayte, 470 U.S. at 624, 105 S.Ct. at 1539 (Marshall, J., dissenting); and frees the judicial system of criminal trials with irrelevant massive discovery, see Murdock, 548 F.2d at 600. At the same time, the relatively low burden recognizes that “most of the relevant proof in selective prosecution cases will normally be in the Government’s hands.” Wayte, 470 U.S. at 624, 105 S.Ct. at 1539 (Marshall, J., dissenting). Some courts have suggested that defendants have to show more than a merely colorable claim before compelling discovery on a selective prosecution charge. See United States v. Hintzman, 806 F.2d 840, 846 (8th Cir.1986) (defendant must establish a prima facie case); United States v. Greenwood, 796 F.2d 49, 52 (4th Cir.1986) (defendant’s allegations must raise a legitimate issue of improper government conduct). These cases, however, appear to arise more from misapplication of precedent than from reasoned analysis. See, e.g., Hintzman, 806 F.2d at 846 (drawing upon language in United States v. Catlett, 584 F.2d 864 (8th Cir.1978) to require the defendant to establish a prima facie case). Because these heightened standards fail to account for the government’s control over the facts relevant to a claim of selective prosecution, we decline to adopt them. The same considerations that support a “colorable basis” standard for discovery in a claim of selective prosecution also support use of this standard in a claim of vindictive prosecution. Proof of vindictive prosecution, like proof of selective prosecution, is likely to involve a deluge of paper, probing the prosecutors’ motives. Thus, we must guard against" }, { "docid": "10381871", "title": "", "text": "States v. Nixon, 418 U.S. [683,] 709 [94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) ]. It also recognizes that most of the relevant proof in selective prosecution cases will normally be in the Government’s hands. Cf. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 [82 S.Ct. 486, 491, 7 L.Ed.2d 458] (1962). At the same time, the standard adequately protects the Government from attempts by the defense to seek discovery as a means of harassment or of delay. See United States v. Murdock, [548 F.2d 599, 600 (5th Cir.1977) ]. Wayte, 470 U.S. at 624, 105 S.Ct. at 1589 (Marshall, J. dissenting). This burden requires that the defendant show a colorable claim on both elements of the selective prosecution defense. Attorney General of the U.S., 684 F.2d at 947-48. Moreover, the defendant must demonstrate that the materials sought by discovery would be probative of the elements for selective prosecution. Berrios, 501 F.2d at 1211-12. However, the defense can not be used to commence a fishing expedition or to obtain discovery otherwise irrelevant to the action. If this were permitted, “[t]he effect could be to encourage use of the defense of selective prosecution, however baseless, as a means of obtaining discovery to which the defense would not otherwise be entitled.” Id. at 1211. Finally, the decision whether or not to order discovery, or an evidentiary hearing, lies substantially within the trial court’s discretion. Id. at 1212. Defendant contends that he has come forward with sufficient evidence to meet the standard required for discovery. As previously discussed, Defendant points to evidence that from 1987 to 1990, 16.7% of all defendants convicted pursuant to § 848 have been black. (Def.App.25A.) However, of the 36 capital defendants charged under the same statute, 78% have been black (while 11% have been white). (Id. at 19A.) Further, Defendant has submitted evidence that this disparity has only a one in one million chance of being statistically random. (Id. at 26A.) As explained above, Defendant must first show a colorable claim that he was singly selected for prosecution. To do so, he would have to" }, { "docid": "15693173", "title": "", "text": "existence, but claimed that the reports were irrelevant to the issue of selective prosecution and were privileged. The trial court examined the documents in camera and found that they were not relevant to the selective prosecution defense, and, in the alternative, held that they were privileged under Federal Rule of Criminal Procedure 16(a)(2) and under the doctrine of executive privilege, United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973). Upon examination of the in camera material, we affirm the finding of the district court that the documents were irrelevant to the establishment of Kahl’s selective prosecution claim. Rulings on discovery motions are matters committed to the trial court’s discretion, United States v. Ross, 511 F.2d 757, 762, (5th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975), and we will not overturn a trial court’s resolution in the absence of a clear abuse of that discretion, United States v. Stone, 472 F.2d 909, 916 (5th Cir. 1973). Here, the trial court conducted in camera examination of the documents and specifically stated its reasons for finding that the documents were irrelevant. Moreover, the court held a lengthy evidentiary hearing on appellant’s selective prosecution claim, and the Government provided much of the evidence Kahl requested. We find no basis for overturning the trial court’s finding on relevancy. See Ross, 511 F.2d at 765. Had the trial court committed error in finding that the reports were irrelevant, Kahl still would not have been entitled to them. In order for a defendant to discover documents relevant to his selective prosecution defense, he first must establish a color-able claim of selective prosecution. United States v. Johnson, 577 F.2d at 1309 (5th Cir. 1978); United States v. Murdock, 548 F.2d 599, 600 (5th Cir. 1977). Since we have held that Kahl did not present such a claim, he was not entitled to discover the documents in question. Kahl asserts that the information fails to charge a crime because it relies on 26 U.S.C. § 7203, which prescribes penalties for failure to file an income tax return, but does not mention" }, { "docid": "14155357", "title": "", "text": "on the basis of his religious beliefs. A defendant, in order to obtain a hearing on the issue of selective prosecution, must establish, at least prima facie, that he was singled out for prosecution on the basis of an impermissible consideration such as race, religion, or exercise of constitutional rights. See United States v. Hazel, 696 F.2d 473, 474 (6th Cir.1983); United States v. Kerley, 787 F.2d 1147, 1148 (7th Cir.1986). A defendant must present facts which tend to show not only that the government’s enforcement policy had a discriminatory effect, but also that it was motivated by a discriminatory purpose. See Wayte, 470 U.S. at 608, 105 S.Ct. at 1531; Kerley, 787 F.2d at 1149. A defendant may, however, be entitled to discovery on the issue of selective prosecution if he introduces “ ‘some evidence tending to show the existence of the essential elements of the defense.’ ” United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)); see also Kerley, 787 F.2d at 1150. Defendant’s attempt to demonstrate that the passive enforcement policy had a discriminatory impact upon religious opponents of registration is based on the unsup ported allegation that religious objectors constituted a “large percentage” of the defendants indicted. However, defendant has failed to point to any evidence that the government prosecuted religious objectors who did not report themselves or were not reported by others. Defendant has similarly failed to point to any evidence that the government did not prosecute reported nonregistrants who were not known to be religious objectors. As the Court found in Wayte, individuals prosecuted under the passive enforcement policy were selected because they reported themselves or were reported by others and thereafter persisted in their unlawful refusal to register. 470 U.S. at 609, 105 S.Ct. at 1532. Defendant’s attempt to demonstrate that the government purposely discriminated against religious objectors is based almost entirely on the fact that government officials responsible for enforcement of the registration requirement recognized that the enforcement scheme would result in prosecution of religious objectors, and proceeded to prosecute" }, { "docid": "22619404", "title": "", "text": "first and foremost a discovery dispute. If the District Court correctly resolved the discovery issue, Wayte was entitled to additional evidence. And if he was entitled to additional evidence, the Court cannot reject his claim on the merits, on the basis of only the evidence to which Wayte had access at the time of the District Court proceedings. The question of whether the discovery order was appropriate breaks down into three narrower inquiries. The first is whether Wayte made a sufficient showing of selective pros ecution to be entitled to any discovery. The second is whether the documents and testimony ordered released were relevant to Wayte’s selective prosecution claim, that is, whether the scope of discovery was appropriate. The third is whether Wayte’s need for the materials outweighed the Government’s assertion of executive privilege. The Court of Appeals dealt with only the first of these questions, finding that an adequate showing had not been made. Thus, if that decision is incorrect, the proper disposition of this case is a remand to the Court of Appeals for a determination of the second and third questions. Certainly this Court is in no position to perform those inquiries, as the documents at stake, which were submitted to the District Court for in camera review, are not before us. B A two-part inquiry leads to the resolution of the narrow discovery question before this Court: (1) what showing must a defendant make to obtain discovery on a claim of selective prosecution, and (2) under what standard does an appellate court review a district court’s finding that the required showing was made. The Courts of Appeals have adopted a standard under which a defendant establishes his right to discovery if he can show that he has a “colorable basis” for a selective prosecution claim. See, e. g., United States v. Murdock, 548 F. 2d 599, 600 (CA5 1977); United States v. Cammisano, 546 F. 2d 238, 241 (CA8 1976); United States v. Berrios, 501 F. 2d 1207, 1211 (CA2 1974); United States v. Berrigan, 482 F. 2d 171, 181 (CA3 1973). To make this showing," }, { "docid": "14155356", "title": "", "text": "110, 113 (1st Cir.1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970); see also Lee, 455 U.S. at 259, 102 S.Ct. at 1056 (Court noted that while religious beliefs can be accommodated, there is a point where accommodation would infringe upon the operating latitude of the legislature); Rostker, 453 U.S. at 64-65, 101 S.Ct. at 2651 (judicial deference to congressional judgments is particularly appropriate where issues of national defense and military affairs are involved). “[T]he Selective Service Act makes adequate provision for the protection of persons who by reason of religious training and belief are conscientiously opposed to participation in war, ... but they are required to register in order to claim exemption from combat duty or from noncombatant service.\" Gara v. United States, 178 F.2d 38, 40 (6th Cir.1949), aff'd by an equally divided court, 340 U.S. 857, 71 S.Ct. 87, 95 L.Ed. 628 (1950). B. Selective Prosecution Defendant argues that he is entitled to discovery and an evidentiary hearing on his claim that the government selected him for prosecution on the basis of his religious beliefs. A defendant, in order to obtain a hearing on the issue of selective prosecution, must establish, at least prima facie, that he was singled out for prosecution on the basis of an impermissible consideration such as race, religion, or exercise of constitutional rights. See United States v. Hazel, 696 F.2d 473, 474 (6th Cir.1983); United States v. Kerley, 787 F.2d 1147, 1148 (7th Cir.1986). A defendant must present facts which tend to show not only that the government’s enforcement policy had a discriminatory effect, but also that it was motivated by a discriminatory purpose. See Wayte, 470 U.S. at 608, 105 S.Ct. at 1531; Kerley, 787 F.2d at 1149. A defendant may, however, be entitled to discovery on the issue of selective prosecution if he introduces “ ‘some evidence tending to show the existence of the essential elements of the defense.’ ” United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)); see also Kerley, 787 F.2d" }, { "docid": "14016198", "title": "", "text": "by the Government.” Rinaldi, 434 U.S. at 31, 98 S.Ct. at 86. Nothing of the kind is urged by the government in the instant case. Even if defendant’s motion is aimed at a claim of selective prosecution, the district judge did not abuse his discretion in denying the motion. A claim of selective prosecution is judged by ordinary equal protection standards. Wayte v. United States, — U.S. -, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547. In order to make a prima facie case of selective prosecution, the defendant must show both that he “had been singled out for prosecution while others had not been prosecuted and that the Government’s discriminatory selection was based upon an impermissible ground.” United States v. Heilman, 614 F.2d 1133, 1138 (7th Cir.1980), certiorari denied, 447 U.S. 922, 100 S.Ct. 3014, 65 L.Ed.2d 1114; see also Wayte, 105 S.Ct. at 1531. In the context of the instant case — a motion to compel discovery — the defendant need not make a complete prima facie case; rather, he need only show a “colorable basis” for the claim. Wayte, 105 S.Ct. at 1539 (Marshall, J., dissenting, citing the following courts of appeals cases: United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir.1973)). In order for the defendant to show a “colorable basis” entitling him to discover the requested government documents, he must introduce “some evidence tending to show the existence of the essential elements of the defense.” Berrios, 501 F.2d at 1211. In the instant case, there is no evidence whatsoever that the defendant was singled out for prosecution because of his race. This conclusion is buttressed by the fact that the government was able to and indeed did introduce the defendant’s confession at the federal trial, while the state did not introduce this confession at the state trial in which the defendant was tried jointly with the other assailants (n. 1 supra). V Defendant’s final contention" }, { "docid": "18760232", "title": "", "text": "the court determined relevant to the selective prosecution issue. But the government did not produce all the documents, and Kerley moved for dismissal. The court granted Kerley’s request and dismissed the indictment as a sanction for the government’s refusal to obey the discovery order. See Fed.R.Crim.P. 16(d)(2). The government appeals and argues that the district court erred in granting Kerley an evidentiary hearing and discovery on his selective prosecution claim. It asserts that Wayte v. United States, — U.S. -, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), is dispositive of Kerley’s claim. We note jurisdiction under 18 U.S.C. § 3731. In order to obtain an evidentiary hearing on the issue of selective prosecution, a defendant initially must make “a prima facie case based on facts ‘sufficient to raise a reasonable doubt about the proseeutor’s purpose.’ ” United States v. Jarrett, 705 F.2d 198, 204 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984), quoting United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973) (en banc). This threshold showing requires that the defendant, at a minimum, prove that he had been singled out for prosecution while others have not though they similarly are in violation of the law and that the prosecutor’s discriminatory selection was based on an impermissible consideration, such as race, religion, or exercise of constitutional rights. United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985); United States v. Jarrett, 705 F.2d at 204-05. We conclude that Kerley fails to meet this initial burden. Kerley’s attack on the government’s prosecution of him relies on virtually the same facts as before the Supreme Court in Wayte v. United States, supra. In support of his claim, Kerley submitted an affidavit in which he, as the defendant in Wayte, posited facts to show that the government had chosen to prosecute him and others through a selection scheme which the government knew would result in the prosecution of vocal non-registrants only. In his affidavit, Kerley asserts that, according to government figures, more than 500,000 persons have violated the Military Selective Service Act by their failure to" }, { "docid": "15672482", "title": "", "text": "of the United States v. Irish People, Inc., 684 F.2d 928, 933 (D.C.Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983). The Fourth Circuit requires a nonfrivolous showing of both elements to merit discovery. At least a legitimate issue of improper governmental conduct must be raised, and in determining whether one has been, the district court may consider the government's explanation for its conduct. United States v. Greenwood, 796 F.2d 49, 52 (4th Cir.1986) (relying on Wayte dissent). The Eleventh Circuit's standard is \"colorable entitlement” which will be met by evidence that is “past the frivolous state and raise[s] a reasonable doubt as to the prosecutor’s purpose.” United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir.1987), vacated on other grounds, 836 F.2d 1312 (1988) (quoting United States v. Hazel, 696 F.2d 473, 475 (6th Cir.1983)). The Second and Eighth Circuits require that a defendant make a prima facie showing before discovery can be ordered. St. German of Alaska Eastern Orthodox Catholic Church v. United States, 840 F.2d 1087, 1095 (2d Cir.1988); United States v. Parham, 16 F.3d 844, 846 (8th Cir. 1994) (stating that the defendant's burden is a \"heavy one”). . See n. 16, infra at 1533. . See n. 5, supra at 1525-26. . The majority opinion also appears to make the showing required — whatever its threshold — contingent on whether the facts that would establish a colorable basis are \"easily obtainable” by' defendants. Op. at 1514. It does so by relying on the dissent in Wayte, 470 U.S. at 624, 105 S.Ct. at 1539. However, all that Justice Marshall said on this point was that a standard which requires a defendant to present \"some evidence tending to show the existence of the essential elements of the defense” \"recognizes that most of the relevant proof in selective prosecution cases will normally be in the .Government's hands.” Id. In no way did he suggest a moving target de-. pending on “what evidence is readily available,” as the majority opinion holds. Op. at 1514. In any event, we have previously held that the fact" }, { "docid": "18760239", "title": "", "text": "cert. denied, 447 U.S. 922, 100 S.Ct. 3014, 65 L.Ed.2d 1114 (1980); United States v. Stout, 601 F.2d 325, 328 (7th Cir.1979) (“Aggressively displaying one’s antipathy to the ... system or daring the government to enforce it [the law] does not create immunity from, or a defense to, prosecution.”). The “presumption” thus remains that Kerley’s “prosecution for violation of a criminal law [was] undertaken in good faith and in nondiscriminatory fashion for the purpose of fulfilling a duty to bring violators to justice.” United States v. Falk, 479 F.2d at 620. Even so, Kerley disputes the necessity to establish a prima facie case at the discovery stage and asks this court to limit Wayte’s impact. Kerley argues that “[although government officials’ awareness of the disproportionate impact of the ‘passive’ system on vocal nonregistrants and the availability of alternative systems is not enough to prove an equal protection violation, ... it is enough to raise a ‘reasonable doubt’ about the purposes served by the enforcement system.” Appellee’s Brief at 41. He claims that further discovery will produce the facts necessary to demonstrate the requisite discriminatory intent of the government’s passive enforcement policy and “will not ‘merely re-establish the particular facts of the “passive” system.’ ” Id. at 39. We disagree. It is true that a motion to compel discovery in a selective prosecution case does not stand on quite the same footing as a motion to dismiss the indictment. The defendant need not make a “complete prima facie case” as he must when the motion is aimed at securing an evidentiary hearing on the merits of his claim for selective prosecution; rather, he need only show a “colorable basis” for the claim. United States v. Mitchell, 778 F.2d at 1277, citing Wayte v. United States, 105 S.Ct. at 1539 (Marshall, J., dissenting). Still, “to discover the requested government documents, [the defendant] must introduce ‘some evidence tending to show the existence of the essential elements of the defense.’ ” Id. But as noted earlier, Kerley presents no evidence that he was singled out for prosecution “because” he spoke out in protest. Even" }, { "docid": "10381868", "title": "", "text": "456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). Defendant argues that an impermissible factor — race—has tainted the government’s decision to seek the death penalty against him. To make out a prima facie case of selective prosecution, Defendant bears the burden of proving two elements: (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution,^ and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). See also Attorney General, 684 F.2d at 946-47; United States v. Eklund, 733 F.2d 1287, 1290 (8th Cir.1984), cert. denied, 471 U.S. 1003, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985) (citing United States v. Catlett, 584 F.2d 864, 866 (8th Cir.1978)); United States v. Diggs, 613 F.2d 988, 1003 (D.C.Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980). In other words, the defendant must show both a discriminatory effect and discriminatory purpose. Wayte, 470 U.S. at 608, 105 S.Ct. at 1531. This is a heavy burden. Eklund, 733 F.2d at 1290. The standard for obtaining an evidentiary hearing on the matter is somewhat lower: A hearing is necessitated only when the motion alleges sufficient facts to take the question past the frivolous state, United States v. Erne, 576 F.2d 212 (9th Cir.1978), United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974), and raises a reasonable doubt as to the prosecutor’s purpose. United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975); United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973) (en banc). Eklund, 733 F.2d at 1290-1291. The standard for discovery is even lower. The defendant must merely make out “a colorable entitlement to the defense of discriminatory prosecutions,” Berrigan, 482 F.2d at 181 (citations omitted); United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States" }, { "docid": "10381866", "title": "", "text": "that the decision to seek the death penalty against him is tainted by racially impermissible factors. As discussed above, he seeks dismissal of the indictment on this ground but, in the alternative, requests discovery or an evidentiary hearing to support his racial discrimination argument. There is a presumption that prosecutions are commenced in good faith and without a discriminatory motive. Attorney General v. Irish People, Inc., 684 F.2d 928, 947 (D.C.Cir.1982), cert. denied sub nom., Irish People, Inc. v. Smith, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983) (quoting United States v. Falk, 479 F.2d 616, 620 (7th Cir.1973)). Moreover, prosecutors retain substantial discretion to determine when and whom to prosecute. Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985); United States v. Berrigan, 482 F.2d 171, 180 (3d Cir.1973). The decision to prosecute rests on a wide number of factors: Id. at 180-81 (quoting Pugach v. Klein, 193 F.Supp. 630, 635 (S.D.N.Y.1961).) Courts, therefore, have been reluctant to question the motives of prosecutors. “Examining the basis of prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaldng to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.” Wayte, 470 U.S. at 607, 105 S.Ct. at 1530. [Some of the] considerations are the likelihood of conviction, turning on the choice of a strong case to test uncertain law, the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing and the relative gravity of the offense.... Still other factors are the relative importance of the offense compared with the competing demands of other cases on the time and resources of investigation, prosecution and trial.... All of these considerations point to the wisdom of vesting broad discretion in the United States Attorney. Nonetheless, the prosecutor’s discretion is not unlimited. Id. at 608,105 S.Ct. at 1531. For example, the choice of whom to prosecute may not be based on impermissible factors, such as race or religion. Oyler v. Boles, 368 U.S. 448," }, { "docid": "22619405", "title": "", "text": "for a determination of the second and third questions. Certainly this Court is in no position to perform those inquiries, as the documents at stake, which were submitted to the District Court for in camera review, are not before us. B A two-part inquiry leads to the resolution of the narrow discovery question before this Court: (1) what showing must a defendant make to obtain discovery on a claim of selective prosecution, and (2) under what standard does an appellate court review a district court’s finding that the required showing was made. The Courts of Appeals have adopted a standard under which a defendant establishes his right to discovery if he can show that he has a “colorable basis” for a selective prosecution claim. See, e. g., United States v. Murdock, 548 F. 2d 599, 600 (CA5 1977); United States v. Cammisano, 546 F. 2d 238, 241 (CA8 1976); United States v. Berrios, 501 F. 2d 1207, 1211 (CA2 1974); United States v. Berrigan, 482 F. 2d 171, 181 (CA3 1973). To make this showing, a defendant must allege sufficient facts in support of his selective prosecution claim “to take the question past the frivolous state.” United States v. Hazel, 696 F. 2d 473, 475 (CA6 1983); United States v. Erne, 576 F. 2d, at 216. In general, a defendant must present “some evidence tending to show the existence of the essential elements of the defense.” United States v. Berrios, supra, at 1211. This standard, which the District Court applied in this case, is consistent with our exhortation that “[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” United States v. Nixon, 418 U. S., at 709. It also recognizes that most of the relevant proof in selective prosecution cases will normally be in the Government’s hands. Cf. Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464, 473 (1962). At the same time, the standard adequately protects the Government" } ]

[ { "docid": "7033328", "title": "", "text": "eliminated by context”). The context in which the term “stolen” appears precludes the interpretation adopted by the district court. In its entirety, § 2K2.1(b)(4) reads: “If any firearm was stolen, or had an altered or obliterated serial number, increase by 2 levels.” (Emphasis added.) As the underlined language shows, the Guidelines provision is concerned not with the way in which firearms and ammunition are acquired by a particular defendant, but rather with their condition when acquired, by whatever means. The foregoing reading of § 2K2.1(b)(4) is confirmed by the accompanying Guidelines Commentary. Specifically, Application Note 12 states that the two-level enhancement provided in subsection (b)(4) should not be applied where the only underlying conviction is for an “offense[ ] involving stolen firearms or ammunition” (18 U.S.C. § 922(i)-(k), 26 U.S.C. § 5861(g)-(h)), because in such cases “the base offense level itself takes such conduct into account.” (Emphasis added.) The relevant context and the Guideline Commentary thus leave no doubt that the Guideline term “stolen” refers to the preexisting condition of the relevant firearms and ammunition involved in a crime, not the manner in which they are acquired in committing the offense. In short, in light of the wording and purpose of § 2K1.1(b)(4), the district court erred in applying a two-level increase in Rowlett’s offense level under that Guideline provision. B U.S.S.G. § 3C1.1 provides for a two-level upward adjustment of the offense level “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense....” Rowlett argues that his telephone call to Elke Mikaelian, in the wake of Holly’s death, instructing her to remove Holly’s belongings from her house did not constitute actual or attempted obstruction of justice within the meaning of § 3C1.1. Rowlett’s first argument on this enhancement is that his conduct could not serve as the basis for an obstruction of justice increase in offense level because, he says, it did not relate to the investigation into his underlying offense of conviction (making a false statement in the acquisition of a" } ]

[ { "docid": "21533040", "title": "", "text": "Cir. 2013) (holding harmless any error in the guidelines calculation where the dis- triet court explicitly said it would have imposed the same sentence “regardless of the guidelines”); United States v. Davis, 583 F.3d 1081, 1094-95 (8th Cir. 2009) (holding harmless any error in the guidelines calculation where the district court explicitly said it would have imposed same sentence “regardless of whether [defendant] was a career offender”). II. Thigpen asserts the district court erred in imposing a four-level increase under U.S.S.G. § 2K2.1(b)(4)(B) based on the pistol’s “altered or obliterated serial number.” This court reviews factual findings for clear error and application of the sentencing guidelines de novo. United States v. Jauron, 832 F.3d 859, 863 (8th Cir. 2016). As a police officer testified at sentencing, Glock pistols have four parts: (1) a barrel; (2) a slide; (3) a frame; and (4) a spring. Typically, they have one serial number, located in three places — the barrel, the slide, and the frame. Because the frame is the only part requiring a federal firearms license, it is considered the permanent part, and, the number on it is the permanent number. The barrel and slide are interchangeable and could have different serial numbers than the frame. Here, the serial numbers on the barrel and slide were unaltered and identifiable. However, two of the six numbers on the frame were scratched off. As the officer testified, if the barrel and slide — the interchangeable parts — had been replaced with serial numbers different from the frame, the pistol would not. easily be identifiable from the partially obliterated serial number on its frame. Thigpen argues the enhancement was inappropriate because only one of the pistol’s three serial numbers was altered, and officers identified it from the other two. Section 2K2.1(b)(4)(B) requires a four-level enhancement if a defendant possesses a firearm that “had an altered or obliterated serial number.” Whether this section applies when only one number is altered or obliterated, is an issue of first impression for this court. The First and Eleventh Circuits recently held that section 2K2.1(b)(4)(B) requires only that one serial" }, { "docid": "5647956", "title": "", "text": "for the six firearms for which he was convicted. II. The Obliterated Serial Number Enhancement. Ahmad argues that the district court erroneously double counted when applying the § 2K2.1(b)(4) enhancement for possession of a firearm with an obliterated serial number because the underlying offense included possession of a firearm with an obliterated serial number under 18 U.S.C. § 922(k). We disagree. Application Note 12 of the Sentencing Guidelines § 2K2.1 specifies that: [I]f the only offense to which § 2K2.-1 applies is 18 U.S.C. § 922(k) ... (offenses involving an altered or obliterated serial number) and the base offense level is determined under subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless the offense involved a stolen firearm or stolen ammunition. This is because the base offense level takes into account that the firearm had an altered or obliterated serial number. The base offense level in this case was determined not under subsection (a)(7), but under subsection (a)(5) because one of the firearms was a sawed-off shotgun as described in 26 U.S.C. § 5845(a). See Guidelines § 2K2.1(a)(5). Thus, the base offense level applied in this case does not include the obliterated serial number on the semiautomatic pistol, Application Note 12 does not apply, and the adjustment was proper. See United States v. Ortiz, 64 F.3d 18, 20 (1st Cir.1995) (enhancement for obliterated serial number proper unless the only factor that renders possession of the firearm illegal is an obliterated serial number, and there are no other offenses to which § 2K2.1 applies). III. The Enhancement for Transfer of a Firearm. Ahmad claims that there was no legal or factual support in the record for the district court’s conclusion that he had given his nephew, Eldon Brown, a firearm with reason to know it would be used or possessed in connection with another felony, and that the four-level upward adjustment under § 2K2.1(b)(5) was therefore improper. We disagree. The government recommended the adjustment in light of Brown’s testimony at trial, relying on a conversation he had with Ahmad at which Brown expressed concerns about his ability to go" }, { "docid": "10011339", "title": "", "text": "Settle argues that this Court’s decision in United States v. Roxborough, 99 F.3d 212 (6th Cir.1996) is in conflict with, and therefore trumps, the Jardine decision. We disagree. In Roxborough, the defendant pleaded guilty to one count of violating 18 U.S.C. § 922(c) for dealing in firearms. Id. at 213. Prior to the defendant’s arrest on that count, undercover ATF agents had obtained several firearms, two of which whose serial numbers had been obliterated. Id. When the serial number were restored, the agents traced the guns back to the defendant. Id. At sentencing, the government conceded that it could not establish Roxborough’s involvement in removing the serial numbers from the two guns or that any of the firearms seized at the time of his arrest similarly lacked serial numbers. Id. Nevertheless, the district court imposed a two-level enhancement under § 2K2.1(b)(4), which applies if “any firearm was stolen, or had an altered or obliterated serial number.” GUIDELINES § 2K2.1(b)(4). The district court reasoned that “Roxborough took the risk that the serial numbers on unlawfully sold guns would be obliterated.” Roxborough, 99 F.3d at 213. On appeal, this Court held that the obliterated serial numbers were not “relevant conduct” under § 1B1.3 because there was no evidence that the defendant was himself responsible or otherwise connected in' any way with the obliteration. Id. at 214. Nor was there any evidence that the obliteration of the serial numbers on the two guns “ ‘occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.’” Id. (quoting GUIDELINES § 1B1.3(a)(1)). The Court also-found that the “any firearm” language contained in the obliteration enhancement provision itself (§ 2K2.1(b)(4)) did not provide more explicit instructions on what constitutes relevant conduct than § 1B1.3. Id. at 216. The Court held that “ ‘ § 2K2.1(b)(4) ... obviously is not intended to apply to firearms wholly unrelated to the charged offense.’ ” Id. (quoting United States v. Gonzales, 996 F.2d 88, 92 n. 6 (5th Cir.1993)). Because there was no" }, { "docid": "10011341", "title": "", "text": "evidence relating the two firearms with obliterated serial numbers to the offense of conviction, the Court held that the enhancement under § 2K2.1(b)(4) was inappropriate. Id.; see also Gonzales, 996 F.2d at 92 n. 6 (opining that “any” firearms referenced in § 2K2.1(c)(1) “must at least be related to those in the charged offense,” but need not be specified in the count of conviction, in order to be considered part of the relevant conduct). Roxborough and Gonzalez, which Roxbortiugh cites, stand only for the proposition that there must be a relationship between firearms that form part of the relevant conduct and the firearms that are part of the offense of conviction. They do not hold that the firearms have to be the same. Thus, on remand the district court may apply Guidelines § 2K2.1(c)(l) if it finds a clear connection between the firearm that Settle possessed on July 4, 2002 and any different firearm he possessed thereafter in order to shoot Young, intimidate witnesses to the Young shooting, and/or rob individuals in order to obtain money that would assist Settle’s effort to avoid detection for shooting Young. IV. For all the foregoing reasons, we AFFIRM Settle’s conviction but REMAND for resentencing in accordance with Booker. . Settle informed the court that he had no objection to the description of his offense of conviction and other relevant conduct as set forth in the presentence report. These admitted facts demonstrate a clear connection between the firearm that Settle possessed on July 4, 2002 (in an attempt to kill Young) and the other firearms he possessed thereafter (in order to shoot Young and to avoid detection for that shooting). Admitted facts that are necessary to support a sentence that exceeds the maximum sentence authorized solely by the facts established by a guilty plea need not be proved to a jury beyond a reasonable doubt. Booker, 125 S.Ct. at 756 (\"Any fact (other than, a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted" }, { "docid": "22732342", "title": "", "text": "the applicable Guidelines range or neglects to “consider” the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration. Booker, — U.S. at -, 125 S.Ct. at 757 (noting that a sentencing court., is “require[d] ... to consider Guidelines ranges” but may “tailor the sentence in light of other statutory concerns as well, see § 3553(a)”). We decline, however, to define rigidly at this time either, the meaning of reasonableness or the procedures that a district judge must employ in sentencing post-Booker. Instead we believe it -prudent to permit a clarification of these concepts to evolve on a case-by-case basis at both the district court and appellate levels. Any specific clarification of the reasonableness standard is also unnecessary in this case, as we conclude that there is nothing in the record which suggests that the district court’s sentencing determination was unreasonable. The district court in reaching its sentencing determination properly calculated and considered the appropriate Guidelines range. See § 3553(a)(4). The district court did not miscalculate the appropriate Guidelines range by applying an enhancement pursuant U.S.S.G. § 2K2.1(b)(4). Despite Webb’s assertions to the contrary, a § 2K2.1(b)(4) enhancement may be properly considered even absent evidence that the defendant knew the machine gun was stolen. Section 2K2.1(b)(4) instructs the district court to apply a two-level sentence enhancement “[i]f [the] firearm was stolen, or had an altered or obliterated serial number.” Application Note 19 of this Guideline explicitly instructs that “[t]he enhancement under subsection (b)(4) for a stolen firearm or a firearm with an altered or obliterated serial number applies whether or not the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number.” U.S.S.G. § 2K2.1, cmt. n. 19 (2002). Given this clear language, the district court did not miscalculate the appropriate Guidelines range in considering a § 2K2.1(b)(4) enhancement. Additionally, the district court properly considered several other pertinent § 3553(a) factors in reaching its sentencing determination. Understandably, the district judge was troubled by Webb’s lengthy criminal history," }, { "docid": "3589786", "title": "", "text": "so, what type of scienter is specified in the statute. The United States Sentencing Guidelines effective at the time of the offense provide as follows: (b) Specific Offense Characteristics (1) If the offense involved three or more firearms, increase as follows: (A) 3-4 pu (B) 5-7 Q-, Oí U.S.S.G. § 2K2.1(b)(l)(A), (B) (1991). Although the text of this provision does not indicate the requisite scienter for its application, we are not without some guideposts. Application note 9 provides as follows: [f]or purposes of calculating the number of firearms under subsection (b)(1), count only those firearms that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed. U.S.S.G. § 2K2.1 application note 9 (1991). Based on this application note, the defense argues that the government must establish that defendant knew that the objects he possessed were genuine firearms. The government contends that no scienter of any type is required for enhancement under the relevant guideline. Cases interpreting another provision of § 2K2.1(b) have held that no specific scienter is required for applying the enhancement provisions. See United States v. Goodell, 990 F.2d 497, 499 (9th Cir.1993) (upholding strict liability enhancement of sentence of convicted felon for possessing stolen firearm); United States v. Litchfield, 986 F.2d 21, 23 (2d Cir.1993) (per curiam) (Guideline increasing sentence for possession of stolen firearm did not require knowledge that firearm was stolen); United States v. Mobley, 956 F.2d 450, 452 (3d Cir.1992) (implying no scienter requirement in enhancement for possession’ of stolen gun by convicted felon); United States v. Singleton, 946 F.2d 23, 25 (5th Cir.1991) (same), cert. denied, — U.S. -, 112 S.Ct. 1231, 117 L.Ed.2d 465 (1992), see also United States v. Schnell, 982 F.2d 216, 220-21 (7th Cir.1992) (sentence of a convicted felon who knowingly possessed a firearm without knowing serial number was obliterated could be enhanced); see also U.S.S.G. § 2K2.1 application note 19 (1993) (enhancement under § 2K2.1(b)(4) applies “whether or not the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number”). As indicated, these cases deal with enhancement" }, { "docid": "21533043", "title": "", "text": "2K2.1(b)(4)(B) enhancement applies either when any serial number on a gun has been altered or obliterated or when just one serial number has been altered or obliterated. The First and Eleventh Circuits’ reasoning “accords with the intent of Guideline § 2K2.1(b)(4), which is to discourage the use of untraceable weaponry.” Serrano-Mercado, 784 F.3d at 850 (internal quota tions omitted), quoting United States v. Carter, 421 F.3d 909, 914 (9th Cir. 2005). As the district court found: The guideline does not require that all the serial numbers on an assembled firearm be obliterated or altered. One is enough, and that’s a plain reading of the guideline. And, of course, in this case, having the serial number obliterated on the frame is the most important serial number, because that is the definition of a firearm, the frame of it. There is no evidence that the obliterated serial number on the frame is the same serial number as on the barrel and the slide. It just makes sense that if you obliterated a serial number on any firearm component, particularly the frame, that could result in that particular component not being traceable. And obviously, this guideline focuses on tracing the firearms and being able to trace the firearms, and when you materially change that serial number, it makes accurate information as to the original of that firearm less accessible. Based on the plain language of section 2K2.1(b)(4)(B), it applies “when the serial number on the frame of a firearm is obliterated even if other serial numbers on the firearm, like the one left intact on the slide [and the barrel] of this weapon, are unaltered.” Serrano-Mercado, 784 F.3d at 850. The district court did not err in applying the section 2K2.1(b)(4)(B) enhancement. III. Thigpen argues the district court erred in imposing a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm “in connection with another felony offense.” This court “review[s] de novo the district court’s interpretation and application of the Guidelines.” United States v. Jackson, 633 F.3d 703, 705 (8th Cir. 2011). The four-level enhancement under section 2K2.1(b)(6)(B) applies if a" }, { "docid": "23449538", "title": "", "text": "§ 4B1.2(a)(2), and thus that his record included two crimes of violence, making his base offense level 24, the district court did not misinterpret the Guidelines. C. The Enhancement for Obliterated Serial Numbers Brown’s contention that the obliterated-serial-numbers enhancement should not have been applied to him because he did not know the numbers were obliterated does not warrant extended discussion. The Guidelines provided for a two-level enhancement “[i]f any firearm ... had an altered or obliterated serial number.” 2003 Guidelines § 2K2.1(b)(4). The commentary to § 2K2.1 provided that the enhancement applied “whether or not the defendant knew or had reason to believe that the firearm ... had an altered or obliterated serial number.” 2003 Guidelines § 2K2.1 Application Note 19. Thus, in United States v. Williams, 49 F.3d 92 (2d Cir.1995), we upheld the strict-liability nature of this provision, stating that while “18 U.S.C. § 922(k), which criminalizes the possession of a firearm with an obliterated serial number, contains a scienter requirement, ... Congress has not required ... that the § 2K2.1(b)(4) sentencing enhancement contain a scienter requirement.” Id. at 93. We noted that the strict-liability nature of the enhancement “reasonably imposes the burden upon a felon who illegally possesses a firearm to ensure that the serial number is not obliterated,” and such an obligation does not violate due process. Id. To the extent that Brown may also be arguing that the § 2K2.1(b)(4) enhancement could not be applied to him because the fact that serial numbers were obliterated was not proven by the government beyond a reasonable doubt to a jury (see Brown brief on appeal at 17-18), his argument fares no better. “Judicial authority to find facts relevant to sentencing by a preponderance of the evidence survives Booker.” United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir.2005). Here, the PSR stated unequivocally that on at least two of the guns sold by Brown, the serial numbers were obliterated; and Brown made no objection to that statement. His argument to the district court was that he “under oath stated he was not aware of the defaced" }, { "docid": "22161485", "title": "", "text": "facility in causing, aiding, or facilitating the distribution with intent to distribute methamphetamine, a violation of 18 U.S.C. § 834(b)); and Count 4 (laundering of monetary instruments, a violation of 18 U.S.C. §§ 2 and 1956(a)(l)(A)(l)). Group II contained Count 5 (possession of an unregistered firearm, a violation of 26 U.S.C. §§ 5841 and 5861(d)) and Count 6 (possession of a (homemade) silencer not identified by a serial number, a violation of 26 U.S.C. § 5861(i)). Count 2 (use or possession of a firearm during or in relation to a drug trafficking offense, a violation of 18 U.S.C. § 924(c)(1)), was treated separately because Sentencing Guideline § 2K2.4 provides that a mandatory five-year sentence runs consecutive to any other sentence for a violation of 18 U.S.C. § 924(c)(1). Sentencing Guidelines § 2K2.1(b)(4) provides that the base offense level should be increased two levels if a firearm used in the offense “was stolen, or had an altered or obliterated serial number.... ” Sees-ing contends that the district court erred in applying the two-level adjustment to both Groups I and II because his silencer was homemade and thus never had a serial number that could be altered or obliterated. Because Seesing failed to object to the enhancement in the district court, we review for plain error. United States v. Randall, 162 F.3d 557, 561 (9th Cir.1998). While we understand the district court’s desire to respect the underlying purpose of Guidelines § 2K2.1(b)(4), discouraging the use of untraceable weaponry, and agree that this purpose is frustrated by the use of homemade silencers without serial numbers, the plain language of the Guideline is clear. The government does not argue that Seesing’s silencer had any serial number, much less one that was altered or obliterated. Thus, applying the Guideline was plain error. See United States v. Bakhtiari, 913 F.2d 1053, 1063 (2d Cir.1990). While we are concerned about this apparent loophole in the Guidelines, “repair” is the job of the Sentencing Commission, not the court. At resentencing, the two-level enhancement found at Guidelines § 2K2.1(b)(4) should not be applied to Group I or Group II." }, { "docid": "10011340", "title": "", "text": "guns would be obliterated.” Roxborough, 99 F.3d at 213. On appeal, this Court held that the obliterated serial numbers were not “relevant conduct” under § 1B1.3 because there was no evidence that the defendant was himself responsible or otherwise connected in' any way with the obliteration. Id. at 214. Nor was there any evidence that the obliteration of the serial numbers on the two guns “ ‘occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.’” Id. (quoting GUIDELINES § 1B1.3(a)(1)). The Court also-found that the “any firearm” language contained in the obliteration enhancement provision itself (§ 2K2.1(b)(4)) did not provide more explicit instructions on what constitutes relevant conduct than § 1B1.3. Id. at 216. The Court held that “ ‘ § 2K2.1(b)(4) ... obviously is not intended to apply to firearms wholly unrelated to the charged offense.’ ” Id. (quoting United States v. Gonzales, 996 F.2d 88, 92 n. 6 (5th Cir.1993)). Because there was no evidence relating the two firearms with obliterated serial numbers to the offense of conviction, the Court held that the enhancement under § 2K2.1(b)(4) was inappropriate. Id.; see also Gonzales, 996 F.2d at 92 n. 6 (opining that “any” firearms referenced in § 2K2.1(c)(1) “must at least be related to those in the charged offense,” but need not be specified in the count of conviction, in order to be considered part of the relevant conduct). Roxborough and Gonzalez, which Roxbortiugh cites, stand only for the proposition that there must be a relationship between firearms that form part of the relevant conduct and the firearms that are part of the offense of conviction. They do not hold that the firearms have to be the same. Thus, on remand the district court may apply Guidelines § 2K2.1(c)(l) if it finds a clear connection between the firearm that Settle possessed on July 4, 2002 and any different firearm he possessed thereafter in order to shoot Young, intimidate witnesses to the Young shooting, and/or rob individuals in order to obtain" }, { "docid": "3589787", "title": "", "text": "See United States v. Goodell, 990 F.2d 497, 499 (9th Cir.1993) (upholding strict liability enhancement of sentence of convicted felon for possessing stolen firearm); United States v. Litchfield, 986 F.2d 21, 23 (2d Cir.1993) (per curiam) (Guideline increasing sentence for possession of stolen firearm did not require knowledge that firearm was stolen); United States v. Mobley, 956 F.2d 450, 452 (3d Cir.1992) (implying no scienter requirement in enhancement for possession’ of stolen gun by convicted felon); United States v. Singleton, 946 F.2d 23, 25 (5th Cir.1991) (same), cert. denied, — U.S. -, 112 S.Ct. 1231, 117 L.Ed.2d 465 (1992), see also United States v. Schnell, 982 F.2d 216, 220-21 (7th Cir.1992) (sentence of a convicted felon who knowingly possessed a firearm without knowing serial number was obliterated could be enhanced); see also U.S.S.G. § 2K2.1 application note 19 (1993) (enhancement under § 2K2.1(b)(4) applies “whether or not the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number”). As indicated, these cases deal with enhancement for possession of either stolen firearms or firearms with obliterated serial numbers under a provision of § 2K2.1(b) not applicable to the case at bar. They do not address application note 9. The words “unlawfully possessed” contained in application note 9 to § 2K2.Í of the Guidelines refer back to whatever scienter requirement exists in the statute respecting, inter alia, possession. By using the word unlawfully, the same requirement of scienter as exists under the statute is incorporated into the Sentencing Guidelines, and becomes a requirement for enhancement. B. Requirement of Scienter in the National Firearms Act The National Firearms Act (“the Act”) makes it unlawful for any person, inter alia, (a) to engage in business as a manufacturer or importer of, or dealer in, firearms without ... having registered as required by section 5802; or (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record. 26 U.S.C. § 5861(a), (d). The Act is silent on the requisite level of intent for sustaining a" }, { "docid": "23449512", "title": "", "text": "record included two crimes of violence rather than one as stated in the original PSR. The base offense level of a defendant with two such prior convictions was 24. See 2003 Guidelines § 2K2.1(a)(2). Thus, the amended PSR concluded that, with the other adjustments remaining the same, Brown’s total offense level was 25. That offense level, combined with a CHC of IV, resulted in a Guidelines-recommended imprisonment range of 84-105 months. B. The March 2001/. Sentencing Brown made no objections to the statements or calculations in the PSR, either as originally issued or as amended, except with respect to the recommended two-step increase in offense level for possession of firearms with obliterated serial numbers. He did not suggest that the serial numbers were not in fact obliterated; rather, he contended that the enhancement was inappropriate because he did not know they were obliterated, and because the district court had refused to accept his plea of guilty to the § 922(k) charges that he had “knowingly” possessed firearms with obliterated serial numbers. Brown argued that his Guidelines imprisonment range, without that enhancement, should be 70 to 87 months. (See, e.g., Sentencing Transcript March 26, 2004 (“2004 S.Tr.”), at 7.) The government responded that while 18 U.S.C. § 922(k) itself applies only if the defendant had knowledge that a firearm’s serial number was removed, altered, or obliterated, the pertinent Guidelines section stated simply, “[i]f any firearm ... had an altered or obliterated serial number, increase by 2 levels,” 2003 Guidelines § 2K2.1(b)(4). The government pointed out that the commentary to that guideline provided that the enhancement under subsection (b)(4) for a “[f]irearm with altered or obliterated serial number applies whether or not the defendant knew or had reason to believe that the firearm had an altered or obliterated serial number.” (2004 S.Tr. at 6 (referring to 2003 Guidelines § 2K2.1 Application Note 19).) Thus, the guideline had no scienter requirement. Judge Johnson addressed both sides’ positions, stating as follows: Problem I have with the government’s position is the fact that the defendant had pled to eight counts for aggregating [sic] circumstances, the" }, { "docid": "23449537", "title": "", "text": "a particular type of conduct has the potential to present a serious risk of physical injury to another person focuses on the nature of the conduct. The inherent nature of the conduct is not dependent on the location of a provision prescribing punishment for that conduct. And where the language of two such provisions is identical, we cannot conclude that those provisions have disparate applicability to a type of conduct that inherently involves the risk specified in both provisions. Having reasoned in Andrello that attempted third-degree burglary of “a building” falls within the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) because third-degree “burglary itself is a crime that inherently involves a risk of personal injury,” 9 F.3d at 249, we can only conclude that third-degree burglary inherently poses that same risk within the meaning of the identically worded residual clause of Guidelines § 4B1.2(a)(2). Accordingly, we conclude that in ruling that Brown’s 1993 third-degree burglary in violation of New York law was a crime of violence within the meaning of the last clause of Guidelines § 4B1.2(a)(2), and thus that his record included two crimes of violence, making his base offense level 24, the district court did not misinterpret the Guidelines. C. The Enhancement for Obliterated Serial Numbers Brown’s contention that the obliterated-serial-numbers enhancement should not have been applied to him because he did not know the numbers were obliterated does not warrant extended discussion. The Guidelines provided for a two-level enhancement “[i]f any firearm ... had an altered or obliterated serial number.” 2003 Guidelines § 2K2.1(b)(4). The commentary to § 2K2.1 provided that the enhancement applied “whether or not the defendant knew or had reason to believe that the firearm ... had an altered or obliterated serial number.” 2003 Guidelines § 2K2.1 Application Note 19. Thus, in United States v. Williams, 49 F.3d 92 (2d Cir.1995), we upheld the strict-liability nature of this provision, stating that while “18 U.S.C. § 922(k), which criminalizes the possession of a firearm with an obliterated serial number, contains a scienter requirement, ... Congress has not required ... that the § 2K2.1(b)(4) sentencing enhancement" }, { "docid": "10011338", "title": "", "text": "firearm or ammunition upon which defendant’s felon-in-possession conviction is based.” Jardine, 364 F.3d at 1208 (emphasis in original). The court in Jardine stated that its holding was supported by two further considerations. First, “the Guidelines require courts to consider all relevant conduct when determining the sentencing guideline range,” id. (citing GUIDELINES § 1B1.3; other citations omitted), and the defendant’s use of firearms in past drug transactions and his admitted trading of ammunition for methamphetamine were therefore “clearly relevant” to his sentencing for felon-in-possession charges. Id. Second, the defendant’s reading of the word “any” would lead to an absurd result by “benefit[ting] those criminals who are not apprehended with the exact firearm they used or possessed in connection with the commission of another offense.” Id. “In such a case, the government would be precluded from seeking § 2K2.1(c)(l)’s enhancement, even when it is undisputed that the defendant used or possessed a firearm, unless it could actually prove it was one of the exact weapons for which the defendant was charged under 18 U.S.C. § 922(g).” Id. Settle argues that this Court’s decision in United States v. Roxborough, 99 F.3d 212 (6th Cir.1996) is in conflict with, and therefore trumps, the Jardine decision. We disagree. In Roxborough, the defendant pleaded guilty to one count of violating 18 U.S.C. § 922(c) for dealing in firearms. Id. at 213. Prior to the defendant’s arrest on that count, undercover ATF agents had obtained several firearms, two of which whose serial numbers had been obliterated. Id. When the serial number were restored, the agents traced the guns back to the defendant. Id. At sentencing, the government conceded that it could not establish Roxborough’s involvement in removing the serial numbers from the two guns or that any of the firearms seized at the time of his arrest similarly lacked serial numbers. Id. Nevertheless, the district court imposed a two-level enhancement under § 2K2.1(b)(4), which applies if “any firearm was stolen, or had an altered or obliterated serial number.” GUIDELINES § 2K2.1(b)(4). The district court reasoned that “Roxborough took the risk that the serial numbers on unlawfully sold" }, { "docid": "15244375", "title": "", "text": "We review legal conclusions regarding application of the guidelines de novo. United States v. Latouf, 132 F.3d 320, 331 (6th Cir.1997). By contrast, the district court’s factual findings in relation to application of the guidelines are subject to the deferential “clearly erroneous” standard of review. Id. A finding of fact will be deemed clearly erroneous only when, despite some evidence to support the finding, we are left with the definite and firm conviction that a mistake has been committed, based on a review of the record as a whole. Id. B. Stolen Firearm Enhancement Raleigh’s challenge to the district court’s application of the two-level stolen firearm enhancement to his base offense level is predicated upon his argument that application of U.S.S.G. § 2K2.1(b)(4)to the facts of this case constitutes an impermissible “double counting.” He notes that he not only was convicted for possession of a stolen firearm, in violation of § 922(j), but that the guideline also calls for a two-level increase if the firearm in question was “stolen, or had an altered or obliterated serial number.” (Emphasis added.) Although this argument would appear, at least superficially, to have some merit, it is foreclosed by the plain language of U.S.S.G. § 2K2.1, cmt. n. 12 (emphasis added): If the only offense to which § 2K2.1 applies is 18 U.S.C. § 922(i), (j), or (u), or 18 U.S.C. § 924(Z) or (m) (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless the offense involved a firearm with an altered or obliterated serial number. This is because the base offense level takes into account that the firearm or ammunition was stolen. The district court determined Raleigh’s base offense level under subsection (a)(4), not (a)(7), and because the language of the commentary requires conviction under § 922(j) and a base level determination under subsection (a)(7), the exception contained in Note 12 does not apply to Raleigh’s offense. We have recently spoken to the effect of § 2K2.1 and Note 12 in United States v. Hurst," }, { "docid": "22732343", "title": "", "text": "court did not miscalculate the appropriate Guidelines range by applying an enhancement pursuant U.S.S.G. § 2K2.1(b)(4). Despite Webb’s assertions to the contrary, a § 2K2.1(b)(4) enhancement may be properly considered even absent evidence that the defendant knew the machine gun was stolen. Section 2K2.1(b)(4) instructs the district court to apply a two-level sentence enhancement “[i]f [the] firearm was stolen, or had an altered or obliterated serial number.” Application Note 19 of this Guideline explicitly instructs that “[t]he enhancement under subsection (b)(4) for a stolen firearm or a firearm with an altered or obliterated serial number applies whether or not the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number.” U.S.S.G. § 2K2.1, cmt. n. 19 (2002). Given this clear language, the district court did not miscalculate the appropriate Guidelines range in considering a § 2K2.1(b)(4) enhancement. Additionally, the district court properly considered several other pertinent § 3553(a) factors in reaching its sentencing determination. Understandably, the district judge was troubled by Webb’s lengthy criminal history, which included convictions for, inter alia: felony possession of a firearm, possession of LSD with the intent' to distribute, armed robbery, and malicious wounding. J.A. at 75-88 (Presentence Report (“PSR”) at 9-22). Furthermore, at the time Webb committed the instant offense he was on supervised release from a prior conviction and there was a parole violation warrant outstanding against him for absconding. J.A. at 88 (PSR at 22). Given Webb’s prior convictions and his parole status, it was reasonable for the district court to place substantial weight on Webb’s criminal history in reaching its sentencing determination. See J.A. at 50, 61 (Tr. of Sentencing Hr’g at 5, 16) (indicating that the judge considered but rejected an upward departure and ultimately gave Webb the maximum sentence permitted under the Guidelines range based on Webb’s “extensive” criminal history); 18 U.S.C. § 3553(a)(l)-(2) (“The court, in determining the particular sentence to be imposed, shall consider ... the nature and circumstances of the offense and the history and characteristics of the defendant” along with “the need for the sentence" }, { "docid": "23449539", "title": "", "text": "contain a scienter requirement.” Id. at 93. We noted that the strict-liability nature of the enhancement “reasonably imposes the burden upon a felon who illegally possesses a firearm to ensure that the serial number is not obliterated,” and such an obligation does not violate due process. Id. To the extent that Brown may also be arguing that the § 2K2.1(b)(4) enhancement could not be applied to him because the fact that serial numbers were obliterated was not proven by the government beyond a reasonable doubt to a jury (see Brown brief on appeal at 17-18), his argument fares no better. “Judicial authority to find facts relevant to sentencing by a preponderance of the evidence survives Booker.” United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir.2005). Here, the PSR stated unequivocally that on at least two of the guns sold by Brown, the serial numbers were obliterated; and Brown made no objection to that statement. His argument to the district court was that he “under oath stated he was not aware of the defaced weapon.” (2004 S.Tr. at 3 (emphasis added).) Finally, Brown points out that at his original sentencing hearing, the district court stated that while “the government has the right” to seek the Guidelines obliterated-serial-number enhancement despite not pursuing the criminal charges under 18 U.S.C. § 922(k), “it is not the right thing to do” (2004 S.Tr. at 20). Brown argues that the application of that enhancement to him on remand, after the Guidelines were declared advisory, was thus unreasonable. We reject this argument, given that the purpose of a Crosby remand is to permit the district court to determine whether to impose a different sentence knowing that the Guidelines— which had given the government the right to seek that enhancement — are not mandatory. On the remand in this case, the court acknowledged the advisory nature of the Guidelines, and it obviously concluded that the enhancement was appropriate even under the advisory Guidelines. We see no error or abuse of discretion in that conclusion. D. Other Contentions Brown’s other challenges to his sentence, alleging procedural and" }, { "docid": "23510073", "title": "", "text": "completes the form, violates the law.” This is precisely what Ortiz did. B. Sentence As to his sentence, Ortiz contends that the district court erred in finding that he obliterated the serial numbers on certain guns and in imposing a 2-level increase to his offense level based on this fact finding. Ortiz contends that this fact should have been submitted to and decided by a jury under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Sentencing Guidelines provide for a 2-level enhancement “[i]f any firearm was stolen, or had an altered or obliterated serial number.” U.S.S.G. § 2K2.1(b)(4). The evidence amply supported the district court’s finding that Ortiz obliterated the serial numbers, and the district court properly imposed this 2-level enhancement under U.S.S.G. § 2K2.1(b)(4). Ortiz also makes several Apprendi-based arguments attacking the district court’s sentence, but none has merit. First, in Apprendi, the Supreme Court held that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Ortiz’s concurrent terms of 33 months’ imprisonment on each count of conviction do not exceed the statutory maximum penalty of 10 years for each of his § 922(a)(6) convictions. See 18 U.S.C. § 924(a)(2); United States v. Le, 256 F.3d 1229, 1240 (11th Cir.2001), cert. denied, 534 U.S. 1145, 122 S.Ct. 1103, 151 L.Ed.2d 999 (2002); United States v. Smith, 240 F.3d 927, 930 (11th Cir.2001). Thus, his sentence does not violate Apprendi. Second, this Court has held that Apprendi does not apply to calculations under the Sentencing Guidelines. See United States v. Snyder, 291 F.3d 1291, 1294 n. 3 (11th Cir.2002); United States v. Rodriguez, 279 F.3d 947, 950 n. 2 (11th Cir.2002); Le, 256 F.3d at 1240. Thus, the district court’s fact finding under the Sentencing Guidelines about who obliterated the serial numbers does not violate Ap-prendi. V. CONCLUSION For the forgoing reasons, we affirm Ortiz’s convictions and sentence. AFFIRMED. . Specifically, they found" }, { "docid": "23449511", "title": "", "text": "2K2.1(a)(4)(A), to wit, the attempted burglary of which he was convicted in 1991. See also id. § 2K2.1 Application Note 5 (stating, in pertinent part, that “[f]or purposes of this guideline ... ‘[cjrime of violence’ has the meaning given that term in § 4B1.2(a)”). The PSR also stated that at least two of the firearms sold by Brown had obliterated serial numbers. After a two-step increase for possession of firearms with obliterated serial numbers, see id. § 2K2.1(b)(4), a two-step increase on the ground that Brown’s offenses involved seven firearms, see id. § 2K2.1(b)(l), and a three-step decrease for acceptance of responsibility, see id. § 3El.l(b), Brown’s total offense level was 21. However, the PSR was subsequently amended to increase that level. An addendum stated that a closer examination of New York statutes and this Court’s decision in United States v. Andrello, 9 F.3d 247 (2d Cir.1993) (“Andrello ”), cert. denied, 510 U.S. 1137, 114 S.Ct. 1117, 127 L.Ed.2d 426 (1994), revealed that Brown’s 1993 burglary was a crime of violence, and hence that Brown’s record included two crimes of violence rather than one as stated in the original PSR. The base offense level of a defendant with two such prior convictions was 24. See 2003 Guidelines § 2K2.1(a)(2). Thus, the amended PSR concluded that, with the other adjustments remaining the same, Brown’s total offense level was 25. That offense level, combined with a CHC of IV, resulted in a Guidelines-recommended imprisonment range of 84-105 months. B. The March 2001/. Sentencing Brown made no objections to the statements or calculations in the PSR, either as originally issued or as amended, except with respect to the recommended two-step increase in offense level for possession of firearms with obliterated serial numbers. He did not suggest that the serial numbers were not in fact obliterated; rather, he contended that the enhancement was inappropriate because he did not know they were obliterated, and because the district court had refused to accept his plea of guilty to the § 922(k) charges that he had “knowingly” possessed firearms with obliterated serial numbers. Brown argued that his" }, { "docid": "21533042", "title": "", "text": "number be altered or obliterated, even if others are clearly legible. See United States v. Warren, 820 F.3d 406, 408 (11th Cir.), cert. denied, — U.S. -, 137 S.Ct. 221, 196 L.Ed.2d 171 (2016); United States v. Serrano-Mercado, 784 F.3d 838, 850 (1st Cir. 2015), cert. denied, 2017 WL 160457, — U.S. -, 137 S.Ct. 812, 196 L.Ed.2d 599 (2017). The Eleventh Circuit reasoned: The guidelines require only that the firearm in question “had an altered or obliterated serial number.” U.S.S.G. § 2K2.1(b)(4)(B) (emphasis added). As the First Circuit has recently explained, that language “does not require that all of the gun’s serial numbers be so affected.” United States v. Serrano-Mercado, 784 F.3d 838, 850 (1st Cir. 2015). We have said in other contexts that “[i]n common terms, when ‘a’ or ‘an’ is followed by a restrictive clause or modifier, this typically signals that the article is being used as a synonym for either ‘any’ or ‘one.’ ” United States v. Alabama, 778 F.3d 926, 932 (11th Cir. 2015).... Read in that fashion, the § 2K2.1(b)(4)(B) enhancement applies either when any serial number on a gun has been altered or obliterated or when just one serial number has been altered or obliterated. The First and Eleventh Circuits’ reasoning “accords with the intent of Guideline § 2K2.1(b)(4), which is to discourage the use of untraceable weaponry.” Serrano-Mercado, 784 F.3d at 850 (internal quota tions omitted), quoting United States v. Carter, 421 F.3d 909, 914 (9th Cir. 2005). As the district court found: The guideline does not require that all the serial numbers on an assembled firearm be obliterated or altered. One is enough, and that’s a plain reading of the guideline. And, of course, in this case, having the serial number obliterated on the frame is the most important serial number, because that is the definition of a firearm, the frame of it. There is no evidence that the obliterated serial number on the frame is the same serial number as on the barrel and the slide. It just makes sense that if you obliterated a serial number on any firearm" } ]

[ { "docid": "22700638", "title": "", "text": "2d Sess. (1942), at p. 3. It cannot therefore be seriously contended that Congress and the executive departments were not cognizant of the exemption of subrogation claims from R. S. 3477 when the Tort Claims Act was passed. The broad sweep of its language assuming the liability of a private person, the purpose of Congress to relieve itself of consideration of private claims, and the fact that subrogation claims made up a substantial part of that burden are also persuasive that Congress did not intend that such claims should be barred. If, then, R. S. 3477 is inapplicable, the Government must defend suits by subrogees as if it were a private person. Rule 17 (a) of the Federal Rules of Civil Procedure, which were specifically made applicable to Tort Claims litigation, provides that “Every action shall be prosecuted in the name of the real party in interest,” and of course an insurer-subrogee, who has substantive equitable rights, qualifies as such. If the subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name. 3 Moore, Federal Practice (2d ed.) p. 1339. If it has paid only part of the loss, both the insured and insurer (and other insurers, if any, who have also paid portions of the loss) have substantive rights against the tortfeasor which qualify them as real parties in interest. In cases of partial subrogation the question arises whether suit may be brought by the insurer alone, whether suit must be brought in the name of the insured for his own use and for the use of the insurance company, or whether all parties in interest must join in the action. Under the common-law practice rights acquired by subrogation could be enforced in an action at law only in the name of the insured to the insurer’s use, Hall & Long v. Railroad Companies, 13 Wall. 367 (1872); United States v. American Tobacco Co., supra, as was also true of suits on assignments, Glenn v. Marbury, 145 U. S. 499 (1892). Mr. Justice Stone" } ]

[ { "docid": "23294531", "title": "", "text": "and defendant appealed. For convenience, continued reference will be made to the parties as they were denominated in the trial court, plaintiffs and defendant, respectively. Error is assigned upon the action of the court in denying the motion for an order making the insurance companies parties to the suit. It is the rule in the United States courts that where an insurer pays the insured in full for a loss and becomes subrogated to all of the rights of the insured against the wrongdoer, the action against the wrongdoer to recover in tort must be maintained in the name of the insurer. United States v. Ætna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207; American Fidelity & Casualty Co. v. All American Bus Lines, 10 Cir., 179 F.2d 7. And it is the further rule that where the owner has been reimbursed for only part of the loss and asserts a claim against the wrongdoer for the balance in excess of the amount paid, both the insured and the insurer own portions of the substantive right against the wrongdoer and should appear in the litigation in their own names. Either may institute the action; but with certain exceptions not having material bearing here, upon timely motion of the alleged wrongdoer, the other should be joined as a party. United States v. Ætna Casualty & Surety Co., supra. As we understand, the rule in the state courts of Kansas is different. There, where loss by fire to insured property exceeds the amount paid by the insurer under its policy, the owner may maintain the action against the wrongdoer for the full amount of the loss. Clark v. Missouri Pacific Railroad Co., 134 Kan. 769, 8 P.2d 359; Klingberg v. Atchison, Topeka & Santa Fe Railway Co., 137 Kan. 523, 21 P.2d 405. Although it is provided by statute in that state that every action must be prosecuted in the name of the real party in interest, and although both the insured and the insurer are real parties in interest, the action may be brought in the name of the" }, { "docid": "23294534", "title": "", "text": "has not been reimbursed. The difference lies in the fact that in the United States courts the insurer must assert the claim in its own name against the wrongdoer for the loss up to the amount paid under the policy, and the insured must assert the claim in his name for the loss in excess of the amount paid by the insurer, while in the state courts of Kansas the insured may maintain the action for the entire amount, holding as trustee for the insurer the amount recovered up to the amount received under the policy and holding for himself the amount recovered in excess thereof. The right of action against the wrongdoer is substantive. Montgomery Ward & Co. v. Callahan, 10 Cir., 127 F.2d 32. And in a case of this kind it is the same in the United States courts and in the state courts of Kansas. There is no conflict between the two jurisdictions. But the person in whose name the action may be prosecuted for the enforcement of the substantive right is procedural, not substantive. Montgomery Ward & Co. v. Callahan, supra. Whether the insured may maintain this action for the use and benefit of the insurers up to the amount paid under the policies or whether the insurers must assert in their own names the claim for such part of the loss is procedural rather than substantive. Montgomery Ward & Co. v. Callahan, supra. And on removal of the case to the United States Court, the federal rules of civil procedure became applicable and controlling to all questions of procedure thereafter arising. Freeman v. Bee Machine Co., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509; Texas Employers Insurance Association v. Felt, 5 Cir., 150 F.2d 227, 160 A.L.R. 931. Plaintiffs having been reimbursed for only part of their loss, the insurance companies having become subrogated to the rights of plaintiffs against defendant only to the extent of the amount paid under their policies, and plaintiffs asserting a claim for loss in excess of the amount which they have received from the insurance companies, the" }, { "docid": "23483566", "title": "", "text": "instituted with the filing of the motion to amend to substitute parties, by which time the statute of limitations had run. The crux of the defendants’ contention thus is their premise that since the insureds were not the real parties in interest the suit brought by them was a nullity which could not toll the statute of limitations for the purpose of preserving the claim of the subrogees. We think, however, that the suit must be construed as having been brought by the insureds for the use of the insurers who had then become subrogated to the . rights of the nominal plaintiffs. American Fid. & Cas. Co. v. All American Bus Lines, 190 F.2d 234 (10th Cir.), cert. denied, 342 U.S. 851, 72 S.Ct. 79, 96 L.Ed. 642 (1951); Kansas Elec. Power Co. v. Janis, 194 F.2d 942 (10th Cir. 1952). A Plaintiffs in other words were not suing for double recovery but to recover for the insurers what the latter had paid. In the Janis case the full amount of the loss had been paid by the insurers before the injured parties filed suit for the amount of the loss. No motion to substitute the insurers in their own names as plaintiffs was made until after the period of limitations had run. The court referred to Rule 17(a), which provides that “Every action shall be prosecuted in the name of the real party in interest * * and stated that either the owners, who were in a position like that of the original plaintiffs here, or an insurer who had paid part of the loss, should appear in the litigation in their own names, and “either may institute the action,” though upon timely motion the other should be joined. The court continued, “And where, as here, the insurers pay the owners in full for the loss and become subrogated to all of the rights of such owners against the alleged wrongdoer, the action against the alleged wrongdoer to recover in tort must be maintained in the name of the insurers. United States v. Aetna Surety Co., 338 U.S." }, { "docid": "1233282", "title": "", "text": "Valentine, the excess insurer. Although there are few decided cases which have considered this question, the Court of Appeals for the Tenth Circuit has held in a line of cases that a primary insurer does have a duty to an excess insurer. Other than noting that the equities are not equal between the two insurance companies, however, that court has not elaborated on the nature of this duty. See, e. g., American Fidelity & Casualty Co. v. All American Bus Lines, 190 F.2d 234 (10th Cir. 1951), cert. den., 342 U.S. 851, 72 S.Ct. 79, 96 L.Ed. 642; St. Paul-Mercury Idemnity Co. v. Martin, 190 F.2d 455 (10th Cir. 1951); and United States Fidelity and Guaranty Company v. Tri-State Insurance Company, 285 F.2d 579 (10th Cir. 1960). This issue has also been considered by a New York Supreme Court in Home Insurance Company v. Royal Indemnity Company, 68 Misc.2d 737, 327 N.Y.S.2d 745 (1972). The New York court there relied on American Fidelity & Casualty Co. v. All American Bus Lines, supra, to support its finding for the excess insurer. Any cause of action which the excess insurer has against the primary must come by way of subrogation and is conditioned upon its meeting the requirements of equitable subrogation un der California law. These requirements are set forth in Patent Scaffolding Co. v. William Simpson Construction Company, 256 Cal.App.2d 506, 64 Cal.Rptr. 187 (1967): “The elements of an insurer’s cause of action based upon equitable subrogation are these: (1) The insured has suffered a loss for which the party to' be charged is liable, either because the latter is a wrongdoer whose act or omission caused the loss or because he is legally responsible to the insured for the loss caused by the wrongdoer; (2) the insurer, in whole or in part, has compensated the insured for the same loss for which the party to be charged is liable; (3) the insured has an existing, assignable cause of action against the party to be charged, which action the insured could have asserted for his own benefit had he not been" }, { "docid": "23194926", "title": "", "text": "interest principle embodied in Rule 17 is that the action must be brought by a person who possesses the right to enforce the claim and who has a significant interest in the litigation. Whether a plaintiff is entitled to enforce the asserted right is determined according to the substantive law. In a diversity action such as this one, the governing substantive law is the law of the state. While the question of in whose name the action must be prosecuted is procedural, and thus governed by federal law, its resolution depends on the underlying substantive law of the state. In the present case it appears that VEPCO has both a sufficient interest in the litigation and is entitled under the substantive law to recover for the entire loss resulting from the failure of its generating station. VEPCO retained a significant pecuniary interest in the litigation. Thus this is not a case where an insurer-subrogee has paid an entire loss suffered by the insured and is the only real party in interest who must sue in his own name. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 380-381, 70 S.Ct. 207, 94 L.Ed. 171 (1949). In addition to having a sufficient interest in the litigation, VEPCO, as subrogor, is entitled under the substantive law to bring suit for its entire loss. VEPCO, being entitled to enforce the right, may bring this action even though INA will ultimately receive the major portion of any recovery. To allow VEPCO to maintain this action for the entire loss accords with the purposes of Rule 17. Under the common-law practice, a subrogee or assignee could enforce his rights only in the name of his subrogor or assignor. The original purpose of Rule 17 was to liberalize party rules, i. e., to allow an assignee or subrogee to enforce his rights in his own name. The permissive function of Rule 17 has been accomplished, and Rule 17 now serves primarily a negative function. It is to enable a defendant to present defenses he has against the real party in interest, to protect the" }, { "docid": "13586775", "title": "", "text": "and the state of its incorporation are one and the same: Indiana. The hitch, of course, is that the defendant in this case, James Cartwright, is also a resident of Indiana. The first question put to counsel for American States at oral argument was whether jurisdiction over American States’ claim in intervention was proper. Counsel responded that he perceived no problem because Ms. Krueger and James Cartwright were citizens of different states. Moreover, according to counsel, American States sought to intervene in the district court as a party-plaintiff in accordance with the subrogation provisions of its policy with Ms. Krueger. As the subrogee of its insured, American States may succeed to Ms. Krueger’s rights against Cartwright for economic loss damages resulting from the automobile accident and paid by American States to Ms. Krueger. However, neither federal law nor the federal procedural rules permits a subrogee to avoid the prerequisites of diversity jurisdiction. II. The general rule in federal court is that if an insurer has paid the entire claim of its insured, the insurer is the real party in interest under Federal Rule of Civil Procedure 17(a) and must sue in its own name. United States v. Aetna Casualty & Surety Company, 338 U.S. 366, 380-81, 70 S.Ct. 207, 215, 94 L.Ed. 171 (1949). On the other hand, an insurer who pays a part of the loss of its insured is only partially subrogated to the insured’s rights. 6A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1546 (2d ed. 1990). In such a casé, “both insured and the insurer ‘own’ portions of the substantive right and should appear in the litigation in their own names.” Aetna Casualty, 338 U.S. at 381, 70 S.Ct. at 215-16. See also Virginia Electric and Power Company v. Westinghouse Electric Corporation, 485 F.2d 78, 84 (4th Cir.1973) (“Where there is partial subrogation, there are two real parties in interest under Rule 17.”), cert. denied, 415 U.S. 935, 94 S.Ct. 1450, 39 L.Ed.2d 493 (1974). Thus, if an insured brings suit against a tortfeasor, the insurer who is" }, { "docid": "23294533", "title": "", "text": "owner who will hold as trustee for the insurer in respect of such part of the amount recovered as the insurer has been compelled to pay under its policy. Grain Dealers’ Nat. Mutual Fire Insurance Co. v. Missouri, Kansas & Texas Railway Co., 98 Kan. 344, 157 P. 1187; City of New York Insurance Co. v. Tice, 159 Kan. 176, 152 P.2d 836, 157 A.L.R. 1233. Manifestly, where the insurer has reimbursed the insured for part but not all of the loss of insured property by fire and the insured still asserts a claim against the wrongdoer for the loss in excess of the amount received from the insurer, the substantive rights of the parties are the same in the United States courts and in the courts of Kansas. The insurer as subrogee of the owner has the substantive right to recover from the wrongdoer up to the amount it has been obliged to pay under its policy, and the insured has the substantive right to recover for any excess in loss for which he has not been reimbursed. The difference lies in the fact that in the United States courts the insurer must assert the claim in its own name against the wrongdoer for the loss up to the amount paid under the policy, and the insured must assert the claim in his name for the loss in excess of the amount paid by the insurer, while in the state courts of Kansas the insured may maintain the action for the entire amount, holding as trustee for the insurer the amount recovered up to the amount received under the policy and holding for himself the amount recovered in excess thereof. The right of action against the wrongdoer is substantive. Montgomery Ward & Co. v. Callahan, 10 Cir., 127 F.2d 32. And in a case of this kind it is the same in the United States courts and in the state courts of Kansas. There is no conflict between the two jurisdictions. But the person in whose name the action may be prosecuted for the enforcement of the substantive right" }, { "docid": "5090156", "title": "", "text": "the terms of the contract of insurance. The contract of insurance involved in the instant case, however, does not vary the general rule. The proof of loss statement contains the following clause: “In consideration of the payment to be made hereunder I/We hereby subrogate to said company all my/our right, title and interest in and to the property for which claim is being made hereunder, and agree to immediately notify Aero Associates, Inc., (for account of the Company) in case of any recovery of the property for which claim is being made hereunder. I/We also agree to turn over to said Aero Associates, Inc., for account of the company, any such recovery which may be made, or reimburse said Aero Associates, Inc. to the extent of the payment for such property which may be recovered.” It seems evident, therefore, that according to the substantive law of Minnesota the two insurance companies herein have a right of subrogation and are partial subrogees. Since by the state substantive law they have an enforceable right, they are real parties in interest for the purposes of an action in the federal court if it is their wish to pursue it. In Minnesota, however, in a suit by the insured against the alleged wrongdoer to recover the full loss the latter may not compel the joinder of the insurer subrogee as a party plaintiff. In such a suit they are not regarded as necessary parties. However, the decisions in point set forth procedural law, and this Court is not to look to them in deciding the issue before it. The rule on this question of procedure is, however, the same in the federal courts. Even though a partial insurer subrogee is a real party in interest, he is only a proper party, not a necessary party, to a suit brought by the insured to recover the full loss. In support of its motion, movant has cited a number of cases and among them, United States v. Aetna Casualty & Surety Co., 1950, 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, in which it is" }, { "docid": "14595196", "title": "", "text": "by Coast Surplus Lines, Inc.; that “the settlements of $131,712.85 and costs of $4,627.37, mentioned in the Complaint, [were] paid by American Fidelity and Casualty Company, Inc. and Coast Surplus Lines Agency, Inc. under the terms of the policies * * *”; and that “* * * the American Fidelity & Casualty Company made the various settlements until the primary retention of 10/20/10 was paid. It is the understanding of the plaintiff that all excess payments were made by the assured and that Mendes and Mount paid the assured and the assured issued its check.” Accordingly, in view of Rule 17(a), F.R.Civ.P., 28 U.S.C.A., providing that every “action shall be prosecuted in the name of the real party in interest” and in view of the specific application of this rule by the Supreme Court in United States v. Aetna Casualty & Surety Co., 1949, 338 U.S. 366, 380-381, 70 S.Ct. 207, 215, 94 L.Ed. 171, to the case of an insurer-subrogee wherein the court stated if “the subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name” it was manifestly clear that as the pleadings then stood the plaintiff had no right to maintain the cause of action alleged. See also: American Fidelity & Casualty Co., Inc v. All American Bus Lines, Inc., 10 Cir., 1949, 179 F.2d 7, certiorari denied 1951, 342 U.S. 851, 72 S.Ct. 79, 96 L.Ed. 642. The defendant was fully aware of the situation and in his memorandum on this point states: “ * * * At this point, Walrath’s attorney researched the law * * * and well realizing his tactical position and the impossibility of Mat-lack’s recovering in the suit as brought, [he] attended the pre-trial conference before this Court on March 26, 1959. At this conference, Walrath admittedly did not request Matlack to amend his suit, for such an amendment would certainly not be advantageous to Walrath—he being in an impregnable position. The Court, no doubt recognizing the obvious fact that insurance companies had an interest in" }, { "docid": "23294532", "title": "", "text": "the substantive right against the wrongdoer and should appear in the litigation in their own names. Either may institute the action; but with certain exceptions not having material bearing here, upon timely motion of the alleged wrongdoer, the other should be joined as a party. United States v. Ætna Casualty & Surety Co., supra. As we understand, the rule in the state courts of Kansas is different. There, where loss by fire to insured property exceeds the amount paid by the insurer under its policy, the owner may maintain the action against the wrongdoer for the full amount of the loss. Clark v. Missouri Pacific Railroad Co., 134 Kan. 769, 8 P.2d 359; Klingberg v. Atchison, Topeka & Santa Fe Railway Co., 137 Kan. 523, 21 P.2d 405. Although it is provided by statute in that state that every action must be prosecuted in the name of the real party in interest, and although both the insured and the insurer are real parties in interest, the action may be brought in the name of the owner who will hold as trustee for the insurer in respect of such part of the amount recovered as the insurer has been compelled to pay under its policy. Grain Dealers’ Nat. Mutual Fire Insurance Co. v. Missouri, Kansas & Texas Railway Co., 98 Kan. 344, 157 P. 1187; City of New York Insurance Co. v. Tice, 159 Kan. 176, 152 P.2d 836, 157 A.L.R. 1233. Manifestly, where the insurer has reimbursed the insured for part but not all of the loss of insured property by fire and the insured still asserts a claim against the wrongdoer for the loss in excess of the amount received from the insurer, the substantive rights of the parties are the same in the United States courts and in the courts of Kansas. The insurer as subrogee of the owner has the substantive right to recover from the wrongdoer up to the amount it has been obliged to pay under its policy, and the insured has the substantive right to recover for any excess in loss for which he" }, { "docid": "4967157", "title": "", "text": "action must be dismissed because of a failure of complete diversity of citizenship. On the other hand, if these insurers are not required by either Rule to be joined in this action, then plaintiffs’ Rule 21 motion must be granted and the motions to dismiss denied. Discussion Little difficulty is presented by the preliminary question presented under Rule 17, namely, whether the insurers are real parties in interest. Rule 17(a) states: “Every action shall be prosecuted in the name of the real party in interest.” (Emphasis added) Professor Moore has interpreted this Rule to mean that every action shall be prosecuted in the name of the party who, by the substantive law, has the right to be enforced. 3A Moore’s Federal Practice, ff 17.02, p. 53 (2d ed.). An insurer which has paid for a loss in whole or part becomes subrogated to the rights of the insured as holder of the claim and stands in the shoes of such subrogor. General Cigar Co. v. Lancaster Leaf Tobacco Company, 323 F.Supp. 931 (D.Md.1971). In United States v. Aetna Casualty and Surety Company, 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949), the Supreme Court held that an insurer-subrogee is a real party in interest under Rule 17. The Court noted that if the subrogee had paid the entire loss, it would be the only real party in interest and must then sue in its own name, (at 380, 381, 70 S.Ct. 207, 94 L.Ed. 171) The Court further observed that in cases of partial subrogation, both the insured and the insurer “own” portions of the substantive right, are real parties in interest and should appear in the litigation in their own names, (at 381, 70 S.Ct. 207, 94 L.Ed. 171) Here, both Pepeo and its insurers own portions of the substantive right, and all three parties are real parties in interest which should be named as plaintiffs in this litigation, unless considerations arising under Rule 19 require otherwise. The insurers here have paid the loss in part only, and if recovery were effected in full, part would go to" }, { "docid": "5090157", "title": "", "text": "parties in interest for the purposes of an action in the federal court if it is their wish to pursue it. In Minnesota, however, in a suit by the insured against the alleged wrongdoer to recover the full loss the latter may not compel the joinder of the insurer subrogee as a party plaintiff. In such a suit they are not regarded as necessary parties. However, the decisions in point set forth procedural law, and this Court is not to look to them in deciding the issue before it. The rule on this question of procedure is, however, the same in the federal courts. Even though a partial insurer subrogee is a real party in interest, he is only a proper party, not a necessary party, to a suit brought by the insured to recover the full loss. In support of its motion, movant has cited a number of cases and among them, United States v. Aetna Casualty & Surety Co., 1950, 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, in which it is stated that partial insurer subrogees and the insured are necessary parties. An understanding examination of the cases which the Court had before it (four cases arising under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680, were combined) reveals that in three of the cases suit had been brought by the partial insurer subrogees against the United States to recover amounts that they had paid certain persons injured by the alleged negligence of the United States, and in the fourth case suit had been brought by the partial insurer subrogee and the insured person, and in none of the cases had the suit been brought by the insured person alone. Thus, the issue of compelling the joinder as a party plaintiff of a partial insurer subrogee in a suit brought by the insured alone to recover the full loss was not before the Court. This distinction is important because when partial insurer subrogees bring suit and other insurer subrogees and the insured are not joined, there is the possibility of a multiplicity of suits" }, { "docid": "4967158", "title": "", "text": "States v. Aetna Casualty and Surety Company, 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949), the Supreme Court held that an insurer-subrogee is a real party in interest under Rule 17. The Court noted that if the subrogee had paid the entire loss, it would be the only real party in interest and must then sue in its own name, (at 380, 381, 70 S.Ct. 207, 94 L.Ed. 171) The Court further observed that in cases of partial subrogation, both the insured and the insurer “own” portions of the substantive right, are real parties in interest and should appear in the litigation in their own names, (at 381, 70 S.Ct. 207, 94 L.Ed. 171) Here, both Pepeo and its insurers own portions of the substantive right, and all three parties are real parties in interest which should be named as plaintiffs in this litigation, unless considerations arising under Rule 19 require otherwise. The insurers here have paid the loss in part only, and if recovery were effected in full, part would go to Pepeo and part to the insurers. The record here indicates that Royal paid the loss it insured under a “loan receipt” agreement. Although characterizing the payment as a loan, such agreement provided that Royal would pay for and would have “exclusive direction and control” of any suit such as the present one to recover for the loss. Officers of Royal were appointed as agents and attorneys in fact “with irrevocable power” to collect any claim resulting from such loss. A payment conditioned on such control by an insurance company and its attorneys of a subsequent suit hardly amounts to a bona fide loan so as to avoid the requirements of Rules 17 and 19. Under an agreement between an insured and its insurer such as the one here present, this Court concludes that the insurer is subrogated to the rights of the insured to the extent that it has paid portions of the loss in question. City Stores Co. v. Lerner Shops, 133 U.S.App.D.C. 311, 410 F.2d 1010 (1969); Wright & Miller, Federal Practice and" }, { "docid": "11860693", "title": "", "text": "the substance of the amended complaint in respect to the issuance of the policies and the payments under them was repleaded; and in addition it was specifically alleged among other things that the action was brought in the first instance by plaintiffs Janis and Davis for the benefit of the insurers under the policies. Defendant moved to dismiss the action as to the additional plaintiffs named in the second amended complaint on the ground that the second amended complaint failed to state a claim upon which relief could be granted. The court dismissed the action as to plaintiffs Janis and Davis but denied the motion to dismiss as to the plaintiffs insurance companies. Defendant appealed. Rule of Civil Procedure 17(a), 28 U.S.C.A., provides that every action shall be prosecuted in the name of the real party in interest; and bringing that rule into focus, it is settled in the United States Courts that where the owner of property destroyed by fire as the result of the wrong of another has. been reimbursed by the insurer for only part of the loss, both the insured and the insurer own portions of the substantive right against the wrongdoer, and if the action is against the wrongdoer for the entire loss the owner and the insurer should appear in the litigation in their own names. Either may institute the action; but with certain exceptions not having material bearing here, upon timely motion of the alleged wrongdoer, the other should be joined. And where, as here, the insurers pay the owners in full for the loss and become subrogated to all of the rights of such owners against the alleged wrongdoer, the action against the alleged wrongdoer to recover in tort must be maintained in the name of the insurers. United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171; American Fidelity & Casualty Co. v. All American Bus Lines, 10 Cir., 179 F.2d 7; Gas Service Co. v. Hunt, 10 Cir., 183 F.2d 417. It is contended that in respect to the insurance companies the cause of action" }, { "docid": "23483567", "title": "", "text": "been paid by the insurers before the injured parties filed suit for the amount of the loss. No motion to substitute the insurers in their own names as plaintiffs was made until after the period of limitations had run. The court referred to Rule 17(a), which provides that “Every action shall be prosecuted in the name of the real party in interest * * and stated that either the owners, who were in a position like that of the original plaintiffs here, or an insurer who had paid part of the loss, should appear in the litigation in their own names, and “either may institute the action,” though upon timely motion the other should be joined. The court continued, “And where, as here, the insurers pay the owners in full for the loss and become subrogated to all of the rights of such owners against the alleged wrongdoer, the action against the alleged wrongdoer to recover in tort must be maintained in the name of the insurers. United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171; American Fidelity & Casualty Co. v. All American Bus Lines, 10 Cir., 179 F.2d 7; Gas Service Co. v. Hunt, 10 Cir., 183 F.2d 417.” 194 F.2d at 944. Nevertheless the court permitted the substitution of the insurers in their own names as plaintiffs. The court did not consider that the statement in the Aetna case that if the subrogee has paid the entire loss it is the only real party in interest and must sue in its own name as a holding that precluded the continuance in the name of the subrogee of the suit initiated by the insured for the use of the subrogee. We are of like opinion, that is to say that though brought in the name of the insureds, this suit was not a nullity, since, as we hold, it was brought for the use of the real parties in interest. It was thus not so lacking in validity as to furnish no support for a motion to bring it into compliance with" }, { "docid": "23294530", "title": "", "text": "from the air line, mixer, and line leading from the mixer to the burner lint and debris which had collected therein. It was further alleged that the negligence on the part of defendant was the proximate cause of the fire. And it was further alleged that plaintiffs had suffered damages in the sum of $8,512.95, for which judgment was sought. Defendant denied negligence and pleaded contributory negligence. Defendant filed a motion for an order making parties to the action two insurance companies which had paid plaintiffs $4,698.75 under policies of insurance covering the property and had become subrogated to that extent to the rights of plaintiffs against defendant. The motion was denied. The cause was tried to a jury. The jury returned a verdict for plaintiffs in the sum of $7,202.65. And by response to a special interrogatory, the jury found that the defendant was negligent in failing to make a sufficiently thorough and complete check of the operation of the furnace mechanism to insure its safe and efficient operation. Judgment was entered for plaintiffs and defendant appealed. For convenience, continued reference will be made to the parties as they were denominated in the trial court, plaintiffs and defendant, respectively. Error is assigned upon the action of the court in denying the motion for an order making the insurance companies parties to the suit. It is the rule in the United States courts that where an insurer pays the insured in full for a loss and becomes subrogated to all of the rights of the insured against the wrongdoer, the action against the wrongdoer to recover in tort must be maintained in the name of the insurer. United States v. Ætna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207; American Fidelity & Casualty Co. v. All American Bus Lines, 10 Cir., 179 F.2d 7. And it is the further rule that where the owner has been reimbursed for only part of the loss and asserts a claim against the wrongdoer for the balance in excess of the amount paid, both the insured and the insurer own portions of" }, { "docid": "13586776", "title": "", "text": "the real party in interest under Federal Rule of Civil Procedure 17(a) and must sue in its own name. United States v. Aetna Casualty & Surety Company, 338 U.S. 366, 380-81, 70 S.Ct. 207, 215, 94 L.Ed. 171 (1949). On the other hand, an insurer who pays a part of the loss of its insured is only partially subrogated to the insured’s rights. 6A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1546 (2d ed. 1990). In such a casé, “both insured and the insurer ‘own’ portions of the substantive right and should appear in the litigation in their own names.” Aetna Casualty, 338 U.S. at 381, 70 S.Ct. at 215-16. See also Virginia Electric and Power Company v. Westinghouse Electric Corporation, 485 F.2d 78, 84 (4th Cir.1973) (“Where there is partial subrogation, there are two real parties in interest under Rule 17.”), cert. denied, 415 U.S. 935, 94 S.Ct. 1450, 39 L.Ed.2d 493 (1974). Thus, if an insured brings suit against a tortfeasor, the insurer who is partially subrogated may intervene in the action to protect its pro rata share of the potential recovery. 6A Wright, Miller & Kane § 1546. The instant case is one of partial subrogation. Ms. Krueger sued James Cartwright because a portion of her losses — specifically non-economic losses relating to pain and suffering and disfigurement — were not compen-sable under her American States policy, which covered only economic losses. Neither the plaintiff nor the defendant sought to join American States as a party. Rather, American States on its own behalf filed a “Motion to Join as Party Plaintiff’ and supporting brief, contesting the terms of the settlement agreement and claiming the proposed recovery settled claims for economic loss damages. In its brief to the district court, the company argued that it should be joined as a party-plaintiff under Rule 19(a). The text of that Rule provides for mandatory joinder only in circumstances where “joinder will not deprive the court of jurisdiction over the subject matter of the action.” When the joinder of an absent party would" }, { "docid": "11860694", "title": "", "text": "for only part of the loss, both the insured and the insurer own portions of the substantive right against the wrongdoer, and if the action is against the wrongdoer for the entire loss the owner and the insurer should appear in the litigation in their own names. Either may institute the action; but with certain exceptions not having material bearing here, upon timely motion of the alleged wrongdoer, the other should be joined. And where, as here, the insurers pay the owners in full for the loss and become subrogated to all of the rights of such owners against the alleged wrongdoer, the action against the alleged wrongdoer to recover in tort must be maintained in the name of the insurers. United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171; American Fidelity & Casualty Co. v. All American Bus Lines, 10 Cir., 179 F.2d 7; Gas Service Co. v. Hunt, 10 Cir., 183 F.2d 417. It is contended that in respect to the insurance companies the cause of action was barred by limitation. Section 60-306, General Statutes of Kansas 1935, provides that an action for the wrongful injury of personal property of another, or for injury to the rights of another, not arising on contract, and not thereinafter enumerated, shall be brought within two years after the cause of action shall have accrued. Inasmuch as the owners of the property had been reimbursed in full for their loss, they could not maintain in their names for the benefit of the insurance companies the action against the electric power company. But the insurance companies were joined as parties plaintiff. While the action was instituted less than two years after the date of the fire, the insurance companies were joined as parties plaintiff more than two years thereafter. But the joining of the insurance companies as additional parties plaintiff did not change the cause of action in the slightest degree. It did not introduce into the case a new or different cause of action. The cause of action was precisely the same and the same relief" }, { "docid": "23194927", "title": "", "text": "his own name. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 380-381, 70 S.Ct. 207, 94 L.Ed. 171 (1949). In addition to having a sufficient interest in the litigation, VEPCO, as subrogor, is entitled under the substantive law to bring suit for its entire loss. VEPCO, being entitled to enforce the right, may bring this action even though INA will ultimately receive the major portion of any recovery. To allow VEPCO to maintain this action for the entire loss accords with the purposes of Rule 17. Under the common-law practice, a subrogee or assignee could enforce his rights only in the name of his subrogor or assignor. The original purpose of Rule 17 was to liberalize party rules, i. e., to allow an assignee or subrogee to enforce his rights in his own name. The permissive function of Rule 17 has been accomplished, and Rule 17 now serves primarily a negative function. It is to enable a defendant to present defenses he has against the real party in interest, to protect the defendant against a subsequent action by the party actually entitled to relief, and to ensure that the judgment will have proper res judicata effect. In view of its current purpose, to protect defendants against subsequent suits, Rule 17 will not bar a suit by a real party in interest which will have the effect of preventing a multiplicity of suits. Where there is partial subrogation, there are two real parties in interest under Rule 17. Either party may bring suit — the insurer-subrogee to the extent it has reimbursed the subrogor, or the subrogor for either the entire loss or only its unreimbursed loss. If either the subrogor or subrogee brings suit, joinder is often appropriate upon proper motion by the defendant. But joinder is not appropriate, and certainly not required by Rule 17, for the purpose of destroying diversity jurisdiction and requiring dismissal. Even without joinder the partial subrogee is generally precluded from bringing a subsequent action against the defendants where a judgment has been rendered in a suit by the subrogor for the" }, { "docid": "2840862", "title": "", "text": "v. Blight, 10 Cir. 1940, 112 F.2d 696, 700, where the court permitted aggregation of the plaintiff’s claim for personal injuries and his claim for damage to his automobile. In deciding whether the claims of the plaintiff for personal injuries and the intervenor for property damage may be aggregated, it must be determined whether the parties have a “common and undivided right or interest”. In reaching this determination, it is important to distinguish between those cases where the insurer-subrogee has paid the total loss and sues in its own right, and those where it has paid only part of the loss and the insured and insurer join in asserting a claim. This distinction was recognized by the Supreme Court in United States v. Aetna Casualty & Surety Co., 1949, 338 U.S. 366, 380, 70 S.Ct. 207, 215, 94 L.Ed. 171, where the Court said in part: “ * * * Rule 17(a) of the Federal Rules of Civil Procedure, 28 U. S.C.A., which were specifically made applicable to Tort Claims litigation, provides that ‘Every action shall be prosecuted in the name of the real party in interest,’ and of course an insurer-subrogee, who has substantive equitable rights, qualifies as such. If the subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name. 3 Moore, Federal Practice (2d Ed.) p. 1339. If it has paid only part of the loss, both the insured and insurer (and other insurers, if any, who have also paid portions of the loss) have substantive rights against the tortfeasor which qualify them as real parties in interest.” Defendant here relies primarily upon cases where insurers have paid a portion of the loss, and the insured and insurers join in'an action against the alleged tortfeasor. Heavy reliance is placed upon Farren v. Gas Service Co., D.Kan. 1954, 122 F.Supp. 536, 537, in which the owner of damaged property and his two insurers brought suit alleging negligence. The total property damage claim was $13,755.26. The claim of one insurer was for $3,800 and" } ]

[ { "docid": "22229285", "title": "", "text": "motion under Rule 12(b)(1), the district court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Sladek v. Bell System Management Pension Plan, 880 F.2d 972, 975 (7th Cir.1989). This court reviews dismissal for lack of subject matter jurisdiction de novo. Joyce v. Joyce, 975 F.2d 379, 382 (7th Cir.1992) (citing Houck ex rel. United States v. Folding Carton Administration Committee, 881 F.2d 494, 503 (7th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1471, 108 L.Ed.2d 609 (1990)). B Capitol argues that the trial court should have afforded it an evidentiary hearing to resolve the factual issue whether it ever received proper notification that the FDIC had denied its claim. Appellant’s Brief at 10. The FDIC, Capitol contends, in essence requested the district court to treat its motion as one for summary judgment pursuant to Federal Rule of Civil Procedure 56 — that is, to make a determination as a matter of law. Capitol further asserts that the district court converted the motion for dismissal into one for summary judgment by considering and relying upon affidavits and documents submitted by the FDIC to show that it issued a notice of disallowance on December 17,1991. This argument is unavailing because Capitol misconstrues the relationship between Rule 12(b)(1) and summary judgment. Indisputably, a district court can transform a motion for dismissal under Federal Rule 12(b)(6) into one for summary judgment when “matters outside the pleading are presented to and not excluded by the court....” Fed.R.Civ.P. 12(b)(6). See also R.J.R. Services, Inc. v. Aetna Casualty and Surety Co., 895 F.2d 279, 281 (7th Cir.1989). Capitol’s argument notwithstanding, the Federal Rules of Civil Procedure contain no analogous recognition that a 12(b)(1) motion can evolve into dismissal pursuant to Rule 56. Crawford v. United States, 796 F.2d 924, 928 (7th Cir.1986) (“The omission from the Federal Rules of Civil Procedure of a provision for converting a Rule 12(b)(1) motion into a summary judgment motion if evidence is submitted with it was not an oversight.”). Whereas a grant of summary judgment is a decision on the merits," } ]

[ { "docid": "2461564", "title": "", "text": "Objections, ¶ 4. This court disagrees. Although the Magistrate succinctly set forth the standard of review for the court upon considering a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the nature of Krizan’s objection warrants a second review of this standard. On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff has the obligation to establish jurisdiction by competent proof, and the court may properly look to evidence beyond the pleadings in this inquiry. See Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979) (“the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof.”); see e.g. Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (citations omitted) (courts may “properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction.”). When presented with evidence beyond the pleadings, the court may weigh the evidence in order to satisfy itself that jurisdiction exists; as such, disputes over material facts will not preclude the court from deciding jurisdictional issues. Lumpkin v. United States, 791 F.Supp. 747, 749 (N.D.Ill.1992). Contrary to Krizan’s assertion that she had no burden to present evidence on these factual issues, the standard set forth above clearly places the burden on her to demonstrate a jurisdictional basis for her claim. Further, the aforementioned standard permits the district court to weigh evidence presented by the parties to properly determine the existence of jurisdiction. In lieu of the entire administrative record, the Commissioner'submitted the declaration of Joseph W. Ponton (“Ponton”) , summarizing the administrative record, to support his assertion of lack of jurisdiction. The Magistrate was entitled to review and weigh this evidence in determining the propriety of jurisdiction. Thus, the Magistrate’s review of the record presented was entirely proper and, in fact, it was required for him to assess whether subject matter jurisdiction exists. Krizan also objects to the specific conclusions drawn by the Magistrate contending that they were improper without first giving Krizan an opportunity to" }, { "docid": "23263236", "title": "", "text": "the VA hospital’s medical staff had over him. At the same time, the court also rejected Ezekiel's argument that the Government should be equitably es-topped from asserting that Dr. Michel was a federal employee because, in prior cases, the United States avoided liability under the FTCA by characterizing civilian physicians at VA hospitals as independent contractors. The court substituted the United States as the proper party defendant, and dismissed the complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), recognizing that because Ezekiel was a federally employed nurse injured on the job, her exclusive remedy against the United States was under the FECA, 5 U.S.C. § 8116(c). Nonetheless, the court apparently also based its order dismissing the complaint on Ezekiel's lack of compliance with the jurisdictional prerequisite of filing an administrative tort claim against the Veterans Administration and thus, failure to exhaust her administrative remedies under the FTCA. See 28 U.S.C. § 2675(a); Deloria v. Veterans Administration, 927 F.2d 1009, 1011 (7th Cir.1991). II. DISCUSSION A. When ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the district court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff. Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir. 1993). “The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188,191 (7th Cir.1993) (per curiam) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979)); see also Rennie v. Garrett, 896 F.2d 1057, 1057-58 (7th Cir.1990). We review de novo the district court’s dismissal of an action under Rule 12(b)(1). Bailor v. Salvation Army, 51 F.3d 678, 684 (7th Cir.1995). B. The sole issue on appeal is whether Dr. Michel, a licensed physician participating in a psychiatric rotation residency program at the VA hospital and receiving no compensation directly from the VA hospital, was a" }, { "docid": "5442148", "title": "", "text": "the actual complaint itself, without relying on matters outside the pleadings, the motion to dismiss is a “facial challenge” to a complaint, because a district court is not asked to review documents outside the pleadings. See Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987) (materials aliunde pleadings can be considered on Rule 12(b)(1) motion); 2 James Wm. Moore et al., Moore’s Federal Practice, § 12.30[4], at 39 (3rd ed. 2002) (“A facial attack questions the sufficiency of the pleading.”). On a motion to dismiss a case that presents such a “facial challenge,” a court must accept all of the complaint’s well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiffs favor. United Trans. Union v. Gateway Western R. Co., 78 F.3d 1208 (7th Cir.1996) (citing Rueth v. EPA, 13 F.3d 227, 229 (7th Cir.1993)). However, in some instances, a court is required to look beyond the pleadings and to inquire into facts that are pertinent to the determination of whether it has subject matter jurisdiction. Land, 330 U.S. at 735 n. 4, 67 S.Ct. 1009. Such a “factual challenge” attacks the existence of subject matter jurisdiction by looking beyond the pleadings and places the burden on the plaintiff to prove that facts exist that establish a court’s jurisdiction. See Federal Election Com. v. National Rifle Assoc., 553 F.Supp. 1331, 1343 (D.D.C.1983) (“A ‘factual attack,’ however, challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered. Moreover, a ‘factual attack’ under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist.”) (internal citations omitted). In this instance Defendant brings a factual challenge to the existence of subject matter jurisdiction and thus, Plaintiff bears the burden of presenting proof that jurisdiction properly lies with this Court. B. The Federal Tort Claims Act Absent an express waiver of sovereign immunity, a plaintiff may not" }, { "docid": "9366815", "title": "", "text": "of interest with Elder Care Lines. Transit Express asserted that the trial court could properly exercise federal question jurisdiction over the complaint pursuant to 28 U.S.C. § 1331 because the action arose under the federal transit laws 49 U.S.C. § 5301 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. The defendant disputed that federal jurisdiction was proper and thus moved to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim. The district judge granted defendant’s motion and dismissed the lawsuit with prejudice on March 16, 2000, due to the fact that federal subject matter jurisdiction was lacking because there was no federal question involved in the case. II. DISCUSSION A. Standard of Review We review the district court’s decision to dismiss an action under Rule 12(b)(1) of the Federal Rules of Civil Procedure de novo. Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir.1999). In considering a motion to dismiss for lack of subject matter jurisdiction, the district court must accept the complaint’s well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiffs favor. Rueth v. ERA, 13 F.3d 227, 229 (7th Cir.1993). B. Subject Matter Jurisdiction Fundamental to our law is the understanding that “[fjederal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); see also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Furthermore, 28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Also, plaintiff-appellant Transit Express bears the burden of proving that jurisdiction is proper in this case. Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987). Finally, we are cognizant of the Supreme Court’s admonition that “federal question jurisdiction arises" }, { "docid": "22164479", "title": "", "text": "After the district court dismissed Long’s claims, Long immediately filed an identical suit for damages in an Illinois Circuit Court. In that case, the defendants also filed a motion to dismiss Long’s complaint, asserting, in part, that the suit could only be brought before the original judge who signed the eviction order. The state court rejected this argument and denied the relevant portion of the defendants’ motion to dismiss. In reaching this outcome, the court concluded that Long’s complaint demonstrated that the defendants engaged in “fraud that actually prevented Long from participating in trial and circumvented a trial on the merits of her eviction.” Accordingly, the court concluded that Long was properly before the court “because a void judgment may be attacked at any time, in any court, either directly or collaterally.” II. Analysis As we shall see, the district court in this case was presented with very difficult and close questions of law. The defendants in this case contend that the district court properly dismissed Long’s suit for two reasons. The defendants first assert that the district court correctly dismissed Long’s suit for lack of subject matter jurisdiction based on the Rooker-Feldman doctrine. Alternatively, the defendants argue that even if the district court could exercise subject matter jurisdiction over Long’s complaint, the principle of res judicata prevents the district court from addressing her claims. A. Standard of Review When reviewing a dismissal for lack of subject matter jurisdiction, we note that a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Rueth v. United States EPA, 13 F.3d 227, 229 (7th Cir.1993). “The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (per curiam) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979)). We review a district court’s dismissal of an action under Rule 12(b)(1) de novo. See Selbe v. United States, 130" }, { "docid": "19939463", "title": "", "text": "Reader, a newspaper distributed in Chicago and neighboring suburbs (including some in nearby Indiana), advertising a “legal advocate” position that paid up to $27,000. Robert Johnson submitted an application and resume; Apna Ghar reviewed his resume and informed him it was not going to interview or hire him because he is male and it “preferred a female legal advocate.” Johnson filed a timely charge of discrimination with the Equal Employment Opportunity Commission, which determined there was reasonable cause to believe Apna Ghar discriminated against Johnson because of his gender, attempted to conciliate, and ultimately issued Johnson a right to sue letter. Johnson filed suit in federal court alleging discrimination in violation of Title VII. Apna Ghar filed a Rule 12(b)(1) motion to dismiss, claiming that subject matter jurisdiction was lacking because it was not an “employer” within the meaning of Title VII. The district court determined that “it would impermissibly stretch the Commerce Clause to read that provision (which is the source of power for the enactment of Title VII) as extending to ... Apna Ghar[’s] activity.” It therefore granted Apna Ghar’s motion to dismiss, and Johnson now appeals. II. ANALYSIS We review de novo a district court’s dismissal under Rule 12(b)(1). Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999); see also Selbe v. United States, 130 F.3d 1265, 1266 (7th Cir.1997). “When reviewing a dismissal for lack of subject matter jurisdiction, we note that a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” Long, 182 F.3d at 554 (citing Rueth v. United States Envtl. Prot. Agency, 13 F.3d 227, 229 (7th Cir.1993)). When considering such a motion, “‘[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’ ” Id. (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993)). Title VII applies to organizations that are “employers,” that is, organizations that are “engaged in an industry affecting commerce.” 42 U.S.C." }, { "docid": "9615889", "title": "", "text": "ILANA DIAMOND ROVNER, Circuit Judge. The United Transportation Union (“UTU”), which represents certain train service employees of the Gateway Western Railway Company (“GW”), alleges that GW violated the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., when its wholly-owned subsidiary began operating with non-union employees. The district court dismissed UTU’s complaint for lack of subject matter jurisdiction, finding that UTU had alleged a representation dispute that fell within the exclusive jurisdiction of the National Mediation Board (“NMB”) under section 2 Ninth of the RLA, 45 U.S.C. § 152 Ninth. UTU appeals that dismissal, contending that under Burlington Northern Ry. Co. v. United Transp. Union, 862 F.2d 1266 (7th Cir.1988), its complaint alleges a “major” dispute over which the district court should have exercised jurisdiction. Because we agree with the district court, however, that the instant claim is not justiciable in federal court, we affirm the judgment below. I. In considering a motion to dismiss for lack of subject matter jurisdiction, the district court must accept the complaint’s well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiffs favor. See Rueth v. EPA, 13 F.3d 227, 229 (7th Cir.1993). The parties here, however, also submitted evidentiary materials addressed to the jurisdictional question. Such evidence is properly considered at the dismissal stage when the question raised is one of subject matter jurisdiction. See Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (“The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” (internal quotation omitted)); Bowyer v. United States Dep’t of Air Force, 875 F.2d 632, 635 (7th Cir.1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990); Crawford v. United States, 796 F.2d 924, 927-29 (7th Cir.1986). The complaint alleges that since at least 1990, UTU and GW have been parties to a series of collective bargaining agreements negotiated under the RLA. Each of those agreements required that GW use crews on its trains comprised of a" }, { "docid": "18920064", "title": "", "text": "dismiss Counts I, II and V (insofar as it seeks relief pursuant to the federal Freedom of Information Act) for failure to state a claim and Counts III, IV and V (insofar as it seeks relief pursuant to the Indiana Access to Public Records Act) for lack of subject matter jurisdiction is granted. Counts I, II and V (insofar as it seeks to state a federal claim) are hereby dismissed with prejudice. Counts III, IV and V (insofar as it seeks to state a state law claim) are dismissed without prejudice. Judgment is entered in favor of the defendants and against the plaintiffs on all of plaintiffs’ claims. Each of the parties is to bear its respective costs in this case. It is so ORDERED. . Because defendants assert that the eleventh amendment bars jurisdiction over the plaintiffs' claims, their motion is better considered a motion to dismiss for lack of subject matter jurisdiction pursuant to subsection (b)(1) rather than subsection (b)(6). When ruling on a 12(b)(1) motion, a court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995). A court may properly look beyond the jurisdiction allegations of a complaint, however, and view whatever evidence has been submitted on the issue to determine whether subject matter jurisdiction exists. Id. . The two exceptions, waiver by the state and abrogation by Congress pursuant to its enforcement powers under the fourteenth amendment, are not applicable here. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). . As defendants concede, the IHFA is not subject to the Budget Agency Act, I.C. § 4-12-1-1 et seq., which requires state agencies to submit detailed statements of their budgets to the Budget Agency \"showing particularly the reason for any requested increase or decrease over former appropriations.” Kashani, 813 F.2d at 846. The Budget Agency then analyzes the statement and submits its recommendations regarding the agency’s budget to the legislature. . That provision further explains that any “[e]x-penses incurred" }, { "docid": "17431768", "title": "", "text": "the Federal Rules of Civil Procedure requires dismissal of a claim over which the federal court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(6). In reviewing a motion challenging the sufficiency of the allegations regarding subject matter jurisdiction, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999); see also Apex Digital v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir.2009) (labeling a motion to dismiss for lack of subject matter jurisdiction in which the court need only look to the complaint a “facial challenge”). If the defendant denies or controverts the truth of the jurisdictional allegations, however, “the district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Apex Digital, 572 F.3d at 443 (internal quotation marks and citation omitted) (referring to such a motion to dismiss a “factual challenge”). Once such evidence is offered, “[t]he presumption of correctness that we accord to a complaint’s allegations falls away,” and the plaintiff bears the burden of coming forward with competent proof that jurisdiction exists. Id. B. Defendants’ Rule 12(b)(1) motion to dismiss Defendants contend that Plaintiffs’ claims are moot and should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). (R. 19, Defs.’ Mem. at 4-6.) Article III of the Constitution limits the federal courts to adjudicating actual “cases” or “controversies.” U.S. Const, art. Ill, § 2. This requires that a party must have standing for each form of relief sought during every stage of litigation. Parvati Corp. v. City of Oak Forest, 630 F.3d 512, 516 (7th Cir.2010). When a party loses standing during the litigation due to intervening events, “the inquiry is ... one of mootness.” Id. (citation omitted). In other words, mootness is “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Friends" }, { "docid": "7340514", "title": "", "text": "Fed.R.Civ.P. 12(b)(1). The burden of establishing standing is on the plaintiff. See Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 913 (7th Cir.2009). All reasonable inferences are drawn in favor of the plaintiff, and all well-pleaded allegations are accepted as true. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999); see also Apex Digital v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir.2009) (labeling a motion to dismiss for lack of subject matter jurisdiction in which the court need only look to the complaint a “facial challenge”). If the defendant denies or controverts the truth of the plaintiffs jurisdictional allegations, however, “the district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Apex Digital, 572 F.3d at 443 (internal citations and quotations omitted) (referring to such a motion to dismiss as a “factual challenge”). Once such evidence is offered, “[t]he presumption of correctness that we accord to a complaint’s allegations falls away,” and the plaintiff bears the burden of coming forward with competent proof that jurisdiction exists. Id. A factual challenge to jurisdiction lies where “the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction.” Apex Digital, 572 F.3d at 444 (quoting United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.2003)). A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in the non-movant’s favor. Reger Dev. LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir.2010). To survive a motion to dismiss for failure to state a claim, the complaint must overcome “two easy-to-clear hurdles”: (1) “the complaint must describe the claim in sufficient detail to give" }, { "docid": "2461563", "title": "", "text": "an examination of the merits of these arguments. In deciding against Krizan on the Motion to Dismiss, the Magistrate made several factual determinations relating to jurisdiction to which Krizan objects. For instance, the Magistrate concluded that the record “unequivocally demonstrates that Krizan’s second DIB application is the same as her first DIB application.” Report, p. 6. Similarly, the Magistrate determined from the record that it “clearly demonstrates that the Commissioner did not actively or constructively reopen Krizan’s claim.” Id. at 7. Krizan objects to these factual conclusions drawn in the Magistrate’s report because she contends she had no notice that a factual review would be undertaken, had no opportunity to conduct discovery, and had no opportunity to respond to these factual assertions since the Commissioner failed to assert them in his initial motion. Objections, ¶¶ 1, 4. Krizan also contends that the factual assertions go “too far in that the Commissioner’s argument in support of the motion to dismiss did not address either issue and thus placed no burden upon Krizan to present such argument.” Objections, ¶ 4. This court disagrees. Although the Magistrate succinctly set forth the standard of review for the court upon considering a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the nature of Krizan’s objection warrants a second review of this standard. On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff has the obligation to establish jurisdiction by competent proof, and the court may properly look to evidence beyond the pleadings in this inquiry. See Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979) (“the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof.”); see e.g. Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (citations omitted) (courts may “properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction.”). When presented with evidence beyond the pleadings, the court may weigh the evidence in order to satisfy itself that jurisdiction exists;" }, { "docid": "1831054", "title": "", "text": "“subject matter jurisdiction is not evident on the face of the complaint, the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true.” Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995)(stating that “[w]hen reviewing a motion to dismiss brought under Rule 12(b)(1), this court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff.”). However, if the complaint appears on its face to indicate that the court has subject matter jurisdiction, “but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion.” Id. (citing Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993)). For the purpose of determining subject matter jurisdiction, this court “may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.1993)). The burden of proof in a Rule 12(b)(l)motion is “on the party asserting jurisdiction.” United Phosphorus, Ltd., 322 F.3d at 946. DISCUSSION I. Issue Preclusion (Counts I, II, III, and VII) DAA argues that Counts I, II, III, and VII are barred under the doctrine of issue preclusion and that Counts I and II are barred under the doctrine of claim preclusion. For the doctrine of issue preclusion to be applicable: “1) the issue sought to be precluded must be the same as that involved in the prior action, 2) the issue must have been actually litigated, 3) the determination of the issue must have been essential to the final judgment, and 4) the party against whom estoppel is invoked must be fully represented in the prior action.” Washington Group Intern., Inc. v. Bell. Boyd & Lloyd LLC, 383 F.3d 633, 636 (7th Cir.2004). For the doctrine of" }, { "docid": "1831053", "title": "", "text": "this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint” and that “[mjatching facts against legal elements comes later.”). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002); Kyle, 144 F.3d at 455. However, any conclusions pled must “provide the defendant with at least minimal notice of the claim,” Id., and the plaintiff cannot satisfy federal pleading requirements merely “by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claim.” Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that “[o]ne pleads a ‘claim for relief by briefly describing the events.” Sanjuan, 40 F.3d at 251. Federal Rule of Civil Procedure 12(b)(1) requires a court to dismiss an action when it lacks subject matter jurisdiction. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir.2003). If the concern of the court or party challenging subject matter jurisdiction is that “subject matter jurisdiction is not evident on the face of the complaint, the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true.” Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995)(stating that “[w]hen reviewing a motion to dismiss brought under Rule 12(b)(1), this court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff.”). However, if the complaint appears on its face to indicate that the court has subject matter jurisdiction, “but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion.” Id. (citing Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993)). For the purpose of determining subject matter jurisdiction, this court “may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine" }, { "docid": "11233047", "title": "", "text": "826 F.2d 573, 576 (7th Cir.1987); Marina Entertainment Complex, Inc. v. Hammond Port Authority, 842 F.Supp. 367, 369 (N.D.Ind.1994). See also Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979) (“the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof’).' Disputes over material facts will not prevent a court from determining jurisdictional issues. Marina Entertainment Complex, 842 F.Supp. at 369. When ruling on a Rule 12(b)(1) motion, a court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995); Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993). Nevertheless, a court may properly look beyond the jurisdictional allegations of a complaint and view whatever evidence has been submitted on the issue to determine whether subject matter jurisdiction exists. Ezekiel, 66 F.3d at 897; Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.1993); Alliance Far Clean Coal v. Bayh, 888 F.Supp. 924, 929 (S.D.Ind.1995). See also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990). Where the movant has challenged the factual allegations of the party invoking the district court’s jurisdiction, the invoking party “must submit affidavits and other relevant evidence to resolve the factual dispute regarding the court’s jurisdiction.” Kontos, 826 F.2d at 576. II. STATEMENT OF FACTS Between August 1991 and August 1993, Plaintiffs children Angela and Adrian Leves-ter were students at Greenbriar Elementary School in the Metropolitan School District of Washington Township (“MSDWT”). (Affidavit of Mary Jo Dare, Director of Special Education for the Board of School Commissioners of the City of Indianapolis, ¶ 3; Exhibit A, 5/21/93 Letter from Marvis W. Ful-ford) In May 1991 while at Greenbriar, Angela was diagnosed as having a learning disability and was assigned to receive special tutoring called “resource room services” in addition to her regular classes. (Dare Aff., ¶ 4; Exhibit B, MSDWT Referral and Case Conference Report) On May 21, 1993 MSDWT informed Plaintiff that because she and" }, { "docid": "19975185", "title": "", "text": "argues that Garelli Wong’s CFAA count fails to state a claim upon which relief can be granted and contends that if the CFAA claim is dismissed, Garel-li Wong’s two remaining counts should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) because federal jurisdiction would not be present. LEGAL STANDARD Fed.R.Civ.P. 12(b)(6) evaluates the legal sufficiency of a plaintiffs complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe all allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat’l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). To be cognizable, the factual allegations contained within a complaint must raise a claim for relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). However, a pleading need only convey enough information to allow the defendant to understand the gravamen of the complaint. Payton v. Rushr-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999). The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) is to dismiss claims over which a federal court lacks subject matter jurisdiction. Jurisdiction is the “power to decide” and must be conferred upon a federal court. In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir.1986). The plaintiff bears the burden of establishing that the jurisdiction requirements have been met. see Kontos v. U.S. Dep’t of Labor, 826 F.2d 573, 576 (7th Cir.1987). When a defendant moves for dismissal pursuant to Fed. R.Civ.P. 12(b)(1), the plaintiff must support its allegations with competent proof of jurisdictional facts. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942). With these principles in mind, we consider the instant motion. DISCUSSION I. Computer Fraud and Abuse Act The subject matter jurisdiction of Garel-li Wong’s complaint is premised entirely upon its CFAA" }, { "docid": "19939464", "title": "", "text": "Ghar[’s] activity.” It therefore granted Apna Ghar’s motion to dismiss, and Johnson now appeals. II. ANALYSIS We review de novo a district court’s dismissal under Rule 12(b)(1). Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999); see also Selbe v. United States, 130 F.3d 1265, 1266 (7th Cir.1997). “When reviewing a dismissal for lack of subject matter jurisdiction, we note that a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” Long, 182 F.3d at 554 (citing Rueth v. United States Envtl. Prot. Agency, 13 F.3d 227, 229 (7th Cir.1993)). When considering such a motion, “‘[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’ ” Id. (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993)). Title VII applies to organizations that are “employers,” that is, organizations that are “engaged in an industry affecting commerce.” 42 U.S.C. § 2000e(b); Walters v. Metro. Educ. Enter., Inc., 519 U.S. 202, 205, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997); Sharpe v. Jefferson Distrib. Co., 148 F,3d 676, 677 (7th Cir.1998). In Title VII cases, this court has held that “a district court does not lack subject matter jurisdiction in cases where the defendant fails to meet the statutory definition of ‘employer.’ ” Komorowski v. Townline Mini-Mart & Rest., 162 F.3d 962, 964 (7th Cir.1998) (citing Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677 (7th Cir.1998); Ost v. W. Suburban Travelers Limo., Inc., 88 F.3d 435, 438 n. 1 (7th Cir.1996)). If Johnson presents “a non-frivolous claim under federal law; no more is necessary for subject-matter jurisdiction. A plaintiffs inability to demonstrate that the defendant [is an ‘employer’] is just like any other failure to meet a statutory requirement. There is a gulf between defeat on the merits and a lack of jurisdiction.” Sharpe, 148 F.3d at 677 (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 87-93, 118 S.Ct. 1003, 140" }, { "docid": "22164480", "title": "", "text": "that the district court correctly dismissed Long’s suit for lack of subject matter jurisdiction based on the Rooker-Feldman doctrine. Alternatively, the defendants argue that even if the district court could exercise subject matter jurisdiction over Long’s complaint, the principle of res judicata prevents the district court from addressing her claims. A. Standard of Review When reviewing a dismissal for lack of subject matter jurisdiction, we note that a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Rueth v. United States EPA, 13 F.3d 227, 229 (7th Cir.1993). “The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (per curiam) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979)). We review a district court’s dismissal of an action under Rule 12(b)(1) de novo. See Selbe v. United States, 130 F.3d 1265, 1266 (7th Cir.1997). B. The Applicability of the Rooker-Feldman Doctrine Under the Rooker-Feldman doctrine, lower federal courts do not have subject matter jurisdiction over claims seeking review of state court judgments. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The doctrine applies not only to claims that were actually raised before the state court, but also to claims that are inextricably intertwined with state court determinations. See Feldman, 460 U.S. at 482 n. 16, 103 S.Ct. 1303 (“By failing to raise his claims in state court a plaintiff may forfeit his right to obtain review of the state-court decision in any federal court.”). Rooker-Feldman, therefore, requires a party seeking review of a state court judgment or presenting a claim that a state judicial proceeding has violated their constitutional rights to pursue relief through the state court system and ultimately to the Supreme Court. See Centres," }, { "docid": "11233046", "title": "", "text": "ENTRY BARKER, Chief Judge. Plaintiff Constance E. Smith (“Plaintiff’) has brought an Amended Complaint against Indianapolis Public Schools (“Defendant” or “IPS”) for its alleged failure to provide Plaintiffs children with a free appropriate public education in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. This matter is currently before the Court on Defendant’s motion to dismiss the Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), on the grounds that this Court lacks jurisdiction to hear the claim because Plaintiff has failed to exhaust administrative remedies as required by the statute. Defendant also moves to strike evidence submitted by Plaintiff in her response brief to Defendant’s motion to dismiss. For the reasons stated below, the Court grants Defendant’s motion to dismiss and denies Defendant’s motion to strike as moot. I. STANDARD OF REVIEW Where a movant has challenged a district court’s subject matter jurisdiction, the party invoking jurisdiction has the burden of establishing that all jurisdictional requirements have been satisfied. Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987); Marina Entertainment Complex, Inc. v. Hammond Port Authority, 842 F.Supp. 367, 369 (N.D.Ind.1994). See also Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979) (“the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof’).' Disputes over material facts will not prevent a court from determining jurisdictional issues. Marina Entertainment Complex, 842 F.Supp. at 369. When ruling on a Rule 12(b)(1) motion, a court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995); Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993). Nevertheless, a court may properly look beyond the jurisdictional allegations of a complaint and view whatever evidence has been submitted on the issue to determine whether subject matter jurisdiction exists. Ezekiel, 66 F.3d at 897; Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.1993); Alliance Far Clean Coal v. Bayh, 888 F.Supp. 924, 929" }, { "docid": "16248959", "title": "", "text": "3, 4, and 5 pursuant to Fed.R.Civ.P. 12(b)(6). A motion to dismiss challenging the adequacy of process and service of process must allege facts showing the Plaintiff failed to comply with the requirements of Fed.R.Civ.P. 4. Bilal v. Rotec Industries, Inc., 2004 WL 1794918 at *4 (N.D.Ill., August 4, 2004). Once this issue is raised, the plaintiff must make a prima facia showing of proper service. Id at *3. When resisting a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, the plaintiff bears the burden of demonstrating, by competent proof, that jurisdiction properly lies with the federal court. Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir.1999) citing Commodity Trend Service, Inc. v. Commodity Futures Trading Com’n, 149 F.3d 679, 685 (7th Cir.1998). Rule 12(b)(1) motions may be premised on either facial or factual attacks on jurisdiction. Villasenor v. Industrial Wire & Cable, Inc., 929 F.Supp. 310 (N.D.Ill.1996). “A facial at tack is a challenge to the sufficiency of the pleading itself ... A factual attack, on the other hand, is ... a challenge to the factual existence of subject matter jurisdiction.” Id. quoting United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994). Although a facial attack requires the court to take all well-pleaded facts as true and construe the pleadings and all reasonable inferences drawn from the pleadings in a light most favorable to the non-moving party, such presumption of correctness falls away under a factual attack wherein the defendant proffers evidence that calls into question the court’s jurisdiction. Commodity Trend 149 F.3d at 685; Sapperstein 188 F.3d at 856. When a party properly raises a factual question attacking subject matter jurisdiction, the court is not bound to accept allegations of the complaint establishing jurisdiction as true. The court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists. Fed.R.Civ.P. 12(b)(1), see also Stayner v. Village of Sugar Grove (In re Stayner) 185" }, { "docid": "23265910", "title": "", "text": "757, 761 (7th Cir.2001). In assessing whether a preliminary injunction is warranted, we must consider whether the party seeking the injunction has demonstrated that “1) it has a reason^ able likelihood of success on the merits; 2) no adequate remedy at law exists; 3) it will suffer irreparable harm if it is denied; 4) the irreparable harm the party will suffer without injunctive relief is greater than the harm the opposing party will suffer if the preliminary injunction is granted; and 5) the preliminary injunction will not harm the public interest.” Id. Ill Before turning to the merits, we must address two jurisdictional issues that the Municipal Plaintiffs and Rest Haven have raised. The first is whether the district court erred in dismissing with prejudice all claims brought by Rest Haven as moot, because the City no longer plans to acquire that cemetery. Second is the question whether the district court correctly dismissed the Municipal Plaintiffs’ claims against the FAA for lack of jurisdiction based upon 49 U.S.C. § 46110. We review de novo the district court’s grant of a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), which includes a dismissal on mootness grounds. See, e.g., Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir.2002). “When reviewing a dismissal for lack of subject matter jurisdiction, we note that a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999). In considering such a motion, “[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id. A. Rest Haven At the beginning of the EIS process, the City submitted to the FAA a proposed revision to its airport layout plan that included the construction of a runway in an area that would require the relocation of existing air cargo facilities. In that proposed plan, the City indicated that" } ]

[ { "docid": "22671365", "title": "", "text": "the procedures laid out in De Leon v. INS, 115 F.3d 643 (9th Cir.1997), and this circuit’s General Order 6.4(c), this court continued the temporary stay of removal on March 31, 2003. On November 7, 2003, Desta filed a motion to stay voluntary departure which was opposed by the Attorney General. II. Asylum Application To be eligible for asylum, an individual must show that he is unwilling or unable to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (quoting 8 U.S.C. § 1101(a)(42)(A)). Not only must the petitioner show that he or she subjectively fears persecution, but he or she must also offer “credible, direct, and specific evidence in the record” to show that persecution is a reasonable possibility. See Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995). Because the IJ based his decision to deny asylum on an adverse credibility determination, he must provide “specific, cogent reasons” to support his determination. See Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir.2000). These reasons cannot be peripheral, but rather must go to the heart of petitioner’s claim. See de Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir.1997). Because the BIA adopted the decision of the IJ as its own, we review the decision of the IJ. See Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.1995). We hold that there was substantial evidence to support the IJ’s decision. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Among other things, there was support for the IJ’s conclusion that several documents may have been fraudulent, including the letters and membership card offered to show that Desta was a member in the AAPO and Medhin. The genuineness of these documents goes to the heart of his claim. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000). Further, there were material inconsistencies in petitioner’s testimony concerning the extent of his injuries, as well as in the wife’s testimony" } ]

[ { "docid": "23023750", "title": "", "text": "that it was “implausible that someone would travel all the way from China to Mexico, with the claimed purpose of applying for asylum in the United States, and ultimately simply return to China despite fears of harm awaiting him there.” The BIA denied Cui’s request for withholding of removal and for CAT relief, commenting: “[I]n the absence of credible evidence reflecting any reason why the Chinese government would seek [Cui], there is no evidence of a clear probability of torture at the instigation of, or with the consent or acquiescence of, current government officials.” Ill Where, as here, the BIA’s decision incorporates part of the IJ’s opinion as its own, we review both. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010) (citing Molina-Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th Cir.2002)). We review the BIA’s findings of fact, including credibility findings, for substantial evidence and uphold the BIA’s findings unless the evidence compels a contrary result. Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006); see also Shrestha v. Holder, 590 F.3d 1034, 1039, 1048 (9th Cir.2010). “While the substantial evidence standard demands deference to the IJ, ‘[w]e do not accept blindly an IJ’s conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the IJ is fatally flawed.’ ” Gui v. I.N.S., 280 F.3d 1217, 1225 (9th Cir.2002) (quoting Osorio v. I.N.S., 99 F.3d 928, 931 (9th Cir.1996)). The applicant bears the burden of establishing eligibility for asylum through credible evidence. See Liu v. Holder, 640 F.3d 918, 925 (9th Cir.2011); Singh v. Ashcroft, 367 F.3d 1139, 1142 (9th Cir.2004); Ghaly v. I.N.S., 58 F.3d 1425, 1428 (9th Cir.1995). To prevail, an applicant must present substantial evidence that would support a finding that “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir.2011). “We have held that the uncorroborated testimony of the applicant, if credible, may be sufficient to sustain the applicant’s burden.” See Jibril v. Gonzales," }, { "docid": "22801017", "title": "", "text": "reasons explicitly identified by the BIA, and then examine the reasoning articulated in the IJ’s oral decision in support of those reasons. Cf. Rivera, 508 F.3d at 1275(‘When the BIA has reviewed the IJ’s decision and incorporated parts of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.”). Stated differently, we do not review those parts of the IJ’s adverse credibility finding that the BIA did not identify as “most significant” and did not otherwise mention. “We review the BIA’s findings of fact, including credibility findings, for substantial evidence and must uphold the BIA’s finding unless the evidence compels a contrary result.” Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006) (internal quotation marks omitted); see 8 U.S.C. § 1252(b)(4)(B). Under this deferential standard of review, “the IJ or BIA must identify specific, cogent reasons for an adverse credibility finding, and the reasons must .... strike at the heart of the claim for asylum.” Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006) (internal quotation marks and citations omitted). “Minor inconsistencies that reveal nothing about an asylum applicant’s fear for her safety are not an adequate basis for an adverse credibility finding.” Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.2004) (internal quotation marks and brackets omitted). “An IJ must ... afford petitioners a chance to explain inconsistencies, and must address these explanations.” Singh, 439 F.3d at 1105. III. Discussion The BIA affirmed the IJ based on only four of the reasons the IJ provided in support of his adverse credibility finding. “We independently evaluate each ground cited by the IJ for his adverse credibility findings.” Chen v. Ashcroft, 362 F.3d 611, 617 (9th Cir.2004). “So long as one of the identified grounds is supported by substantial evidence and goes to the heart of [the] claim of persecution, we are bound to accept the IJ’s adverse credibility finding.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003). We conclude that the BIA has failed to provide “specific, cogent reasons” in support of the adverse credibility finding. Therefore, the adverse credibility finding is not" }, { "docid": "22627868", "title": "", "text": "REENA RAGGI, Circuit Judge. Shunfu Li, a native of China who claims to have been persecuted in that country for her practice of Falun Gong, petitions for review of the July 16, 2004 decision of the Board of Immigration Appeals (“BIA”) affirming the April 16, 2003 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Shunfu Li, No. [ AXX XXX XXX ] (BIA July 16, 2004), aff'g In re Shunfu Li, No. [ AXX XXX XXX ] (Immig.Ct.N.Y.City, Apr. 16, 2003). Petitioner submits that, to the extent the agency determined that her fear of future persecution was not credible, it erred in (1) finding her testimony (a) vague, and (b) inconsistent with website reports of conditions in China; and (2) faulting her failure to authenticate documentary evidence of an outstanding warrant for her arrest in China. Since the agency decided Li’s case, this court has indicated that certain inquiries or findings are necessary preliminary to holding that vague or unauthenticated evidence is not credible or cannot be relied upon. See Ming Shi Xue v. BIA, 439 F.3d 111, 121-22 (2d Cir.2006) (holding finding of testimonial vagueness cannot by itself support adverse credibility determination unless IJ identifies “alleged inconsistencies” and provides applicant with “an opportunity to address them”); Jin Chen v. United States Dep’t of Justice, 426 F.3d 104, 114 (2d Cir.2005) (same); Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir.2005) (holding IJ cannot reject purportedly official documents solely because petitioner failed to authenticate them pursuant to 8 C.F.R. § 287.6). The agency’s decision did not meet the requirements imposed by these cases, and hence was erroneous. Further, because we cannot confidently predict that the agency would reach the same decision absent these errors, we grant Li’s petition, vacate the challenged agency decision, and remand the case to the BIA for further proceedings. 1. Background Shunfu Li entered the United States without documentation in June 2001. In response to removal proceedings initiated by the Immigration" }, { "docid": "22667437", "title": "", "text": "applicant’s testimony and the applicant’s claims; and (2) to establish that the inconsistencies were material to the applicant’s claims for asylum. See Secaida-Rosales, 331 F.3d at 307-08; Heui Soo Kim v. Gonzales, 458 F.3d 40, 45 (2d Cir.2006) (concluding that an adverse credibility determination was impermissi-bly based on minor discrepancies); see also Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (adopting similar standard); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999) (same). In 2005, Congress passed the REAL ID Act, which, inter alia, amended the INA in order to “creat[e] ... a uniform standard for credibility” determinations. See H.R. Rep. 109-72, at 166-67 (2005); see also In re J-Y-C- 24 I. & N. Dec. 260, 262 (B.I.A.2007) (relating the legislative history of the amendment). The REAL ID Act freed an IJ from the nexus and materiality requirements by explicitly stating that an IJ may base an adverse credibility determination on any inconsistencies, “inaccuracies or falsehoods ... 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)(l)(B)(iii) (emphasis added). Under the standard established by the REAL ID Act, an IJ is required to evaluate inconsistencies in light of the “totality of the circumstances.” Id. DISCUSSION We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). When evaluating credibility deter- ruinations for substantial evidence, we afford “particular deference” to the IJ. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks omitted). We must assess whether the IJ has provided “specific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding.” Id. at 74 (internal quotation marks omitted). “Where the IJ’s adverse credibility finding is based on specific examples ... of inconsistent statements” or “contradictory evidence,” a “reviewing court will generally not" }, { "docid": "22429552", "title": "", "text": "Gong, concluding these inconsistencies supported a finding of knowing fabrication. Finally, the BIA found that Liu was given adequate opportunities to address these grounds. The BIA thus affirmed its previous frivolousness finding. The present petition challenges both this finding and the earlier denial of Liu’s asylum and withholding of removal claims. We have jurisdiction under 8 U.S.C. § 1252(a)(1). STANDARD OF REVIEW “When the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, our review ‘is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.’” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.2010) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). Because Liu’s application for relief was filed before May 11, 2005, pre-REAL ID Act standards apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.2005). We review credibility findings for substantial evidence. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Whether the IJ complied with the BIA’s four procedural requirements for a frivolousness finding is a question of law we review de novo. See Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir.2010). DISCUSSION Liu’s petition challenges the BIA’s denial of her asylum and withholding of removal claims and its finding that she filed a frivolous asylum application. We deny her petition as to asylum and withholding of removal because the IJ’s adverse credibility determination, as adopted by the BIA, was supported by substantial evidence. We grant her petition as to the frivolousness finding, however. Although the grounds for the adverse credibility determination overlap with those the IJ and BIA cited in support of the frivolousness finding, “a finding of frivolousness does not flow automatically from an adverse credibility determination.” Id. The heightened substantive and procedural requirements for a frivolousness finding make that inquiry distinct, and we conclude those heightened requirements were not met here. We reject Liu’s final claim that the IJ violated her due process rights. I. Credibility An asylum applicant bears the burden of establishing her claim through credible evidence. See 8 U.S.C." }, { "docid": "20400943", "title": "", "text": "affirmed the IJ’s ruling” but also “discussed some of the bases for the IJ’s opinion, we review both the IJ’s and BIA’s opinions.” Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir.2008)(internal quotation marks omitted). We also review the IJ’s credibility determination when the BIA adopted it. Id. Petitioners for asylum have the burden to prove they are “refugee[s],” 8 U.S.C. § 1158(b)(l)(B)(i), who are people “unable or unwilling” to return to their home countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1101(a)(42)(A). Weng’s brief attacks the ground the BIA and IJ gave for rejecting her petition: that her testimony lacked credibility. We review adverse credibility determinations for substantial evidence. Mam v. Holder, 566 F.3d 280, 283 (1st Cir.2009). We will not disturb an adverse-credibility finding “unless [a] petitioner!] can show the record evidence, considered as a whole, “would compel a reasonable factfinder to make a contrary determination.’ ” Id. (quoting Cuko, 522 F.3d at 37). There is no real dispute that the discrepancies the BIA or IJ relied on are “actually present in the administrative record” and “generate specific and cogent reasons” to infer the petitioner’s testimony was not credible. Ru Xiu Chen v. Holder, 579 F.3d 73, 77 (1st Cir.2009). There is also no serious dispute that these discrepancies went to the heart of Weng’s claim and were “not merely peripheral or trivial matters,” a legal requirement before the REAL ID Act’s effective date. See Bebri v. Mukasey, 545 F.3d 47, 50 & n. 1 (1st Cir.2008). This case turns on the IJ’s finding—and the BIA’s affirmance'—that the petitioner’s explanation was not credible and so she failed to give “a persuasive explanation for these discrepancies.” Ru Xiu Chen, 579 F.3d at 77 (quoting Mam, 566 F.3d at 283). Our review, as always, is whether substantial evidence supports the IJ’s determination that Weng had not met her burden of proof. See id. Weng argues that the IJ’s decision to reject her explanation was based on conjecture and speculation and not" }, { "docid": "22610327", "title": "", "text": "the proper course of action for a court of appeals is to remand the issue to the BIA for decision.” Chen v. Ashcroft, 362 F.3d 611, 621 (9th Cir.2004) (citing INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002)). We therefore do not address Attia’s additional challenges to the IJ’s decision. Ill Rizk claims that the IJ’s adverse credibility determination was not supported by substantial evidence. Where, as here, the BIA expressly adopts the IJ’s decision, we review the IJ’s findings as if they were the BIA’s. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010). Because credibility determinations are findings of fact by the IJ, they “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). “To reverse [such a] finding we must find that the evidence not only supports [a contrary] conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We must uphold the IJ’s adverse credibility determination “[s]o long as one of the identified grounds is supported by substantial evidence and goes to the heart of[the alien’s] claim of persecution.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003). The IJ “must have a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994); accord Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006). Major inconsistencies on issues material to the alien’s claim of persecution constitute substantial evidence supporting an adverse credibility determination. See Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir.2005). This general rule has two qualifications, however. First, minor inconsistencies regarding non-material and trivial details, such as typographical errors or inconsistencies in specific dates and times that lack a close nexus to the petitioner’s asserted grounds of persecution, cannot form the exclusive basis for an adverse credibility determination. Id. at 1064. Of course, even minor inconsistencies going to the heart of a petitioner’s claim may, when considered collectively, “deprive [the] claim" }, { "docid": "22298385", "title": "", "text": "other protected ground under [8 U.S.C. § 1158], if he is removed to the Republic of Congo. Id. (citations omitted). Passi timely petitioned this Court for review, again only challenging the denial of his asylum claim. II When the BIA affirms an IJ’s decision on different grounds, we review only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). As we have explained on several occasions, however, when the BIA affirms the IJ’s decision in some respects, but not others, we may also review the IJ’s decision, although our review is confined to those reasons for denying relief that were adopted by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). See generally Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). In this case, the BIA assumed that Passi’s asylum application was timely filed and that he had testified credibly, so we may not rest on the IJ’s adverse credibility finding or her ruling pretermitting Passi’s asylum claim. See Yan Chen, 417 F.3d at 271. Instead the BIA adopted the IJ’s reason for denying Passi’s withholding of removal claim — that country conditions had changed — to reject his asylum claim. Although we are reviewing the BIA’s decision, we find it informative in this case to look to the IJ’s decision as well to decipher the reasoning in which the BIA “concur[red]” just as we would if the BIA had merely modified or supplemented the IJ’s decision. We review the agency’s factual findings under the substantial evidence standard treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed, for example, where the agency’s determination was “based on an inaccurate perception of the record, omitting potentially significant facts.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (internal quotation marks omitted); see also Cao He" }, { "docid": "23023751", "title": "", "text": "1048 (9th Cir.2010). “While the substantial evidence standard demands deference to the IJ, ‘[w]e do not accept blindly an IJ’s conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the IJ is fatally flawed.’ ” Gui v. I.N.S., 280 F.3d 1217, 1225 (9th Cir.2002) (quoting Osorio v. I.N.S., 99 F.3d 928, 931 (9th Cir.1996)). The applicant bears the burden of establishing eligibility for asylum through credible evidence. See Liu v. Holder, 640 F.3d 918, 925 (9th Cir.2011); Singh v. Ashcroft, 367 F.3d 1139, 1142 (9th Cir.2004); Ghaly v. I.N.S., 58 F.3d 1425, 1428 (9th Cir.1995). To prevail, an applicant must present substantial evidence that would support a finding that “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir.2011). “We have held that the uncorroborated testimony of the applicant, if credible, may be sufficient to sustain the applicant’s burden.” See Jibril v. Gonzales, 423 F.3d 1129, 1133 (9th Cir.2005). “If the trier of fact either does not believe the applicant or does not know what to believe, the applicant’s failure to corroborate testimony can be fatal to his asylum application.” Sidhu v. I.N.S., 220 F.3d 1085, 1090 (9th Cir.2000); see also Malhi v. I.N.S., 336 F.3d 989, 993 (9th Cir.2003). Here, because Cui filed his asylum application prior to May 11, 2005, the burden of proof provisions in the REAL ID Act of 2005 do not apply. Instead, “[w]hen the IJ denies asylum based ‘on an adverse credibility determination, he must provide specific, cogent reasons to support his determination ... [which] cannot be peripheral, but rather must go to the heart of petitioner’s claim.’ ” Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007) (quoting Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004)). In affirming the denial of relief in Don, we explained: Don’s inability to “state as to when it was that this man who was the source of him having to flee his country started" }, { "docid": "22648091", "title": "", "text": "article reporting that an LTTE terrorist working at the Chinese Restaurant in Padukka was arrested and the TDB was unable to “interrogate” the unnamed owner of the restaurant, who fled. Don introduced into evidence a copy of his business license to establish that he was one of two partners owning a Chinese restaurant in Padukka. However, the IJ noted a discrepancy between the license date on the translated copy and the original. The IJ cited material inconsistencies in Don’s testimony and the evidence related to the LTTE threats, and found Don’s account of threats from the TDB to be implausible. Consequently, the IJ found that Don had not “made a credible and plausible claim for asylum let alone that it is more likely than not that he would be subjected to persecution on any grounds should he return.” The BIA summarily affirmed the IJ’s decision stating: “The Immigration Judge’s conclusions regarding the inconsistencies in the respondent’s testimony form a sufficient basis for an adverse credibility finding.” Don timely appealed. II. STANDARDS OF REVIEW Where the BIA adopts the decision of the IJ, we review the IJ’s decision. See Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir.2005). The standard of review for factual findings made by the IJ is a deferential substantial evidence standard, and credibility findings will be upheld unless the evidence compels a contrary result. Id. (emphasis added). This deferential standard of review “precludes relief absent a conclusion that no reasonable factfinder could have reached the agency’s result.” Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.2005) (citation and internal quotation marks omitted). III. DISCUSSION A. Adverse Credibility Determination When the IJ denies asylum based “on an adverse credibility determination, he must provide specific, cogent reasons to support his determination ... [which] cannot be peripheral, but rather must go to the heart of petitioner’s claim.” Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (citations and internal quotation marks omitted). Also, the IJ “must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.”" }, { "docid": "22918323", "title": "", "text": "large part because of “major inconsistencies and problems” related to “where they are from,” which she concluded went “to the heart of their claim.” The IJ’s oral decision extensively discussed Aghavni’s responses to questions about the documents’ origins and Aghavni’s inability to present additional evidence to corroborate that she and her family had lived in Iran. Based on her adverse credibility finding, the IJ held that Aghavni failed to establish the date of her arrival in the United States, and thus that she had not shown that she submitted her asylum application within one year of her arrival as required by 8 U.S.C. § 1158(a)(2)(B). The IJ therefore pretermitted Petitioners’ asylum claim as untimely. The IJ then went on to hold that Petitioners also failed to establish their eligibility for withholding of removal and protection under the CAT because they had not credibly “show[n] where they are from.” The IJ denied all relief and ordered Petitioners removed “to either Iran or Armenia.” The BIA “adopt[ed] and affirm[ed]” the IJ’s denial of asylum, citing Matter of Burbano, 20 I & N Dec. 872, 874 (B.I.A.1994), “on the basis of [Petitioners’] failure to provide clear and convincing evidence that their applications for asylum were timely filed.” The BIA also “adopt[ed] and affirm[ed]” the IJ’s denial of withholding of removal and CAT protection, specifying that it agreed with the IJ’s finding that Petitioners failed to “provide credible testimony and evidence to establish their alienage and thus carry their burden of proof’ for either withholding or CAT protection. Petitioners timely appealed. Scope and Standard of Review Constitutional due process challenges to immigration decisions are reviewed de novo. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th Cir.2003). Where the BIA cites Matter of Burbano and does not express any disagreement with the IJ’s decision, we review the IJ’s decision as if it were the BIA’s. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc). Before reaching the merits, we first decide a question of the scope of our jurisdiction. In its Notice To Appear, the government alleged that Aghavni last arrived in" }, { "docid": "22844761", "title": "", "text": "25, 2005, the IJ denied Joseph’s claim for asylum, withholding of removal, and relief under CAT because she had “very real concerns regarding the credibility of [Joseph’s] claim.” The IJ found that Joseph submitted a detailed declaration and detailed testimony at his removal hearing. Because of that detail, the IJ stated that she “would have expected ... a more thorough explanation, during the bond hearing, with respect to [Joseph’s] fear, his past persecution.” Specifically, the IJ “would have expected to have been told of persecution and assaults on [Joseph’s] family” when she asked Joseph at his bond hearing why he had left Haiti. The BIA affirmed the IJ’s decision and specifically stated that it found that the record supported the IJ’s adverse credibility finding. The BIA found “no error on the part of the [IJ] in noting the inconsistencies between the claim presented by [Joseph] during his bond hearing and that presented subsequently during his merits hearing.” The BIA also denied Joseph’s motion to remand, which Joseph had filed alongside his appeal. II. STANDARD AND SCOPE OF REVIEW Where the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994), and does not express disagreement with any part of the IJ’s decision, the BIA adopts the IJ’s decision in its entirety. See, e.g., Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.2005) (en banc). Where, however, the BIA conducts its own review of the evidence and law, the court’s “review is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (internal quotation marks omitted). Here, the BIA cited Matter of Burbano and emphasized that it found the IJ’s adverse credibility finding “supported by the record.” After the BIA explained why it agreed with the IJ’s adverse credibility finding, it addressed Joseph’s arguments that the IJ had improperly based her adverse credibility finding on Joseph’s testimony at the bond hearing. Because the BIA expressly adopted the IJ’s decision under Matter of Burbano, but also provided its own review of the evidence and the law," }, { "docid": "20304896", "title": "", "text": "its entirety, citing to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). Thus, we review the BIA’s decision regarding asylum and ble IJ’s decision regarding withholding of removal and CAT relief. See Ahir v. Mukasey, 527 F.3d 912, 916 (9th Cir.2008); Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005) (en banc). II. Asylum The BIA correctly found that Mutuku’s application for asylum was barred by the one-year statute of limitations. 8 U.S.C. § 1158(a)(2)(B). Mutuku’s hope that conditions in Kenya would improve does not constitute an extraordinary circumstance excusing her delay in applying for asylum. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5). We dismiss Mutuku’s petition insofar as it relates to her asylum claim. Mutuku’s application for withholding of removal and relief under CAT, however, is not time barred. See Saleh Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir.2004). III. Withholding of Removal a. Adverse Credibility Determination The IJ denied Mutuku’s application for asylum and withholding of removal because he found that her testimony was not credible. With respect to asylum, the BIA disclaimed reliance on the IJ’s adverse credibility finding, and chose to affirm solely on the basis that Mutuku’s application was not timely. See Ahir, 527 F.3d at 916(citing Plasencia-Ayala v. Mukasey, 516 F.3d 738, 743 (9th Cir.2008) overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009)); Abebe, 432 F.3d at 1040 (citing Tchoukhro va v. Gonzales, 404 F.3d 1181 (9th Cir.2005), vacated on other grounds, 549 U.S. 801, 127 S.Ct. 57, 166 L.Ed.2d 7 (2006)). However, the BIA did adopt and affirm the IJ’s adverse credibility determination insofar as it provided a basis for denying Mutuku’s application for withholding of removal. The IJ found that Mutuku was not credible because, though Mutuku had testified that she had almost been run over by a truck driven by a KANUP supporter in 1992, she did not mention this significant event in her asylum application. Credibility determinations are reviewed under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009); Don v. Gonzales, 476 F.3d" }, { "docid": "22844762", "title": "", "text": "SCOPE OF REVIEW Where the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994), and does not express disagreement with any part of the IJ’s decision, the BIA adopts the IJ’s decision in its entirety. See, e.g., Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.2005) (en banc). Where, however, the BIA conducts its own review of the evidence and law, the court’s “review is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (internal quotation marks omitted). Here, the BIA cited Matter of Burbano and emphasized that it found the IJ’s adverse credibility finding “supported by the record.” After the BIA explained why it agreed with the IJ’s adverse credibility finding, it addressed Joseph’s arguments that the IJ had improperly based her adverse credibility finding on Joseph’s testimony at the bond hearing. Because the BIA expressly adopted the IJ’s decision under Matter of Burbano, but also provided its own review of the evidence and the law, we review both the IJ and the BIA’s decision. Hosseini, 471 F.3d at 957. Credibility determinations are reviewed under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009). Under the substantial evidence standard, credibility findings are upheld unless the evidence compels a contrary result. Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007). III. DISCUSSION A. The IJ Erred by Considering Her Bond Hearing Notes During the Removal Hearing We must decide whether the IJ erred in considering her unrecorded notes from Joseph’s bond hearing during his later removal hearing. The BIA found that the IJ had not erred in “noting the inconsistencies between the claim presented by [Joseph] during his bond hearing, and that presented subsequently during his merits hearing.” Joseph argues that the IJ’s consideration of her notes from Joseph’s unrecorded bond hearing was an error. In support of his claim, Joseph cites 8 C.F.R. § 1003.19(d). This regulation, which pertains to bond hearings, states that “[consideration by the[IJ] of an application or request of a respondent regarding custody" }, { "docid": "23108420", "title": "", "text": "returned to Mauritania. In one respect, however, the BIA seemed to go further than the IJ, noting “that the record indicates that the current situation in Mauritania has improved dramatically, lessening the likelihood of persecution.” Accordingly, the Board dismissed Niang’s appeal. This petition for review of the agency’s denial of Niang’s withholding and CAT claims followed. Discussion Where, as here, the BIA adopts the decision of the IJ, and supplements that decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 275 (2d Cir.2005). 1. Past Persecution A. The Adverse Credibility Finding The petition attacks the IJ’s findings that Niang submitted identity documents that were not genuine, and that he testified untruthfully about them. Finding various errors in the reasoning leading to the IJ’s adverse credibility decision, we vacate and remand that finding. This Court reviews the agency’s factual findings, including its adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Nevertheless, the court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks and citations omitted). Particular deference is given to the trier of fact’s assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). To his credit, the IJ expressly stated that he found no fault with Niang’s demeanor. Petitioner’s “manner of speaking” was, in the eyes of the IJ, “totally consistent with somebody who had lived through what he said he did.” Thus, one of the most powerful reasons to defer to an IJ’s adverse credibility finding is absent in this case. See Wensheng Yan v. Mukasey," }, { "docid": "23632236", "title": "", "text": "to provide a plausible and coherent account of the basis for his fear,” the IJ found Chen credible and granted his application for asylum. The BIA’s Decision The government appealed the IJ’s decision to the BIA, arguing that the IJ’s positive credibility finding was erroneous in light of the discrepancies between the 1994 and 2002 asylum applications. On October 14, 2004, the BIA issued its order sustaining the government’s appeal and vacating the IJ’s decision. The BIA held that the IJ’s credibility determination was “clearly erroneous” because of the inconsistencies between the 1994 application, the asylum officer’s 1995 interview notes and assessment memorandum, and Chen’s 2002 asylum application. The BIA rejected Chen’s explanations for the discrepancies between the applications. In light of its adverse credibility finding, the BIA held that Chen had failed to establish past persecution or a well-founded fear of future persecution and denied Chen’s claim for asylum. Since the BIA found that Chen had failed to satisfy his burden of proof on his asylum claim, the BIA held that Chen could not satisfy the higher burden of proof necessary to succeed on his withholding of removal claim, and denied that claim as well. The BIA also found that Chen had failed to establish eligibility for CAT relief, and ordered Chen removed to China. Chen timely filed a petition for review before this Court. DISCUSSION Standard of Review When the BIA issues an opinion that does not adopt the decision of the IJ to any extent, the BIA’s opinion “becomes the basis for judicial review of the decision of which the alien is complaining.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (citation omitted). We review factual findings, including adverse credibility determinations, under the substantial evidence standard, upholding them if they are supported by “reasonable, substantial and probative evidence in the record.” Id. (citation omitted). On the other hand, “if the issue on appeal involves the proper application of legal principles to the facts and circumstances of the individual case at hand, our review has been de novo.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d" }, { "docid": "23023752", "title": "", "text": "423 F.3d 1129, 1133 (9th Cir.2005). “If the trier of fact either does not believe the applicant or does not know what to believe, the applicant’s failure to corroborate testimony can be fatal to his asylum application.” Sidhu v. I.N.S., 220 F.3d 1085, 1090 (9th Cir.2000); see also Malhi v. I.N.S., 336 F.3d 989, 993 (9th Cir.2003). Here, because Cui filed his asylum application prior to May 11, 2005, the burden of proof provisions in the REAL ID Act of 2005 do not apply. Instead, “[w]hen the IJ denies asylum based ‘on an adverse credibility determination, he must provide specific, cogent reasons to support his determination ... [which] cannot be peripheral, but rather must go to the heart of petitioner’s claim.’ ” Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007) (quoting Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004)). In affirming the denial of relief in Don, we explained: Don’s inability to “state as to when it was that this man who was the source of him having to flee his country started to work for him” went to the heart of Don’s claim because it involved the very event upon which he predicated his claim for asylum. See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (explaining that inconsistencies in the details of events that form the basis for the asylum claim, specifically “testimony about the events leading up to [petitioner’s] departure,” go to the heart of the claim, and support an adverse credibility finding); see also Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir.2006) (affirming that “[a] single supported ground for an adverse credibility finding is sufficient if it relates to the basis for petitioner’s alleged fear of persecution and goes to the heart of the claim,” and “[a]n inconsistency goes to the heart of a claim if it concerns events central to petitioner’s version of why he was persecuted and fled”) (citations, alteration, and internal quotation marks omitted). 476 F.3d at 741-42. IV Cui’s allegations, if true, might render him eligible for asylum, but he has not demonstrated that the IJ’s credibility finding" }, { "docid": "22073611", "title": "", "text": "of his asylum application because it was not “directly related,” within the meaning of 8 C.F.R. § 1208.4(a)(5), to his failure to meet the deadline. In any event, according to the BIA, X.W. did not file his application within a reasonable time after joining the CDP in June 2007. The BIA also perceived no clear error in the IJ’s adverse credibility determination, noting that X.W.’s testimony was at times inconsistent, vague, and nonresponsive. Nonetheless assuming that X.W.’s testimony was credible, the BIA concluded that X.W. failed to meet his burden for asylum, withholding of removal, and CAT relief on the merits because he did not establish a well-founded fear of persecution based on his activities with the CDP. The BIA agreed with the IJ that X.W.’s activities were low-level, and that there was no evidence suggesting that Chinese authorities had knowledge of them. Y.C. and X.W. now petition this Court for review of the BIA’s decisions. DISCUSSION I. Legal Standards A.Standard of Review “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Jigme Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (internal quotation marks and brackets omitted). When the BIA does not expressly adopt the IJ’s decision, but “closely tracks the IJ’s reasoning,” we also may review both decisions. Id. We review the BIA’s “legal conclusions de novo, and its factual findings, including adverse credibility determinations, under the substantial evidence standard.” Shi Jie Ge v. Holder, 588 F.3d 90, 93-94 (2d Cir.2009) (citation omitted). We generally defer to the agency’s evaluation of the weight to be afforded an applicant’s documentary evidence. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006). Similarly, an applicant may be required to provide corroborating evidence to substantiate his or her claim or to explain why such documentation is unavailable, and an IJ may rely on the failure to submit such evidence in evaluating whether the applicant has met the relevant burden of proof. Kyaw Zwar Tun v. INS," }, { "docid": "22173773", "title": "", "text": "IJ’s reasons as the BIA’s” Wang He v. Ashcroft, 328 F.3d 593, 595-96 (9th Cir.2003) (citations omitted). Adverse credibility determinations are reviewed under the deferential substantial evidence standard. Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004). Nonetheless, the BIA and “the IJ must provide specific, cogent reasons for reaching an adverse credibility determination, and minor inconsistencies or factual omissions that do not go to the heart of the asylum claim are insufficient to support it.” Id. (citation omitted). “ ‘[Speculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence.’ ” Wenda Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.2004) (quoting Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000)). DISCUSSION The IJ’s adverse credibility finding was based solely on the INS Forensic Document Laboratory’s conclusion that the medical certificate submitted by Yeimane-Berhe was fraudulent. The IJ reasoned that Yeimane-Berhe was attempting to “bolster her asylum claim by the use of counterfeited documents,” rendering her not credible. The BIA similarly relied on the allegedly fraudulent document in affirming the IJ’s decision. The medical certificate deemed fraudulent by the INS is a certificate from the hospital where Yeimane-Berhe testified that she was treated, dated December 25, 1994. The certificate states that Yeimane-Berhe had bruises on her back and parts of her feet (ascribed to the torture), was raped, and had overdosed on Vermox. The doctor recommended “long rest” and that Yeimane-Berhe “[m]ust not go back to prison.” We have previously distinguished between fraudulent documents submitted, or statements made, to establish the critical elements of an asylum claim and those submitted or made in order to evade INS officials. Akinmade v. INS, 196 F.3d 951, 955-56 (9th Cir.1999). We held in Akinmade that the petitioner’s use of fraudulent documents to gain entry into the United States could not serve as a basis for an adverse credibility determination because the documents did not relate to the heart of his asylum claim but rather were incidental to the claim. Id. at 956. It does not follow from this holding, however, that the converse" }, { "docid": "21818846", "title": "", "text": "eligible for withholding of removal because withholding “has a higher burden of proof’ than asylum. Aguilar now petitions this court to review the BIA decision rejecting her withholding of removal claim. Again, she challenges the agency’s adverse credibility finding but also contends that, notwithstanding her credibility, the agency “failed to consider [her] well-documented claim of past persecution.” The government curiously responds to the first point but declines to argue the second, devoting the entirety of its brief to the credibility of Aguilar’s testimony. We now hold that, irrespective of the supportability of the adverse credibility finding, remand is required for the BIA to consider Aguilar’s potentially significant documentary evidence. II. As a preliminary matter, we must define the scope of our review. We consider BIA and IJ decisions together where the Board “adopt[s] and supplements]” the IJ’s reasoning. Martinez v. Holder, 734 F.3d 105, 111 n.15 (1st Cir. 2013) (citation omitted). In the present case, however, even assuming that the BIA adopted the IJ’s credibility ruling, it never acknowledged, much less adopted, the IJ’s separate analysis of the documentary evidence. We therefore train our focus on the BIA decision. See id. (focusing on BIA ruling where the Board “affirmed, but did not adopt, the decision of the IJ”). We review the BIA’s legal conclusions de novo and its findings of fact under the “substantial evidence” standard, meaning that we will not disturb such findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015) (citation omitted). In our review of the record, we note that while the BIA need not “discuss every piece of evidence offered,” it is “required to consider all relevant evidence in the record.” Lin v. Mukasey, 521 F.3d 22, 28 (1st Cir. 2008) (emphasis added). Consistent with this obligation, the Eleventh Circuit has specifically held that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence produced by” an applicant for relief. Hong Chen v. U.S. Att’y Gen., 231 Fed.Appx. 900, 902 (11th" } ]

[ { "docid": "3989160", "title": "", "text": "approaching $5 million. Nevertheless, the Court is not prepared to conclude to a legal certainty that plaintiff’s recovery, if the case went to trial, could not exceed $50,000. Accordingly, plaintiffs attack on the Court’s jurisdiction is rejected. Although the point has not been raised by the parties, the Court notes an additional question as to the existence of subject matter jurisdiction — the fact that the removal petition was filed more than thirty days after the service on Cunard by service on the Secretary of State. See 28 U.S.C. § 1446(b) (requiring removal within thirty days after receipt by the defendant of a copy of the initial pleading). The heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than the statutory agent. Compare, e.g., Skidaway Assoc., Ltd. v. Glens Falls Ins. Co., 738 F.Supp. 980 (D.S.C.1990); Farris v. Youngblood, 248 F.Supp. 598, 599 (E.D.Tenn.1965); Barber v. Willis, 246 F.Supp. 814, 815 (N.D.Ga.1965); Isbell v. Osgood, 234 F.Supp. 602, 603 (E.D.Okla.1964); Hall v. Bowman, 171 F.Supp. 454, 455 (E.D.Mo.1959); Mahony v. Witt Ice & Gas Co., 131 F.Supp. 564, 567 (W.D.Mo.1955) with Raymond’s, Inc. v. New Amsterdam Casualty Co., 159 F.Supp. 212, 214 (D.Mass.1956); Bohn v. Lester, 102 F.Supp. 261 (W.D.Mo.1952). This makes abundant sense, as the defendant’s right to a federal forum ought not to depend upon the rapidity and accuracy with which statutory agents inform their principals of the commencement of litigation against them. The notice of removal in this case alleges that this action was commenced by service on January 6, 1995. The Court takes that to be the earliest date upon which either of the defendants received a copy of the initial pleading and therefore concludes that the action was timely removed. Timeliness The one year contractual period of limitation is contemplated by federal statute, 46 U.S.C.App. § 183b, and enforceable if the carrier reasonably communicates the limitations period to the passenger. Spataro v. Kloster Cruise, Ltd., 894 F.2d 44, 45-46 (2d" } ]

[ { "docid": "13392508", "title": "", "text": "ORDER AND REASONS FELDMAN, District Judge. Plaintiffs originally filed this suit in state court alleging that their defendant-lessor delivered defective premises; plaintiffs complained that the construction of their premises exposed their bedroom to public view, violating their right to privacy in their home. On January 4, 1989, plaintiffs served Capital Realty Service, through its manager, with a copy of the state court petition. On March 22, 1989, approximately two and a half months later, defendant removed the suit to this Court. Plaintiffs now move to remand to state court. The motion asks the question: What event is necessary to trigger the start of the thirty day removal period? Plaintiffs contend that defendant’s removal petition was untimely. The removal statute, 28 U.S.C. § 1446, requires a defendant seeking removal to file a removal petition within thirty days of receiving the initial pleading from the plaintiff. Specifically, the statute provides: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b) (Emphasis added). Plaintiffs argue that the January 4 Service of process by the Orleans Parish Sheriff on the manager of Capital Service Realty triggered the thirty day removal period; they insist that this service comported with the “service or otherwise” language of 28 U.S.C. § 1446(b) because, although technically flawed in that the defendant’s official agent for service of process did not receive the petition, the service did provide notice of the suit to the defendant and triggered defendant’s act of removing the case. Plaintiffs therefore contend that the March 22, 1989 petition for removal was not filed within the thirty day mandated time period, that removal was improvident, and that the case should be remanded." }, { "docid": "17653095", "title": "", "text": "in relevant part that a defendant seeking to remove a case to federal court file its petition within thirty (30) days of the receipt of the initial pleading. Specifically, the statute provides: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b) (emphasis added). It is plaintiff’s position that the thirty-day removal period was triggered on September 15, 1986, when defendant received substituted service of process pursuant to Fla.Stat. §§ 48.161, 48.181 (1985). Plaintiff argues that such service comes within the meaning of the “service or otherwise” language of 28 U.S.C. § 1446(b). Therefore, according to plaintiff, the October 25, 1986, petition for removal was not filed within the statutory timeframe. Defendant counters that, although it was constructively served a copy of the complaint on September 15, 1986, the service was technically invalid under Florida law. Consequently, asserts defendant, the thirty-day period did not begin to run until its president was personally served with process on October 17, 1986; thus, its October 25, 1986, petition was filed well within the thirty-day window. In essence, defendant argues that under 28 U.S.C. § 1446(b), the thirty-day time period commences only upon proper service, notwithstanding the “service or otherwise” language. When the propriety of a party’s removal is challenged, the burden is on the removing party to show that the removal was proper. Miller v. Staufer Chemical Co., 527 F.Supp. 775, 777 (D.Kan.1981). It is axiomatic that a party seeking to remove a case must comply strictly with the statutory procedure for removal. Winters Government Securities v. NAFI Employees Credit Union, 449 F.Supp. 239, 241 (S.D.Fla.1978). The thirty-day removal period is mandatory, absent a waiver by the" }, { "docid": "11664398", "title": "", "text": "MEMORANDUM NEWCOMER, District Judge. Plaintiffs move for remand of this case to state court, arguing that defendants filed their petition for removal after the expiration of the mandatory time limitation contained in the removal statute, 28 U.S.C. § 1446. The issue for decision is whether the praecipe for a writ of summons and the summons used in Pennsylvania procedure are, when served together, an initial pleading for purposes of the removal statute such that receipt of them would start the time for filing a removal petition to run. Plaintiffs filed a praecipe for a writ of summons in the Court of Common Pleas of Philadelphia County on December 2, 1981, see Pa.R.Civ.P. 1007, and served the defendants by certified mail with copies of the praecipe and the summons. Lake Asbestos informs me that it received the praecipe and summons on December 9, 1981. On December 10, 1981, a rule was issued upon plaintiffs to file a complaint, see Pa.Civ.P. 1037(a). A complaint was filed on December 24, 1981, and served on defendants “on or about” January 6, 1982. All defendants joined in Lake Asbestos’s petition for removal filed January 25, 1982, nineteen days after the defendants received the complaint, and 47 days after Lake Asbestos received the praecipe and summons. Plaintiffs’ sole argument for remand is that the petition for remand was not timely filed. The relevant part of the removal statute is as follows: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a" }, { "docid": "17970898", "title": "", "text": "There are no submissions from the parties that suggest Defendant received the November 11, 2001 mailing from the Secretary of State. Plaintiff now claims that Defendant did not file a notice of removal within the thirty days required by 28 U.S.C. § 1446(b). Discussion For a foreign corporation to be authorized in New York, it must apply for such authority and designate “the secretary of state as its agent upon whom process against it may be served and the post office address within or without this state to which the secretary of state shall mail a copy of any process against it served upon him.” Bus. Corp. Law § 1304. Defendant in fact applied for authority in New York pursuant to Bus. Corp. Law § 1304 on October 9, 1997, was granted such authority, and designated the Secretary of State as the agent of the corporation for purposes of service of process. See Diamond Aff., Ex. F. Section 28 U.S.C. 1446(b) states: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has been filed in court and is not required to be served on defendant, whichever period is shorter. 28 U.S.C. § 1446(b). The critical issue here is whether Defendant filed a notice of removal within thirty days of “receipt” of the initial pleading through “service.” Id. Plaintiff claims that Defendant was served on November 11, 2001 when the Secretary of State mailed a copy of process to Defendant. See Diamond Aff., Ex. C. By eon- trast, Defendant claims that it was not served until January 9, 2002 when it received the complaint at its offices in Seattle, Washington. See Diamond Affi, Ex. H. If Defendant was served on November 11, 2001 or shortly thereafter, the January 29, 2002 notice of removal would be untimely and" }, { "docid": "18339706", "title": "", "text": "the case was dismissed. Id. at 686. The court cited a provision in Rule 5(A) of the Indiana Rules of Trial Procedure that excludes parties in default from the notice requirement unless the pleading asserts new or additional claims for relief. Id. Rather than supporting Price’s position, Lyerson thus confirms that parties not in default at the time of dismissal must be served with the motion for reinstatement. The record demonstrates that the defendants did not receive notice of the reinstated lawsuit until June 14, 2004, when they were served with process in the garnishment proceedings. They sought removal eight days later, well within the 30-day limit even when the 11 days from June 1993 are counted. Accordingly, removal was timely, and the district court properly denied the motion to remand. 2. The One-Year Removal Limit in Diversity Cases Price also seeks refuge in the one-year limitation found in the second paragraph of § 1446(b). Section 1446(b) provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. (Emphasis added.) Price claims that the emphasized language prevents removal in all diversity cases more than one year after the" }, { "docid": "12982008", "title": "", "text": "objection to a late petition for removal will therefore result in remand. Webster v. Dow United Tech. Composite Prods., Inc., 925 F.Supp. 727, 729 (M.D.Ala.1996) (internal citations omitted) (remanding case removed more than thirty days after complaint filed and more than thirty days after plaintiffs written responses to discovery revealed basis for federal jurisdiction). Accord, Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298, 1302-03 (M.D.Ala.2003) (granting motion to remand because defendant failed to remove case within thirty days of receipt of complaint from which it could have ascertained case was removable). Federal law limits the period in which a defendant may exercise his removal right from state to federal court. The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. § 1446(b) (emphasis added). In cases which initially involve multiple defendants who are served on different dates or in cases such as this one, where defendants are added more than thirty days after service on the originally named defendant, application of the timing requirements of 28 U.S.C. § 1446(b) presents a special problem. In such situations, courts must decide whether the thirty-days for removing the action commences once when the first-served defendant is served with the summons and complaint or whether each defendant gets a new thirty-day window for removing the case which commences when each defendant is served. The first" }, { "docid": "955287", "title": "", "text": "“[S]ection 1446(b), properly construed, requires service of process or substituted service under some appropriate rule or statute before the twenty (now thirty) day period starts to run.” Id. at 685. The only authority that no summons need be served is a case involving entry of judgment by confes sion where state procedural rules did not require original process. International Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1970). None of the cases usually cited for the proposition that the thirty-day period commences from the actual receipt by defendant of the initial pleading involve receipt of the complaint before service of process. Ardison v. Villa, 248 F.2d 226 (10th Cir. 1957) (when summons is served without complaint, statutory period does not begin to run from date of summons); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962) (time to file petition for removal dates from receipt of pleading, not from filing of return); Potter v. Khan, 108 F.Supp. 593 (S.D.N.Y.1952) (thirty-day period commences with receipt of complaint by mail, not from later date when service by publication complete where both methods of notice ordered by court). It follows from the above cases that the running of the thirty-day period commenced on October 16 when Seattle Bronze was served with process. Therefore, the petition for removal filed by Seattle Bronze was timely. It is clear that The Seagrave Corporation, which received a copy of the initial pleading through service on October 1, 1979 and which joined in the removal petition on November 15, 1979 exceeded the statutory period for filing for removal. The general rule is that all properly joined defendants, other than purely nominal or formal parties, over whom the court has acquired jurisdiction must join in the petition for removal. 14 Wright, Miller and Cooper § 3731 at 718-19. And each must file for removal within thirty days from the date on which that particular defendant was served. If the defendant who was served first fails to remove within thirty days, a subsequently served defendant may not remove even with the first defendant’s consent. Friedrich v. Whittaker Corp., 467 F.Supp." }, { "docid": "17970901", "title": "", "text": "process was effected on November 11, 2001 or soon thereafter even though Defendant did not receive the service of process until January 9, 2002. In general, this court has found that the “heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than by the statutory agent.” Cygielman v. Cunard Line Ltd., 890 F.Supp. 305, 307 (S.D.N.Y. 1995) (citing cases) (emphasis added); Medina, 945 F.Supp. at 520 (“That the New York Business Corporation Law recognizes service of process as being complete in civil actions brought against a corporation authorized to do business in the state once the Secretary of State has been served is not relevant to [the] question whether defendant’s notice of removal is timely.”). Moreover, the “defendant’s right to a federal forum ought not to depend upon the rapidity and accuracy with which statutory agents inform their principals of the commencement of litigation against them.” Cygielman, 890 F.Supp. at 307. See also Cancel v. Challenge Printing Company, 1996 WL 701022 (S.D.N.Y. 1996) (finding that the New York Secretary of State is considered a statutory agent for service of process purposes). If service of process is lost in the mail or is returned to the sender as a result of the Postal Service’s error, the intended recipient is not and should not be held responsible for the legal consequences, such as the operation of the thirty days in which a notice of removal must be filed, as if delivery and receipt had actually occurred at an earlier date. No case that we have found in this circuit has stated otherwise, nor do we see any compelling reason why such a rule should be adopted. Here, the parties’ submissions indicate that Defendant did not receive the summons and complaint mailed by the Secre tary of State on November 11, 2001 because of some error outside of Defendant’s control. Defendant states that it “has not maintained any office, facility, or employees in New York State since June" }, { "docid": "15486370", "title": "", "text": "served on July 8, 2002. Because the action was removed on July 22, 2002, less than 30 days later, the court held removal was timely and denied Sikirica’s motion to remand. The question is whether the 30-day period under 28 U.S.C. § 1446(b) began when Nationwide received the writ of summons or the complaint. Section 1446(b) contains two paragraphs governing when the 30-day period begins. The first paragraph provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b) (emphasis added). The second paragraph applies only if the initial pleading does not set forth the grounds for removal: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. Id. (emphasis added). Sikirica contends the phrase “other paper” in the second paragraph encompasses informal correspondence between the parties, such as the demand letter he sent to Nationwide on April 5, 2002. The complaint stated grounds for diversity jurisdiction, so the second paragraph does not apply if the complaint is the “initial pleading.” The “other paper” language of the second paragraph would apply only if the writ of summons could be considered the “initial pleading.” In Foster, this court considered the meaning of “initial pleading” in" }, { "docid": "11664399", "title": "", "text": "January 6, 1982. All defendants joined in Lake Asbestos’s petition for removal filed January 25, 1982, nineteen days after the defendants received the complaint, and 47 days after Lake Asbestos received the praecipe and summons. Plaintiffs’ sole argument for remand is that the petition for remand was not timely filed. The relevant part of the removal statute is as follows: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 28 U.S.C. § 1446(b). I note that the late Chief Judge Clary, when considering whether a summons in trespass was an “initial pleading” under the statute concluded that it was not “since the Pennsylvania Rules of Civil Procedure, 1017 . .. lists the pleadings allowed and motions and summonses are not listed.” Campbell v. Associated Press, 223 F.Supp. 151, 153 (E.D.Pa.1963). Although the adoption by Chief Judge Clary of Pennsylvania’s definition of a pleading is unexplained, it is clearly not unreasoned, and I reach the same conclusion. I do so for two reasons. First, I do not believe that the language of section 1446 permits the conclusion that the combination of a praecipe and summons is a pleading. Second, even if some praecipes and summons resemble pleadings I will not adopt a rule as porous as the one suggested by plaintiffs: that each summons and praecipe in" }, { "docid": "955284", "title": "", "text": "day prior to service on October 15. Both defendants joined in a petition for removal on November 15, 1979. 28 U.S.C. § 1446(b) specifies that “[t]he petition for removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” Plaintiff contends that the petition was not timely because it was filed 31 days after Seattle Bronze first received a copy of the pleading on October 15 and 45 days after Seagrave received its copy through service on October 1. It would appear that whether Seattle Bronze first received its copy of the initial pleading on October 15, as alleged by plaintiff, or on October 16, when officially served, would determine whether Seattle Bronze had filed a timely petition for removal because § 1446(b) speaks of receipt of the pleading “by service or otherwise.” However, the Court concludes on the basis of the reasoning in Potter v. McCauley, 186 F.Supp. 146 (D.Md. 1960) that whether Seattle Bronze had a copy of the pleading on the day before it was duly served is irrelevant. In McCauley, defendant had voluntarily accepted the complaint. The court held that voluntary acceptance of a complaint without service of process does not begin the running of the statutory period despite the language in § 1446(b) “through service or otherwise.” The court, in analyzing this phrase, reasoned that because receipt of a complaint is not always contemporaneous with service of process, a defendant may not receive the complaint until after the summons and that a defendant should not have to decide whether to petition for removal before he knows from the complaint what the suit is about. Therefore, the court concluded that the intent of Congress in using this phrase" }, { "docid": "6167053", "title": "", "text": "Wm. Moore, Moore’s Federal Practice § 0.168[3.-5-4] (2d ed.1996); Jean F. Rydstrom, Annotation, When Period for Filing Petition for Removal of Civil Action From State Court to Federal District Court Begins to Run Under 28 U.S.C. § 1446(b), 16 A.L.R.Fed. 287, 307-09 (1973). These commentators are in agreement that, as between actual receipt by the statutory agent and actual receipt by the defendant, the removal clock begins to run upon actual receipt by the defendant. Federal Practice & Procedure 2d at § 3732 nn. 9-11; Moore’s Federal Practice at § 0.168[3.-5-4]; 16 A.L.R.Fed. at 307. But none' consider the implications of the rule that service is eom-píete when the statutory agent deposits the process in the mail. Although there are at least six other states which have statutory agent/mailbox service laws similar to Nevada’s, there appear to be only three reported federal cases which explicitly consider the implications of such laws. In Masters v. Nationwide Mutual Fire Insurance Co., 858 F.Supp. 1184 (M.D.Fla.1994), the plaintiffs served a summons' and complaint on the Florida Insurance Commissioner on December 17,1993, who mailed the process on December 28, 1993; later that same day (December 28), the defendant received a copy of the complaint. The court noted that it seems illogical that delivery to an agent who derives his authority from a state statute is sufficient service when the same state statute provides the additional requirement that the summons and complaint be mailed by the agent to the person being served to start the time for pleading running. Id. at 1186. The Notice of Removal was therefore timely filed because the period “within which a Notice of Removal must be filed does not begin to run until after receipt by the Defendant through service and that would be when the summons and complaint was mailed by the Insurance Commissioner and Treasurer to the person being served.” Id. ■ Along similar lines, the court in Helgeson v. Barz, 89 F.Supp. 429, 432 (D.Minn.1950), ruled that when “the Commissioner of Highways was served herein he was acting as the designated agent of defendants for [that] express" }, { "docid": "6167054", "title": "", "text": "on December 17,1993, who mailed the process on December 28, 1993; later that same day (December 28), the defendant received a copy of the complaint. The court noted that it seems illogical that delivery to an agent who derives his authority from a state statute is sufficient service when the same state statute provides the additional requirement that the summons and complaint be mailed by the agent to the person being served to start the time for pleading running. Id. at 1186. The Notice of Removal was therefore timely filed because the period “within which a Notice of Removal must be filed does not begin to run until after receipt by the Defendant through service and that would be when the summons and complaint was mailed by the Insurance Commissioner and Treasurer to the person being served.” Id. ■ Along similar lines, the court in Helgeson v. Barz, 89 F.Supp. 429, 432 (D.Minn.1950), ruled that when “the Commissioner of Highways was served herein he was acting as the designated agent of defendants for [that] express purpose, and when he was served and the affidavit of service forwarded by plaintiffs as required by the statute, the twenty-day period began to run.” The court reasoned that the legislative history of the removal statute and its amendments evinced an intent by “Congress to carry out the ex pressed desire to make ‘uniform the time for filing petitions to remove all civil actions.’ ” Id. at 431 (quoting Revision Notes to 1948 Acts, Federal Civil Judicial Procedure and Rules, 28 U.S.C. § 1446 at 858 (West 1996)). As a result, if the removal clock started on the date of actual receipt by the defendants, “substituted” service on a statutory agent “would be effective on different dates, depending on the relative nearness or remoteness of the states wherein the different defendants may reside,” resulting in “much confusion.” Id. Consequently, the removal period started on January 2, 1950 (when the statutory agent mailed the process), not January 5, 1950 (when the defendants actually received the process), and the defendants’ removal notice, filed January 23, 1950, was" }, { "docid": "21974665", "title": "", "text": "F.Supp. 980, 982 (D.S.C.1990) (“The law appears to be settled that service on a statutory agent ... does not start the running of the removal statute time limitation period as would service on the defendant or an agent designated by the defendant”). One notable exception to the long line of opinions espousing the view that service upon a statutory agent is insufficient to begin the removal period is found in Bodden v. Union Oil Co. of Cal., 82 F.Supp.2d 584 (E.D.La.1998). In Bodden, as in this case, the defendants removed the action over thirty days beyond the time that their statutorily appointed agents were served with process, but within thirty days from the time that they received actual notice of the suit. Bodden, 82 F.Supp.2d at 585-86. The district court, while recognizing that its holding was in conflict with all other reported decisions on the issue, deter mined that calculating the removal period from the time of service on the statutory-agent was the proper rule for the following-reasons: In Louisiana, in cases in which service on the Secretary of State is authorized, service is completed when made on the Secretary of State regardless of when, or even whether the Secretary subsequently performs the ministerial task of forwarding notice to a defendant. By using the disjunctive “or” in stating that “[t]he notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, by service or otherwise,” the plain language of Section 1446(b) indicates that service itself may constitute “receipt by the defendant” and therefore may be the date on which the thirty-day period commences. Moreover, the policies ... underlying Section 1446(b) — uniformity and expediency — are best served by the interpretation which permits commencement of the thirty-day period on the date of formal service on the statutory agent of service rather than the date of actual receipt by the defendant. Commencement of the period at the time of service on the statutory agent rather than actual receipt better promotes uniformity by establishing a date certain upon which the period commences," }, { "docid": "5816678", "title": "", "text": "21, 1974 (ten months after the complaint was filed), before the state court had ruled on either party’s motion, the United States Attorney filed a petition pursuant to 28 U.S.C. § 1441 to remove the case to the United States District Court for the Western District of Kentucky, sending copies of the petition both to Wilson and the state court. In accordance with § 1446(e) of the removal statute, the state court issued an order staying all further state proceedings in the case. THE REMOVAL ISSUE The issue here is whether the Government filed the removal petition within the thirty day period set by statute. The removal statute provides, in part: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b) (emphasis added). Thus, the statute requires that the removal petition be filed within thirty days after the government receives, through service of process or otherwise, a summons or copy of the complaint. But before we determine whether and at what time service was completed, we must first decide what rules of procedure govern service of process in this case. The Food Stamp Act itself, which gives Wilson the right to bring this lawsuit, requires only that a copy of the summons and complaint be served upon the Secretary of Agriculture or his appointed delegate. Wilson has complied with this requirement by serving process upon Elmore, the director of the Atlanta FNS office, who is the Secretary’s appointed delegate to receive service of process in suits brought under the Food Stamp Act. The Act does not require that Wilson also comply with the Federal Rules of Civil Procedure regarding service of process. It does" }, { "docid": "12982009", "title": "", "text": "filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. § 1446(b) (emphasis added). In cases which initially involve multiple defendants who are served on different dates or in cases such as this one, where defendants are added more than thirty days after service on the originally named defendant, application of the timing requirements of 28 U.S.C. § 1446(b) presents a special problem. In such situations, courts must decide whether the thirty-days for removing the action commences once when the first-served defendant is served with the summons and complaint or whether each defendant gets a new thirty-day window for removing the case which commences when each defendant is served. The first approach is known as the “first-served defendant rule.” The second is known as the “last-served defendant rule.” The Circuit Courts of Appeals have split on which rule to adopt. The Eleventh Circuit Court of Appeals has not adopted either approach. District courts within the Eleventh Circuit Court of Appeals have not unanimously adopted one rule over the other. Prior decisions of the United States District Court for the Middle District of Alabama have clearly adopted the “first-served defendant rule” followed by the United States Court of Appeals for the Fifth Circuit and other courts. See, e.g., Jerrell, 348 F.Supp.2d at 1281 (McPherson, J.) (This district follows the “first served defendant rule.”); Jeffcoat v. American Gen. Life & Accident Ins. Co., Civil Action No. 01-D-325-N, 2001 WL 611196 at *2-*3 (M.D.Ala. May 16, 2001) (DeMent, J.) (adopting the “first-served rule” under which the thirty-day removal period begins to run for all defendants on the date the first defendant receives the initial complaint as set forth by Brown v. Demco, Inc., 792 F.2d 478 (5th Cir.1986)). Whatever" }, { "docid": "22865261", "title": "", "text": "required to petition for removal by May 25, thirty days after the first service on any of the defendants. Because he did not, and all served defendants must join in a petition for removal, the plaintiffs argue that the district court should have granted their motion to remand to state court. In rejecting that argument, the district court held that “under Section 1446(b), individual defendants have thirty days from the time they are served with process or with a complaint to join in an otherwise valid removal petition.” McKinney v. Board of Trustees of Mayland Community College, 713 F.Supp. 185, 190 (W.D.N.C.1989). Whether the thirty-day limit on removal to federal court begins to run with the first service when there are defendants served on different days is a question of first impression in the Fourth Circuit. In the district court’s words, “The issue is whether B has thirty days from the time he himself is served to join the removal petition, or must join within thirty days of A’s service.” Id. at 188. Here, “B” is defendant Smith and “A” is the group of three defendants who were served on April 25. We begin our analysis with the statutory language. Under 28 U.S.C. § 1446(b): The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading ... or within thirty days after the service of summons upon the defendant.... Section 1446(b) does not address multiple defendants. The district court, in analyzing the statutory language, stated: If anything, the use of the word “defendant”, singular, seems to refer to notice to the individual defendant, not defendants collectively, nor to whichever one happens to be served first. And Congress was quite capable of using the plural when that is what it meant, as it did in 1441(a)’s reference to “the defendant or defendants”. It is as if 1446(b) read, by ellipsis, “... receipt by the defendant in question ...”. It would be awkward, and stretching things, to read in “..." }, { "docid": "1923019", "title": "", "text": "MEMORANDUM ORDER RAKOFF, District Judge. On February 3, 2000, plaintiff commenced this suit in Supreme Court, Bronx County, N.Y., and on February 11, 2000 served a summons with notice on defendant (a foreign corporation authorized to do business in New York) by serving the Secretary of State of the State of New York. Defendant received the summons on February 16, 2000, and removed the action to this Court on March 16, 2000. Plaintiff then moved to remand, but, for the reasons given below, that motion is denied. Pursuant to 28 U.S.C. § 1446(b), a notice of removal must be filed in the district court within thirty days of receipt by defendant, “through service or otherwise,” of the initial pleading. Plaintiff contends that defendant’s notice of removal was not timely because it was filed more than thirty days after service of the summons on the Secretary of State. However, where service is made on a statutory agent such as the Secretary of State, a defendant’s time to remove runs, not from the date of service on the statutory agent, but from the date on which the defendant receives the notice that such service has been made. As summarized in Cygielman v. Cunard Line Ltd., 890 F.Supp. 305 (S.D.N.Y.1995) at 307: “The heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than the statutory agent .... This makes abundant sense, as the defendant’s right to a federal forum ought not to depend upon the rapidity and accuracy with which statutory agents inform their principals of the commencement of litigation against them.” Independently, plaintiff also seeks remand because defendant failed to notify the state court of the removal until April 21, 2000, in alleged violation of 28 U.S.C. § 1446(d), which requires that a party removing a case to federal court “promptly” file a copy of the notice of removal with the state court. See, e.g., Beleos v. Life and Casualty Insurance Co., 161 F.Supp. 627 (E.D.S.C.1956) (remanding" }, { "docid": "15486369", "title": "", "text": "contends Nationwide did not remove to federal court within 30 days of its receipt of service of process as required by 28 U.S.C. § 1446(b). This argument requires us to determine when the 30-day period for removal began. Sikirica demanded $300,000 in a letter to Nationwide dated April 5, 2002. The writ of summons informing Nationwide of the parties’ citizenship was served on Nationwide on April 29, 2002. Sikirica argues these two documents together constitute sufficient notice of diversity jurisdiction to trigger the 30-day period upon service of the writ of summons. If so, removal was untimely because Nationwide did not file a petition for removal until July 22, 2002, more than 30 days after the writ of summons was served. The District Court, relying on Foster v. Mutual Fire, Marine & Inland Insurance Co., 986 F.2d 48 (3d Cir.1993), held that the letter together with the writ of summons did not constitute notice of diversity jurisdiction. The District Court found Nationwide did not receive notice of diversity jurisdiction until the complaint was filed and served on July 8, 2002. Because the action was removed on July 22, 2002, less than 30 days later, the court held removal was timely and denied Sikirica’s motion to remand. The question is whether the 30-day period under 28 U.S.C. § 1446(b) began when Nationwide received the writ of summons or the complaint. Section 1446(b) contains two paragraphs governing when the 30-day period begins. The first paragraph provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b) (emphasis added). The second paragraph applies only if the initial pleading does not set forth the grounds for removal:" }, { "docid": "10984869", "title": "", "text": "serve the defendant with process. See 28 Fed.Proc., L.Ed. § 65:81 et seq. On February 18, 1986, after the complaint and summons reached an officer or authorized agent for service of process, American Express filed a motion to dismiss in the state court. American Express based its motion upon insufficient process, insufficient service of process, lack of personal jurisdiction and improper venue. On or about February 28, 1986, the plaintiff responded to the motion to dismiss by reissuing process. Service of process was accomplished on American Express on or about March 3, 1986, and made pursuant to Rule 4 of the Mississippi Rules of Civil Procedure by serving the U.S. Corporation Company, American Express’ authorized agent for service of process in Mississippi. On March 12, 1986, American Express removed this case to this Court. The time for filing a removal petition is set by 28 U.S.C. § 1446(b) which provides in pertinent part as follows: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action is based, or within thirty (30) days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. Id. (emphasis added). There have been two lines of cases which have interpreted the above emphasized language in Section 1446(b). The difference in interpretation stems from the ambiguous “or otherwise” portion of the statute. One line of cases interprets the “or otherwise” language to mean that receipt by the defendant of the pleadings is sufficient to begin the thirty day removal period, Tyler v. Prudential Ins. Co. of America, 524 F.Supp. 1211, 1213 (W.D.Pa.1981), while the second line of cases interprets the language to mean that proper service of process is required to begin the removal period. Love v. State Farm Mut. Auto. Ins. Co., 542 F.Supp. 65 (N.D.Ga.1982). It is clear, however," } ]

[ { "docid": "22037196", "title": "", "text": "securities. The decision not only disallowed these claims, but left the hank remediless, unless it should consent to allow a different reduction.5’ We think it perfectly clear that the policies did not belong to the partnership estate. 'They insured the life of J. M; Mer-tens, and were payable, one to him or his legal representatives, and the other to his wife or children, or to him In the event of their death before .his. And they had been assigned to the bank by him individually and the members of his -family, as early as March, 1901, as -collateral security, -as well as by the collateral notes before mentioned. The fact that Mertens individually -was the owner was in effect conceded, and the objections to .the -Claims raised no issue in regard -to it. That the partnership on.-some' occasion may have pledged the policies in conjunction with Mertens’ separate individual pledge had no special significance. The notes provided that the holder might apply the proceeds of a sale to “pay one, or more, or all. of the liabilities due it, as it shall -deem proper, whether due or not.” And it had the right according to the settled rule in equity and in courts of bankruptcy to apply the proceeds of the collateral in extinction of the individual debts. If the sale was a good and valid sale and the value of the policies was properly liquidated thereby, and applied on the individual indebtedness, it follows that the.claim against the partnership should have been allowed in full. And also the claim against the individual estate of Mertens for the balance, after deducting the $10,250 and the $6,000. The contracts of pledge were made, executed and- to be performed in the State of New York, and the rights of the parties were governed by the law of that State. No preference under the bankruptcy act was alleged or proved, nor was there any allegation or proof that th¿ pledge of the securities was in fraud of the rights of the creditors or trustee. The questions of the .extent and validity of the" } ]

[ { "docid": "6405172", "title": "", "text": "into, the Ajax Company declared and paid a dividend on the stock in question in the sum of $7 per share, or $2S,000. The check for the dividend was made payable to the Petitioner, as she was the owner of record of the shares of stock. The check was then turned over to DeGuire, who had it certified and sent it by letter to the Harris Trust and Savings Bank in which he stated: “Attached hereto find checks in payment of principal and interest.” The check was applied to the payment of the notes, then forwarded to the Petitioner by the Bank as payment received on the stock pursuant to the agreement, and then the Petitioner endorsed the check and deposited it to her account. This check paid the first and second notes, and released the stock certificate for 1,332 shares and one for 667 shares, which were attached to the respective notes. The certificates of stock were then turned in to the Ajax Company, and it issued new certificates to Helen A. DeGuire. On June 27, 1936, DeGuire wrote a letter to the Harris Trust and Savings Bank, which contained his understanding of the nature of the transaction between the parties : “With reference to Escrow Agreement No. 6489 dated January 16, 1936, between the writer, Mrs. Moore, Mr. Bosworth and your bank, in connection with certain notes which you are holding for collection and against which stock of the Ajax Hand Brake Company is pledged as collateral.” The Respondent contends that this transaction was no sale, that it was an option to purchase granted ' to DeGuire; that Petitioner remained the owner of the stock at the time the dividend was declared, and was therefore owner of the dividend as such and properly taxed therefor as income. The Petitioner contends there was a sale and the stock was held to secure the balance of the purchase price, and the title passed to DeGuire; that even if title had not passed, the beneficial interest of the stock was in DeGuire, and the Petitioner is not liable for the tax." }, { "docid": "23666962", "title": "", "text": "or consent. Miramon maintains that his misconduct, if any, may give rise to a state law claim for breach of fiduciary duty, but is not a violation of Rule 10b-5. Miramon argues, therefore, that the district court lacked subject matter jurisdiction in this case. Alley’s position is that the transfer of his shares to Miramon was a pledge. Miramon converted the shares when he transferred them from Alley’s name to his name. The liquidation that followed the conversion of the 200 shares, says Alley, constituted a sale of securities under Rule 10b-5. As support for his argument that a sale of securities occurred, Alley cites recent decisions of this Court dealing with the standing of pledgors and pledgees of securities to sue for damages under Rule 10b-5. See, e. g., National Bank of Commerce v. All American Assurance Co., 5 Cir. 1978, 583 F.2d 1295; McClure v. First National Bank, 5 Cir. 1974, 497 F.2d 490, cert. denied, 1975, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402. In McClure, the plaintiff pledged stock in a corporation to a bank in consideration for the bank’s renewal of a loan to the corporation. When the corporation defaulted on its note to the bank, the bank foreclosed on the corporation’s land and the plaintiff's stock became worthless. The bank never foreclosed on the pledged shares. The plaintiff sued the pledgee bank, and others, alleging that her pledge constituted a fraudulently induced sale under Rule 10b-5. This Court held that the plaintiff did not have standing to sue. The “mere acceptance of a stock pledge as collateral in a privately negotiated transaction between borrower and lender does not, of itself, bring within the scope of the federal securities acts a transaction otherwise outside their purview”. 497 F.2d at 495. That a pledge does not pass title to the securities was of critical importance to the Court. Id. at 495-96. McClure held that when a debt secured by pledged securities is a default and the pledgee bank forecloses on the pledged shares, a sale is consummated and the pledgee bank might be subjected to" }, { "docid": "22420407", "title": "", "text": "“with such ‘constructive’ possession by a secured creditor as is not kept obvious to a third party.” 9 U.L.A., 1942, 665, 670. Here possession by a secured creditor was kept obvious for the benefit of both secured claims. Hence the pledge to defendant was perfected long prior to the four months’ period and cannot now be avoided as a preference under Bankruptcy Act, § 60. This also disposes of the claim of fraudulent transfer under § 67. We come then to a consideration of the validity of the attempted sale by defendant of the pledged securities to itself on June 10, 1939, at a price of around half their face value. We realize, as Judge L. Hand has pointed out in In re Hudson River Nav. Corp., 2 Cir., 57 F.2d 175, that interference with the pledgee’s power of sale is generally unwise. For in many situations, especially those involving pledged shares with stock exchange brokers, where collateral fluctuates from hour to hour, delay may render the pledgee’s security worthless. Rapkin, Power of Courts to Restrain Sale of Pledged Collateral, 21 Marq. L.Rev. 195, 197. Nevertheless, however broad the power of sale, the pledgee cannot “sacrifice the property wantonly” or purchase “at a valuation so inadequate as to suggest a fraudulent purpose.” Hiscock v. Varick Bank of New York, 206 U.S. 28, 38, 39, 27 S.Ct. 681, 684, 51 L.Ed. 945; Buder v. New York Trust Co., 2 Cir., 82 F.2d 168, 170, 104 A.L.R. 1035. After all, he is a form of fiduciary and his conduct must stand the scrutiny of a court of equity. Toplitz v. Bauer, 161 N.Y. 325, 332, 55 N.E. 1059; Gillet v. Bank of America, 160 N.Y. 549, 560, 55 N.E. 292. The circumstances of the present sale show an utter disregard of the interests of others, particularly the pledgor’s creditors, whose interest was then well known to defendant. The sale was essentially a secret one as to those presently interested, held in the office of defendant’s own counsel, with no attempt to get in outside bidders or to obtain a fair price for" }, { "docid": "5322206", "title": "", "text": "to obtain payment which could not otherwise be done, but not as conferring a power to bestow a greater right upon the purchaser with full notice of the facts and circumstances and the extent to which the bank could enforce the obligation than the bank would have had in case of foreclosure. The case loses much strength as an authority herein because it expressly recognizes that corporate bonds are upon a different footing from promissory notes, secured by trust deeds, given as collateral. Inasmuch as the contract involved herein was not in itself invalid, its provisions became enforceable unless it appears that, in the manner of enforcement, some wrong was done to the steel corporation. Of course the power of sale must have been fairly exercised; but, if it was pursued under the letter as well as the true spirit of the contract, there can be no conclusion of unfairness or of sacrifice of the equity of the pledgor. The terms of an agreement of pledge may be severe; but, if they are complied with, it is but carrying out the intention of the parties. The notice sent on August 1, 1911, by the Metropolitan Trust Company to the Western Steel Corporation made it perfectly plain that unless the note of the corporation was paid on or before Monday, August 28th, the securities would be sold at public auction on Wednesday, August 30th. This gave the steel corporation more than three weeks’ time within which to perfect an expected “arrangement” whereby they would take up the note in full before sale of the securities. But they failed to do' anything. Then the pledgee, as authorized by the contract, proceeded to sell at public sale after notice published in those New York papers customarily used by pledgees in New York to give notice of sales of pledged col lateral. The sale was made at a regular weekly auction in salesrooms in New York where buyers of securities congregate; the auctioneers who conducted th§ sale were well known as carrying on a large business in selling stocks and bonds; the salesrooms were" }, { "docid": "23666963", "title": "", "text": "a corporation to a bank in consideration for the bank’s renewal of a loan to the corporation. When the corporation defaulted on its note to the bank, the bank foreclosed on the corporation’s land and the plaintiff's stock became worthless. The bank never foreclosed on the pledged shares. The plaintiff sued the pledgee bank, and others, alleging that her pledge constituted a fraudulently induced sale under Rule 10b-5. This Court held that the plaintiff did not have standing to sue. The “mere acceptance of a stock pledge as collateral in a privately negotiated transaction between borrower and lender does not, of itself, bring within the scope of the federal securities acts a transaction otherwise outside their purview”. 497 F.2d at 495. That a pledge does not pass title to the securities was of critical importance to the Court. Id. at 495-96. McClure held that when a debt secured by pledged securities is a default and the pledgee bank forecloses on the pledged shares, a sale is consummated and the pledgee bank might be subjected to liability in connection with the sale if it does not meet the anti-fraud provisions of the securities acts. Id. Although some, courts have not been persuaded by the logic of McClure, this Court continues to apply the rule that a mere pledge of securities as collateral for a loan is not a sale under Rule 10b-5. See National Bank of Commerce v. All American Assurance Co., 5 Cir. 1978, 583 F.2d 1295, 1298-1300. Alley admits that under the McClure rule, the mere transfer of his shares to Miramon with the understanding that the shares would be pledged does not accord him standing to sue. He argues, however, that the corporate liquidation that followed the transfer to Miramon, was analogous to a foreclosure of pledged securities and constituted a sale under McClure. Alley’s analogy is appealing, but it rests on a faulty premise. To be a seller under McClure, Alley necessarily must have been a pledgor of securities. The Louisiana Civil Code defines a pledge as “a contract by which one debtor gives something to his" }, { "docid": "18534857", "title": "", "text": "Rule’ ”). In holding that the deposit of stock in an indemnity action trust constituted a purchase by the trust, the American Continental case stated: Although we find no case with facts directly on point, we take guidance from the various transactions that have been held to constitute a purchase and sale. For instance, in Rubin v. United States, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981), the Supreme Court held that a pledge of stock to a bank as collateral for a loan constituted a “sale” for purposes of Section 2(3) of the Securities Act of 1933. The Rubin Court reasoned that the economic considerations and realities present when a lender parts with value and accepts securities as collateral security for a loan are similar in important respects to the risk an investor undertakes when purchasing shares. Both are relying on the value of the securities themselves, and both must be able to depend on the representations made by the transferor of the securities.... Id., 449 U.S. at 431, 101 S.Ct. at 702. Accordingly, this court has applied Rubin and Weaver to hold that a pledge of securities to secure a margin brokerage account constituted a “purchase and sale” for the purpose of Section 10(b) and Rule 10b-5. United States v. Kendrick, 692 F.2d 1262, 1265 (9th Cir.1982), cert. denied, 461 U.S. 914, 103 S.Ct. 1892, 77 L.Ed.2d 282 (1983). See also Harmsen v. Smith, 693 F.2d 932, 947 (9th Cir.1982), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983). 49 F.3d at 543. Mallis et al. v. Federal Deposit Insurance Corp., 568 F.2d 824, 828 (2d Cir.1977), also held that a pledge of stock was a sale. The court referred to and cited from United States v. Gentile, 530 F.2d 461 (2d Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976), which stated “In effect, the pledgee assumes a very real investment risk that the pledged securities will have continuing value, a risk that is identical in nature to the risk taken by investors which serves as the indisputable" }, { "docid": "10400814", "title": "", "text": "securities through an exchange. But what the firm might have done is not material. It did resort to a method of disposal which in fact required that the securities be submitted and sold to its customers in the ordinary course of its dealer business. Palos Verdes Corp. v. United States, (C. A. 9) 201 F. 2d 256, 259. We have therefore found as a fact that at the time of their sale the securities were held for sale to customers in the ordinary course of the firm’s trade or business. Cf. Pacific Affiliate, Inc., supra, 18 T. C. at p. 1214, where capital gain treatment was not accorded to securities originally held for investment but later “appropriated to retail distribution and sale.” Our finding that the securities were not “capital assets” as defined by section 117 (a) (1) eliminates the necessity of determining whether the securities were “held for more than 6 months” within the purview of section 117 (a) (4). Issue II. Petitioner loaned Briley $57,500 in 1942. All of the stock of Mobile Homes, Inc., was pledged as collateral on the note except 875 preferred shares which petitioner received outright as compensation for making the loan. To make the loan petitioner borrowed $57,500 from the American National Bank on his own note, pledging as collateral Briley’s note and the collateral thereon. In August of 1943 Mobile Homes, Inc., had become insolvent and Briley’s note was virtually worthless. In order to evidence a bad debt loss, petitioner induced the bank to accept Briley’s 90-day note in place of his own, and he signed the- note as an accommodation endorser. When the note became due, the bank demanded payment of Briley and he failed to pay. The Mobile Homes, Inc., stock held as collateral was purchased by petitioner at public auction for $1,000. Petitioner paid the bank $53,000 and the bank released him from his liability as endorser. This left the bank with Briley’s unsecured note with an unpaid balance of $3,500. Petitioner deducted the $53,000 paid to the bank on his return for the year 1943. Petitioner contends that" }, { "docid": "15495326", "title": "", "text": "collateral for a loan evidenced by a promissory note does not constitute a purchase within the meaning of the securities acts. Reid v. Hughes, 578 F.2d 634, 638 (5th Cir. 1978). The Court said: While it may be true that in certain situations a certificate of deposit can be a security as that term is used in the Act, there is absolutely no support for the proposition that a mere pledge of a security in circumstances such as those alleged here would constitute a purchase or sale thereof within the meaning of Section 10(b) and Rule 10b — 5. See McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490, 495 (5th Cir. 1974). Although the Reid opinion did not develop the point, other Fifth Circuit decisions support the holding. Herpich v. Wallace, 430 F.2d 792 (5th Cir. 1970); McClure v. First National Bank, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975). In count three of Herpich, this Court held that a corporate guarantor of a pledgor is not engaged in a “purchase” of stock. The decision was based upon the rationale that a transaction which is, in effect, an extension of credit on the pledgor’s behalf “is not the type of fraudulent conduct which was meant to be forbidden . . . .” 430 F.2d at 812. McClure involved a pledge of stock in consideration for the renewal of a loan to a third party. .The complaint was brought by the pledgor. This Court held that the pledge of securities did not constitute a “purchase.” National Bank makes much of the Court’s remark in McClure that “[w]e do not doubt that a pledge of securities can constitute a ‘sale’ in some cases . . .,” 497 F.2d at 495, and seeks to limit the case to plaintiff’s particular circumstances. The significant circumstances of McClure, the absence of foreclosure by the pledgee bank and the retention of title to the stock by the pled-gor, are identical with those of the instant case. Plaintiff would have us distinguish McClure, Bellah," }, { "docid": "22205017", "title": "", "text": "of 1933. There an individual caused a corporation he controlled to purchase from Guild Films unregistered stock in that company. He purported to take the stock for investment only, and a restriction to this effect was stamped on the certificates. Subsequently, this individual caused the stock to be pledged to certain banks as additional collateral for his already overdue personal notes. Upon his default, the banks attempted to sell the unregistered stock. The SEC then sought to enjoin the sale by the banks. Concluding that the banks were “underwriters” within the meaning of section 2(11) of the Securities Act, the Second Circuit stated: “The banks cannot be exempted on the ground that they did not ‘purchase’ within the meaning of § 2(11). The term, although not defined in the [Securities] Act, should be interpreted in a manner complementary to ‘sale’ which is defined in § 2(3) as including ‘every * * * disposition of * * * a security or interest in a security, for value * * In fact, a proposed provision of the Act which expressly exempted sales ‘by or for the account of a pledge holder or mortgage selling or offering for sale or delivery in the ordinary course of business and not for the purpose of avoiding the provisions cf the Act, to liquidate a bona fide debt, a security pledged in good faith as collateral for such debt,’ was not accepted by Congress.” 279 F.2d at 489 (citations omitted). Guild Films is factually distinguishable in material respects from the situation alleged in count three. Here, there is no allegation that the loan has been defaulted or that foreclosure on the pledged stock has become necessary. It is not alleged that National American has paid anything for the purported interest in Latta’s securities it holds. Moreover, it is not alleged that National American was the pledgee; rather, the corporation was the guarantor of the pledgor. Apart from these distinctions, whatever the term “sale” means in section 2(11) of the Securities Act, we are here concerned only with whether the purposes of section 10(b) of the Exchange" }, { "docid": "4249258", "title": "", "text": "941; Cadwalader’s Appeal, 64 Pa. 293; Sitgreaves v. F. & M. Bank, 49 Pa. 359; Hiscock v. Bank, 206 U. S. 28, 27 Sup. Ct. 681, 51 L. Ed. 945. Applying this principle to the facts of the case, as did the trial judge, we cannot say that he committed error in finding the sale invalid. But aside from the finding of illegality in the sale, broadly made by the learned district judge, and without regard to bad faith in the whole transaction of sale, we note that Markell’s purchase of collateral pledged under the second note was illegal because made without authority. As we have said, that note gave the purchaser no right to bid and buy at his own sale. The law is settled that to exercise such a right it must be granted by the note in plain terms, McManus v. Sweatnam, 42 Leg. Int. (Pa.) 387; In re Mertens, 144 Fed. 818, 75 C. C. A. 548, appeal affirmed. See Hiscock v. Bank, 206 U. S. 28, 27 Sup. Ct. 681, 51 L. Ed. 945; Storey on Bailments, 319; or the holder must pursue an appropriate remedy at law, or in equity. Hartman, supra. The collateral Markell purchased without authority at the sale under the second note was of a value more than sufficient to offset his claim of $19,600. Doubtless he realised the effect of this, and, in an effort to treat this collateral as though sold under the power of the first note, he now places reliance on the last paragraph of the second note, which states that “the bonds (here pledged) are to be held also as additional collateral on note of July 2, 1913, for $50,000” — the first note. But this provision does not help him because it does not pledge the collateral of the second note under the power of sale of the first note, with the right given the holder to purchase at his sale. It was a pledge of collateral on the first note subordinate to the primary pledge on the second. The collateral under the second note" }, { "docid": "23624366", "title": "", "text": "S.Ct. 295, 17 L.Ed.2d 214 (1966) (factor selling pledged stock not a “broker” or “dealer”). If the bank sells stock pledged as loan collateral, it might than be subjected to liability in connection with the sale if it does not meet the requirements of the anti-fraud provisions of the securities acts, but mere acceptance of a stock pledge as collateral in a privately negotiated transaction between borrower and lender does not, of itself, bring within the scope of the federal securities acts a transaction otherwise outside their purview. See 1 L. Loss, Securities Regulation 649 (2d ed. 1961). The cases relied upon by Mrs. McClure, SEC v. Guild Films Co., 279 F.2d 485 (2d Cir.), cert. denied, 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960); SEC v. Pig’n Whistle Corp., 359 F.Supp. 219 (N.D.Ill.1973); SEC v. National Bankers Life Insurance Co., 334 F.Supp. 444 (N.D.Tex.1971), aff’d, 477 F.2d 920 (5th Cir. 1973); and American Bank & Trust Co. v. Joste, 323 F.Supp. 843 (W.D.La.1970), do not mandate a contrary conclusion. Except for joste, these eases involved the question of whether a pledge of unregistered stock is a sale for purposes of section 5 of the Securities Act of 1933, 15 U.S.C.A. § 77e. In the framework of that section, the pledge of unregistered stock as loan collateral is a “sale” because it causes the bank to become an “underwriter” when it forecloses and sells the unregistered securities. SEC v. National Bankers Life Insurance Co., 324 F.Supp. 189, 194 (N.D.Tex.), aff’d mem., 448 F.2d 652 (5th Cir. 1971). See also 1 L. Loss, Securities Regulation 645-651 (2d ed. 1961). In this context, it is significant that, unlike the case at bar, each of the section 5 cases involved sale of the pledged stock by the pledgee after the pledgor defaulted. Joste, too, although an action brought under an anti-fraud provision of the 1933 Act, 15 U.S.C.A. § 77l, is distinguishable on the ground that the bank therein sold the pledged stock upon default. On the other hand, in this case the Bank did not foreclose on Mrs. McClure’s pledged" }, { "docid": "13923799", "title": "", "text": "lawyer was the nominal purchaser, the dentists furnished all the money and are the ones who are “out of pocket” on the transaction. Regardless of the resolution of the latter issue, the fraud in Mallis was “in connection with the . . . sale of [a] security” whereas the very question which must be answered in the present case is whether there was a “sale” at all. In rejecting the approach of the Second Circuit, we agree with the Fifth Circuit’s position in National Bank of Commerce of Dallas v. All American Assurance Co., 583 F.2d 1295 (5th Cir. 1978), and McClure v. First National Bank of Lubbock, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), that a “sale” of the securities does not occur at the time the securities are pledged. It is possible that a sale may occur at a later point if the pledgee in fact forecloses on the stock after default on the loan, for then title actually passes and the pledgee becomes an unwilling purchaser of the stock. We do not address the question of whether a “purchase” takes place upon foreclosure, however, for here there has been no foreclosure, and we decline to adopt the district court’s doctrine of “constructive foreclosure.” See 414 F.Supp. at 1278. State Regulation of Secured Transactions Involving Securities Collateral The final consideration counselling against extension of the antifraud provisions of the 1933 and 1934 Acts to the situation where securities are fraudulently pledged as collateral for a bank loan is that state law already extensively occupies the field. This would be a further indication that Congress never intended to extend the antifraud provisions to pledge transactions as well as a sound policy reason not to extend the federal securities laws into this area, as there is no apparent need. Article 9 of the Uniform Commercial Code, adopted in Illinois, regulates secured transactions, including those involving securities collateral. See UCC §§ 9-102(l)(a) (Article applies to security interests in “instruments”) and 9-105(l)(i) (“instrument” includes a security). Among other provisions, Article 9" }, { "docid": "22205016", "title": "", "text": "a purchase by it of securities. The allegations from which plaintiffs claim a securities purchase by National American should be gleaned are as follows: Latta borrowed money from an unnamed person in order to purchase Dawl stock and caused National American to guarantee this loan; Latta then pledged the Dawl stock he had purchased as security for the loan; subsequently, Latta exchanged his Dawl stock for First Colonial stock and caused National American to agree to a substitution of the First Colonial stock for the Dawl stock as security for the loan, even though the First Colonial stock was not worth the amount owed on the, loan. Plaintiffs’ position, apparently, is that National American, by virtue of its role as the guarantor of the loan to Latta, became a “purchaser” of securities when Latta pledged the stock he bought as col lateral for the loan. Plaintiffs base their argument upon the Second Circuit’s decision in SEC v. Guild Films Co., 2 Cir., 1960, 279 F.2d 485. The Guild Films case arose under the Securities Act of 1933. There an individual caused a corporation he controlled to purchase from Guild Films unregistered stock in that company. He purported to take the stock for investment only, and a restriction to this effect was stamped on the certificates. Subsequently, this individual caused the stock to be pledged to certain banks as additional collateral for his already overdue personal notes. Upon his default, the banks attempted to sell the unregistered stock. The SEC then sought to enjoin the sale by the banks. Concluding that the banks were “underwriters” within the meaning of section 2(11) of the Securities Act, the Second Circuit stated: “The banks cannot be exempted on the ground that they did not ‘purchase’ within the meaning of § 2(11). The term, although not defined in the [Securities] Act, should be interpreted in a manner complementary to ‘sale’ which is defined in § 2(3) as including ‘every * * * disposition of * * * a security or interest in a security, for value * * In fact, a proposed provision of the" }, { "docid": "23624367", "title": "", "text": "these eases involved the question of whether a pledge of unregistered stock is a sale for purposes of section 5 of the Securities Act of 1933, 15 U.S.C.A. § 77e. In the framework of that section, the pledge of unregistered stock as loan collateral is a “sale” because it causes the bank to become an “underwriter” when it forecloses and sells the unregistered securities. SEC v. National Bankers Life Insurance Co., 324 F.Supp. 189, 194 (N.D.Tex.), aff’d mem., 448 F.2d 652 (5th Cir. 1971). See also 1 L. Loss, Securities Regulation 645-651 (2d ed. 1961). In this context, it is significant that, unlike the case at bar, each of the section 5 cases involved sale of the pledged stock by the pledgee after the pledgor defaulted. Joste, too, although an action brought under an anti-fraud provision of the 1933 Act, 15 U.S.C.A. § 77l, is distinguishable on the ground that the bank therein sold the pledged stock upon default. On the other hand, in this case the Bank did not foreclose on Mrs. McClure’s pledged stock and did not sell it. Title to it remains in Mrs. McClure. Under these circumstances, her pledge did not constitute a “sale” of her stock within the meaning of section 10(b) of the 1934 Act and of Rule 10b-5. Cf. Herpich v. Wallace, 430 F.2d 792, 812 (5th Cir. 1970) (guarantor of pledgor not “purchaser” of pledged stock where inter alia no allegation of foreclosure). Affirmed. . A number of the note cases were decided under the Securities Act of 1933, 15 U.S.C.A. § 77a et seq., rather than under Mrs. McClure’s asserted jurisdictional predicate, the Securities Exchange Act of 1934. For present purposes the distinction is of little moment. In spite of occasional differences in wording, the definitions of “security” in the two Acts are functionally equivalent. See Tcherepnin v. Knight, 389 U.S. 332, 335-336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). See also 2 L. Loss, Securities Regulation 795-796 (2d ed. 1961); 5 id., 2729 (Supp.1969). . The two factors identified here are not necessarily the only ones appropriate for consideration. See" }, { "docid": "20107628", "title": "", "text": "corporation and the subsequent liquidation of the corporation’s assets into a partnership that could be formed by both petitioners to proceed with the cattle-feeding operations. Petitioners were advised of the tax consequences of an installment sale election under section 453. Formation of Queen Feeding & Livestock Co. At the December 17, 1971, meeting, and in accordance with the discussions during that meeting, Packard purchased, for $350,000, 1,000 shares of common stock of Queen Feeding & Livestock Co. (Queen), a Delaware corporation organized on December 14, 1971. Queen’s stated purpose was to engage in feeding livestock. Although Packard was the sole shareholder of Queen, petitioners considered the investment in the cattle-feeding program a joint investment. Packard paid for the Queen stock in part with two checks totaling $140,000 from an account held jointly with Wainwright at Suburban Trust Co. of Wheaton, Maryland. Packard paid the balance of the purchase price with a $210,000 check dated December 17, 1971, drawn from a new account at ONB. The source of the funds in the ONB account was a loan to Packard from ONB arranged by Cornwall and Zimmerman. The loan was evidenced by a demand note executed by Packard, dated December 17, 1971, in the principal amount of $210,000, with interest at a rate of 7% percent per annum. The note was presented to Packard by Blackman and signed in his office during the December 17, 1971, meeting. The note contained the following provision regarding collateral: 3. To secure the payment of this note and all other indebtedness or liability, direct or indirect, joint or several, absolute or contingent, now existing or hereafter acquired or contracted, of Borrower to Bank (hereinafter collectively designated \"Obligations”), whether such Obligations are created directly or acquired by Bank by assignment or otherwise, Borrower hereby pledges to Bank and grants to Bank a security interest under the Uniform Commercial Code in the following described property (hereinafter collectively designated \"Collateral”) [Blank lines] and all property listed on the back hereof and all other property now or hereafter in the possession or control of Bank. Borrower agrees to deliver to" }, { "docid": "15495332", "title": "", "text": "pledge transaction and a sale and purchase. If it had intended to cover both, it could have easily done so by words traditionally used to differentiate between the two. The holding that the mere pledge of a security as collateral for a loan does not constitute a sale or purchase of a security within the meaning of the federal securities laws appears sound. The federal securities acts are designed to protect investors. This purpose is not affected by a pledge of stock. As Professor Loss has stated, “federal legislation was hardly needed for privately negotiated pledge transactions between borrowers and lenders.” L. Loss, Securities Regulation 649 (2d ed. 1961). The pledgee, unlike a securities purchaser, has a remedy on the note itself against makers and guarantors. The rights and privileges of the parties are not affected by a pledge in the same manner as by a “sale” or “purchase.” The pledgor generally (1) has the right to sell the stock subject to the security interest, (2) is entitled to vote the stock, (3) has the right to receive all dividends, and (4) continues to be liable for ad valorem taxes. See generally, L. Jones, Collateral Securities and Pledges §§ 1, 176a, 441, 602 (3d ed. 1912). The pledgee, on the other hand, has “no general property right in the thing pledged, but only a right, upon default, to sell in satisfaction of the pledgor’s obligation.” Pauly v. State Loan & Trust Co., 165 U.S. 606, 622, 17 S.Ct. 465, 471, 41 L.Ed. 844 (1897). The pledgee does not participate in any appreciation of the stock, has none of the rights normally accorded shareholders, and has no right to sell the collateral for its own account. Indeed, its relationship is of a fiduciary character, Easton v. German-American Bank, 127 U.S. 532, 537, 8 S.Ct. 1297, 32 L.Ed. 210 (1888), and it must account for all proceeds in excess of the debt and profits accruing as a result of possession of the collateral. Restatement of Security § 27 (1941). Pretextual collateral loans or instances where the ownership of the security is intended" }, { "docid": "21345096", "title": "", "text": "he delivered said certificate as security against purchases of stock to be made for his account by the bankrupt. He alleges that no purchases were made, although purported transactions were charged to his account which were without foundation in fact. “Second: That his collateral, consisting of the aforementioned 100 shares of Stone & Webster stock, was immediately hypothecated by the bankrupt. “Third: That, on or about March 31, 1931, said certificate, still registered in petitioner’s name and identifiable as his own, was delivered to the Peoples Investment Company, a holding corporation for Paul E. Williams Co. of Washington, and others. “Fourth: That said Peoples Investment Company pledged said certificate, with others, as collateral on a loan made to them by the American Exchange Bank of Seattle; that, on or about April 13,1931, said collateral, including petitioner’s, was sold by the bank and tne proceeds applied to the payment of the loan against them; that the full sale price of said securities was $12,048.68; after deduction of the loan of $8,500, there remained $3,548.68, which said sum is identifiable as proceeds of said 100 shares of Stone & Webster stoek sold for $4,925, subject to the right of other holders of collateral in said pledge to demand contribution; that said excess, plus unearned interest totaling $3,675 was by the Peoples Investment Company delivered to C. K. Poe, acting as Trustee for Paul E. Williams Co., and by him delivered to the Receiver and the Trustee in Bankruptcy of the above estate; that petitioner can trace the proceeds of his stoek, as outlined above, with particularity. “Amendment: Petitioner further states that, if his Amended Petition for Reclamation heretofore filed on April 14,1932, [for 20 shares Pacific National Bank stock], is not sufficiently broad to accomplish reclamation of the proceeds resulting from the sale of Ms said certificate of 100 shares of Stone & Webster stoek, he be permitted to amend the same by asking for the surrender of the proceeds of such sale under allegations similar to those heretofore indicated in this petition. His proposed Amended Claim for Reclamation is attached hereto" }, { "docid": "15495325", "title": "", "text": "purposes of this case so treated. See, e. g., SEC v. Continental Commodities Corp., 497 F.2d 516, 523 (5th Cir. 1974); McClure v. First National Bank, 497 F.2d 490, 493 n. 1 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975). National Bank asserts two theories: first, it argues that the pledge of stock as collateral for the loan constituted a “purchase” of a security by the bank within the meaning of the acts; second, it maintains that the note signed by Mclngvale for the loan is a “security” within the meaning of the acts. I. The Pledge of Stock as a “Purchase” Both the 1933 and 1934 Acts require a “purchase” of stock in order to trigger operation of their antifraud provisions. To invoke federal jurisdiction under the pledge theory, National Bank must demonstrate that the pledge of Associates stock as collateral for the loan to Mclngvale, the owner of the stock, was a “purchase.” This Court has recently held that the mere pledge of a security as collateral for a loan evidenced by a promissory note does not constitute a purchase within the meaning of the securities acts. Reid v. Hughes, 578 F.2d 634, 638 (5th Cir. 1978). The Court said: While it may be true that in certain situations a certificate of deposit can be a security as that term is used in the Act, there is absolutely no support for the proposition that a mere pledge of a security in circumstances such as those alleged here would constitute a purchase or sale thereof within the meaning of Section 10(b) and Rule 10b — 5. See McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490, 495 (5th Cir. 1974). Although the Reid opinion did not develop the point, other Fifth Circuit decisions support the holding. Herpich v. Wallace, 430 F.2d 792 (5th Cir. 1970); McClure v. First National Bank, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975). In count three of Herpich, this Court held that a corporate guarantor" }, { "docid": "22420408", "title": "", "text": "Restrain Sale of Pledged Collateral, 21 Marq. L.Rev. 195, 197. Nevertheless, however broad the power of sale, the pledgee cannot “sacrifice the property wantonly” or purchase “at a valuation so inadequate as to suggest a fraudulent purpose.” Hiscock v. Varick Bank of New York, 206 U.S. 28, 38, 39, 27 S.Ct. 681, 684, 51 L.Ed. 945; Buder v. New York Trust Co., 2 Cir., 82 F.2d 168, 170, 104 A.L.R. 1035. After all, he is a form of fiduciary and his conduct must stand the scrutiny of a court of equity. Toplitz v. Bauer, 161 N.Y. 325, 332, 55 N.E. 1059; Gillet v. Bank of America, 160 N.Y. 549, 560, 55 N.E. 292. The circumstances of the present sale show an utter disregard of the interests of others, particularly the pledgor’s creditors, whose interest was then well known to defendant. The sale was essentially a secret one as to those presently interested, held in the office of defendant’s own counsel, with no attempt to get in outside bidders or to obtain a fair price for the securities. It amounted to no more than an assumption of dominion for the amount of the debt, i.e., a strict foreclosure by self-help. Moreover, while the sale purported to be under the Harnat power of sale, it actually was for default in the later Mauser pledge also, and, as we have seen, covered without differentiation property not subject to that pledge. And since that pledge contained no special provisions of waiver, the pledgee could not sell to himself under it. Story -on Bailments, 8th Ed., § 310; Jones, Collateral Securities and Pledges, 3d Ed.1912, § 635; Restatement, Security, 1941, § 51; Note, 76 A.L.R. 705; Comment, 38 Col.L.Rev. 923. Even under the broader Harnat pledge, where the collateral note authorized disposition of the security “at public or private sale,” it is doubtful under the cases whether such a secret sale of so much collateral to collect only the $7,861.43 due should be supported; with the added attempt to collect its own debt by means and out of property not covered by its pledge, the" }, { "docid": "22229731", "title": "", "text": "— consisting of shares in the “Trust for Equitable Interests in Anheuser-Busch, Incorporated, Shares”. These shares of equitable interests will be referred to here, for convenience, though somewhat inaccurately, as shares of stock. The gift tax upon the transfer of the shares of stock to the severa] trusts amounted to $600,000. The mother desired to make the trusts bear the burden of the gift tax, and so she borrowed the amount at a bank, executed notes therefor, pledged the stock as security, and had the hank agree that there should be no personal liability on the notes hut that it would look only to the collateral for payment. The transfer of the stock to the trusts was made subject to “all the rights and remedies available to the holder [pledgee-bank] at any time of said lien”. The indebtedness was divided into as many notes as there were trusts, a separate note being executed for the proportion of the loan that the amount of stock given to an individual trust bore to the total number of shares transferred. The stock transferred to a particular trust was made collateral only to this separate note. The note which the stock transferred to the trust for petitioner secured was in the sum of $31,395.-52. The bank received and held the stock under an assignment in blank, but the pledge agreement contained a provision that it was “authorized at its option to transfer into its own name or that of its nominee any and all securities which may at any time be pledged hereunder, and this shall he full authority to the corporation or other persons issuing such securities to make such transfer.” There was, however, a further provision in the pledge agreement that “All dividends and distributions of cash, or of other property, made upon said trust shares or any substituted collateral, while above note is unpaid, shall belong to the then owners of the equitable title to said collateral”. As part also of the transaction between the bank and his mother, petitioner executed a written order or direction to the trustees, which recited" } ]

[ { "docid": "6726187", "title": "", "text": "first purchased for use or consumption) barred the action. Allison v. ITE Imperial Corp., 729 F.Supp. 45 (S.D.Miss.1990). Appellants timely appealed. II. The material facts are not in dispute. Appellants contend that Mississippi, rather than Tennessee, law applies and that accordingly, their suit is not barred. “Summary judgment is proper when, viewed in the light most favorable to the non-moving party, ‘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 movant is entitled to judgment as a matter of law. Smith v. Xerox Corp., 866 F.2d 135, 137 (5th Cir.1989) (quotation omitted); Fed.R.Civ.P. 56(e). We apply the same standard, de novo, on appeal. Trial v. Atchison, Topeka & Santa Fe R.R., 896 F.2d 120, 122 (5th Cir.1990); see also Walls v. General Motors, Inc., 906 F.2d 143, 145-46 (5th Cir.1990) (reviewing grant of summary judgment on choice of law under the Mississippi “center of gravity” test). Needless to say, a federal court in a diversity case must apply the choice of law rules of the State in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). And, as recent ly held by the United States Supreme Court, we “review de novo a district court’s determination of state law.” Salve Regina College v. Russell, — U.S. —, —, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). Although prior to 1968, Mississippi applied the law of the place of injury to tort actions, Mississippi in the oft-discussed Mitchell v. Craft, 211 So.2d 509, 515-16 (Miss.1968), adopted the “center of gravity” or “most significant relationship” test, relying in large part upon the then official draft of the Restatement (Second) Conflict of Laws. Mitchell arose out of a two-car collision in Louisiana, involving Mississippi residents and resulting in two wrongful death actions in Mississippi state court, in which each party pleaded contributory negligence. Mississippi’s comparative" } ]

[ { "docid": "14574770", "title": "", "text": "asser tions, and legalistic argumentation are not an adequate substitute for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993). III. ANALYSIS A. “Except in matters governed by federal law, when as here a federal court’s jurisdiction is predicated upon diversity of citizenship of the parties, the federal court must apply the substantive law of the state in which it is sitting.” Maryland Cas. Co. v. Williams, 377 F.2d 389, 392 (5th Cir.1967) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In a diversity case, if the court is required to construe an insurance contract, the court will apply applicable state law. Griffin v. McCoach, 313 U.S. 498, 503, 61 S.Ct. 1023, 85 L.Ed. 1481 (1941). Likewise, federal courts sitting in diversity are governed by the conflict-of-laws rules of the courts of the states in which they sit. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under Texas law, the law of the state with the most significant relationship to the substantive issue in question is to be applied. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). While the underlying lawsuit was filed in Ohio, the policy in question was sold to a Texas corporation through a Texas agent. The insurance policy covered activities principally centered in the state of Texas. Therefore, because Texas has the most significant relationship to and interest in the resolution of this case, Texas law will apply. B. Under Texas law, when determining whether an insurance company has a duty to defend its insured, courts adhere to the “Complaint Allegation Rule,” also known as the “Eight Corners Rule.” That rule states that an insurer’s duty to defend is determined by the allegations in the pleadings and the language of the insurance policy. National Union Fire Ins. Co. of Pittsburgh v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997)." }, { "docid": "18179858", "title": "", "text": "to state a claim. (Id. at 3). The Court notes, however, that it will not treat Defendant’s Motion as a Motion to Dismiss because procedurally, a Motion to Dismiss would not be appropriate because Defendant has already filed its Answer. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999) (finding that, as a matter of motions practice, after Defen dant has filed an Answer, Defendant’s Motion to Dismiss should be viewed as a Motion for Judgment on the Pleadings, which raises the defense of failure to state a claim upon which relief can be granted). In considering Defendant’s Motion for Judgment on the Pleadings [Doc. # 11], the Court notes, that in an action based upon diversity of citizenship, as here, the district court must “apply the substantive law of the state in which it sits, including the state’s choice of law rules.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 599-600 (4th Cir.2004) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941) (“We are of opinion that the prohibition declared in Erie Railroad ... against such independent determinations by the federal courts extends to the field of conflict of laws.”)). Under North Carolina choice of law rules, “the interpretation of a contract is governed by the law of the place where the contract was made.” Bueltel v. Lumber Mut. Ins. Co., 134 N.C.App. 626, 631, 518 S.E.2d 205, 209 (1999) (citing Tanglewood Land Co., Inc. v. Byrd, 299 N.C. 260, 262, 261 S.E.2d 655, 656 (1980)). However, “where parties to a contract have agreed that a given jurisdiction’s substantive law shall govern the interpretation of the contract, such a contractual provision will be given effect.” Id. (citing Tanglewood, 299 N.C. at 262, 261 S.E.2d at 656); see Volvo Constr. Equip. N. Am., 386 F.3d at 600-01 (finding that North Carolina typically gives effect to choice of law provisions). In the present case, Section 23" }, { "docid": "18729664", "title": "", "text": "tort for the design, manufacture and sale of a defective product. The complaints were filed pursuant to the Mississippi wrongful death statute, Miss.Code Ann. § 11-7-13 (1972). Litton and ITT removed both actions to federal district court based on diversity of citizenship and amount in controversy. Since both decedents died in the same helicopter crash, and since both complaints alleged the same theories of recovery, the actions were consolidated for purposes of trial. Both Litton and ITT moved for summary judgment on the ground that Alabama substantive law governed the wrongful death actions. ITT and Litton contended that Alabama treated the limitations period contained in the Alabama wrongful death statute as part of the substantive right to recovery. According to the defendants, Mississippi would apply the Alabama two year limitations period and the plaintiffs’ claims would be time barred. Over the plaintiffs’ opposition, the district court granted summary judgment in favor of the defendants, determining that Alabama substantive law, including the two year limitations period in the Alabama wrongful death statute, governed the action. Price v. Litton Systems, Inc., 607 F.Supp. 30 (S.D. Miss.1984). Price and Donaldson appeal only from the judgment in favor of ITT. This Court concludes that the district court properly determined that Alabama law governed the negligence and strict liability in tort claims in this action. The district court, however, should have conducted a separate inquiry to determine which state’s law governed the breach of warranty claims. Consequently, the judgment of the district court is affirmed in part, vacated in part, and the case is remanded for further consideration in light of this opinion. II. DISCUSSION A. The Basic Principles In this diversity action, this Court is bound to apply the law of the forum state, including that state’s conflict of laws rules. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In this case, therefore, this Court applies Mississippi conflict of laws rules. The parties to this action agree that the conflict" }, { "docid": "16330462", "title": "", "text": "371. Rather, the movant’s success on the merits must be “at least... sufficiently likely to support the kind of relief it requests.” Sanborn Mfg. Co. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 488 (8th Cir.1993). Thus, a showing of likelihood of success on the merits requires simply that the moving party find support for its position in the governing law. Baker Elec. Co-op., 28 F.3d at 1473-74. Because the court has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332, the substantive law governing AEFA’s claims is Iowa law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). (determining federal courts whose jurisdiction is based solely on diversity must apply state, rather than federal, substantive law in order to prevent parties from forum shopping). The court must give effect to the “whole law” of Iowa, which means the court must also apply Iowa’s choice of law rules in determining the applicable law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (ruling the conflict of laws rules to be applied by federal courts sitting in a state must be those rules utilized by that state’s courts); Fuqua Homes, Inc. v. Beattie, 388 F.3d 618, 621 (8th Cir.2004) (“The district court, in determining which state’s substantive law governed, should have applied the forum state’s conflict-of-laws rules, as opposed to simply applying the forum state’s substantive law. In other words, the district court should have given effect to what is called the whole law of the forum.”). In deciding what state’s laws apply to a contract or tort dispute, Iowa generally employs the “most significant relationship” test. Smith v. Gould, Inc., 918 F.2d 1361, 1363 n. 3 (8th Cir.1990) (citing Cole v. State Auto. & Cas. Underwriters, 296 N.W.2d 779, 781 (Iowa 1980) (contract); Zeman v. Canton State Bank, 211 N.W.2d 346, 348-49 (Iowa 1973) (tort)). However, the Iowa Supreme Court has adopted the Restatement (Second) Conflict of Laws § 187, which “permits the parties [to a contract] to agree on the" }, { "docid": "18204935", "title": "", "text": "dismiss will be denied, but the issue may be addressed again at the summary judgment stage. In an action based upon diversity of citizenship, the relevant state law controls. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Ben-Joseph v. Mt. Airy Auto Transporters, LLC, 529 F.Supp.2d 604, 606 (D.Md.2008). The district court must therefore apply the law of the forum state, including its choice-of-law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In contract actions, Maryland courts generally apply the law of the jurisdiction where the contract was made. See, e.g., Allstate Ins. Co. v. Hart, 327 Md. 526, 611 A.2d 100, 101 (1992). In tort actions, Maryland adheres to the lex loci delicti rule, meaning it applies the substantive law of the state where the wrong occurred. Ben-Joseph, 529 F.Supp.2d at 606 (citing Erie Ins. Exch. v. Heffernan, 399 Md. 598, 925 A.2d 636, 648-49 (2007)) (other citations omitted). Parties generally may, however, contract around the choice-of-law rules. The Maryland Court of Appeals “has long recognized the ability of contracting parties to specify in their contract that the laws of a particular State will apply in any dispute over the validity, construction, or enforceability of the contract, and thereby trump the conflict of law rules that otherwise would be applied by the court.” Jackson v. Pasadena Receivables, Inc., 398 Md. 611, 921 A.2d 799, 803 (2007) (citing Williams v. N.Y. Life Ins. Co., 122 Md. 141, 89 A. 97, 99 (1913)). This general rule is subject to two limitations. Maryland courts will not honor a choice-of-law provision if: (1) the chosen state has no substantial relationship to the parties or the transaction, or (2) “application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective" }, { "docid": "18729665", "title": "", "text": "v. Litton Systems, Inc., 607 F.Supp. 30 (S.D. Miss.1984). Price and Donaldson appeal only from the judgment in favor of ITT. This Court concludes that the district court properly determined that Alabama law governed the negligence and strict liability in tort claims in this action. The district court, however, should have conducted a separate inquiry to determine which state’s law governed the breach of warranty claims. Consequently, the judgment of the district court is affirmed in part, vacated in part, and the case is remanded for further consideration in light of this opinion. II. DISCUSSION A. The Basic Principles In this diversity action, this Court is bound to apply the law of the forum state, including that state’s conflict of laws rules. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In this case, therefore, this Court applies Mississippi conflict of laws rules. The parties to this action agree that the conflict of laws decision by the Mississippi Supreme Court in Mitchell v. Craft, 211 So.2d 509 (Miss.1968), provides this Court’s starting point. The parties disagree, however, on what outcome properly ensues from application of the “center of gravity” test enunciated in Mitchell. In Mitchell, which was also a wrongful death action, the Mississippi Supreme Court adopted the “center of gravity” test or the “most substantial contacts” rule as articulated in the Restatement (Second) of Conflict of Laws. That court quoted with approval sections 175, 145 and 6 of the Restatement. Section 175 provides the basic rule for wrongful death actions: § 175. Right of Action for Death. In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which event the local law of the other state will be applied. Mitckell, 211 So.2d at 515 (emphasis in Mitchell). In Mitchell, liability" }, { "docid": "2550247", "title": "", "text": "the federal courts are to apply state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). As to which state law applies, the issue is to be governed by the law of the forum state — the State of Delaware. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 491, 61 S.Ct. 1020, 1020, 85 L.Ed. 1477 (1941). In his motion, plaintiff advances a breach of contract claim, which is governed by state law. In the absence of other facts, then, the “most significant relationship” test for choice of law in contract actions would govern. See Travelers Indem. Co. v. Lake, 594 A.2d 38 (Del.1991). In this case, however, the parties have made their own choice of law, that is, they have contracted expressly for the Incentive Stock Agreement to be “construed and enforced in accordance with the laws of the state of Delaware.” D.I. 15 Ex. 1-C at 6. Delaware courts generally honor such provisions selected by contracting parties, so long as some material connection links the chosen jurisdiction to the transaction. Wilmington Trust Co. v. Wilmington Trust Co., 24 A.2d 309, 313 (Del.1942); Cooper v. Boss & Roberts, Inc., 505 A.2d 1305, 1306 (Del.Super.Ct.1986). See Restatement (Second) of Conflict of Laws § 187 (1971). That connection is clearly present here because defendants are all incorporated in Delaware. See A.I.C., Ltd. v. Mapco Petroleum, Inc., 711 F.Supp. 1230, 1237 (D.Del.), aff'd mem., 888 F.2d 1378 (3d Cir.1989) (upholding similar choice of law provision when defendant was incorporated in Delaware). The Court therefore will construe and enforce the Incentive Stock Agreement in accordance with the laws of the State of Delaware. C. Plaintiff’s Entitlement to the Issuance of Unrestricted Shares In Count III of his amended complaint, plaintiff alleges that by refusing to issue a new, unrestricted certificate representing his shares, defendant has materially breached the Incentive Stock Agreement. D.I. 7 at 18-19. Defendant maintains the agreement entitles it to repurchase those shares. D.I. 13 at 20. At the heart of the dispute is the meaning of several provisions of the" }, { "docid": "8881366", "title": "", "text": "to RAL, in order to induce RAL’s employee’s away from RAL and over to Lamar. The logic here is that Lamar’s use of the unfavorable language rose to a level constituting the tortious conduct of defamation or disparagement, either of which is sufficient to trigger the policy’s coverage under Coverage B. The district court considered the parties’ motions for summary judgment, applied Louisiana law, and subsequently denied Lamar’s motion and granted Continental’s motion. This appeal by Lamar ensued. STANDARD OF REVIEW This Court reviews the grant of a motion for summary judgment de novo, applying the same legal standards as the district court applied to determine whether summary judgment was appropriate. Flock v. Scripto-Tokai Corp., 819 F.Sd 231, 236 (5th Cir.2003) (citing Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir.2002)). A summary judgment motion is properly granted only when, viewing the evidence in the light most favorable to the nonmoving party, the record indicates that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.CivP. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In a diversity case such as this one, federal courts must apply the choice of law rules in the forum state in which the court sits.” American Intern. Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). The parties agree, and Louisiana choice of law rules dictate, that in this action involving the interpretation of an insurance policy issued in Louisiana, Louisiana substantive law governs this Court’s decision. See id. (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Under Louisiana law “an insurance policy is a contract that must be construed in accordance with the general rules of interpretation of contracts set forth in the Loui siana Civil Code.” American Intern. Specialty Lines Ins. Co., 352 F.3d at 262" }, { "docid": "22626322", "title": "", "text": "state a claim. See id. at 313 n. 8; see also 5C Charles AlaN Wright & Arthur R. Miller, Federal PraCtice and Procedure § 1368 (3d ed.2004). “The central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.” Great Plains Trust Co., 313 F.3d at 312 (citing Hughes, 278 F.3d at 420). We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). “Summary judgment is proper when the evidence -reflects no genuine issues of material fact and the non-movant is entitled to judgment as a matter of law.” Id. (citing Fed.R.Civ.P. 56(c)). “A genuine issue -of material fact' exists ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). III. DISCUSSION A. Controlling Law In diversity cases such as these, federal courts must apply state substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Ashland Chem. Inc. v. Barco Inc., 123 F.3d 261, 265 (5th Cir.1997). In determining which state’s substantive law controls, the court applies the choice-of-law rules of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties agree that in these Louisiana actions involving the interpretation of insurance policies issued in Louisiana for property located in Louisiana, Louisiana’s substantive law controls. Cf. Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003). To determine Louisiana law, we look to the final decisions of the Louisiana Supreme Court. See id. In the absence of a final decision by the Louisiana Supreme Court, we must make an Erie guess and determine, in our best judgment, how that court would resolve the issue" }, { "docid": "1397310", "title": "", "text": "Cir.1996). Keener’s claims were grounded in diversity jurisdiction, therefore the district court, sitting in Georgia and acting in accordance with Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), applied Georgia’s conflict of law rules to determine whether Georgia or Ohio law applied to the NCA. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). In accordance with Erie, we review the district court’s decision in light of Georgia conflict of laws rules and our precedent in applying those rules. Convergys contends that the district court acted contrary to precedent by declaring the NCA unenforceable under Georgia law. Convergys argues that the district court should have given effect to the choice-of-law provision in the NCA and decided the merits of Keener’s motion for summary judgment under Ohio láw. In support, Convergys points to the factual record that contains little connection between the execution of the NCA and Georgia. The only connection argued is that Keener currently lives in Georgia and was employed by H.O. Systems in Georgia. Accordingly, Convergys claims, pursuant to the language in Restatement (Second) Conflict of Laws § 187(2) , Georgia does not have the requisite “materially greater interest” than Ohio in applying its own law to the NCA, and the district court erred when it did not consider the relative interest of the two states before applying Georgia law to declare the NCA unenforceable. Convergys argues that Ohio law governs and the NCA is enforceable under Ohio law. Before we can decide the merits of Con-vergys’s appeal regarding the enforceability of the NCA, we must first determine whether the district court correctly elected to apply the law of Georgia. The district court relied upon, inter alia, Nasco, Inc. v. Gimbert, 239 Ga. 675, 238 S.E.2d 368 (1977), and Hulcher Services, Inc. v. R.J. Corman Railroad Company, L.L.C., 247 Ga.App. 486, 543 S.E.2d 461, 465 (2000), for the Georgia conflict of laws rule that “[t]he law of the jurisdiction chosen by parties to a contract to govern their contractual rights will" }, { "docid": "14362482", "title": "", "text": "considering the burden on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies. Burger King, 471 U.S. at 477, 105 S.Ct. at 2184. Requiring MIS to defend this suit in Mississippi would not offend these principles. Coats is a resident of Mississippi, and Mississippi has a strong “interest in providing effective means of redress of its residents.” McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957); see also Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 780 (5th Cir.1986); Pedelahore, 745 F.2d at 349. It was not unreasonably inconvenient to require MIS to defend a suit in Mississippi given that many of its employees are American. See Burger King, 471 U.S. at 477, 105 S.Ct at 2184 (“[t]hese considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required”). III. A. Turning to the district court’s ápplication of United States law, MIS first argues that the choice of law is between the law of the United Arab Emirates and Mississippi law, rather than the general maritime law. This conclusion rests on the contention that the district court lacked subject matter jurisdiction in admiralty, and therefore, the only basis for federal jurisdiction is diversity. If so, the district court should have applied Mississippi’s choice of law rules in deciding between foreign and state law. See Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). MIS asserts that Mississippi would apply the law of the United Arab Emirates to this case. MIS argues that the activity giving rise to Coats’ accident does not have a sufficient connection to traditional maritime activity to support admiralty tort jurisdiction. See Sisson" }, { "docid": "13205504", "title": "", "text": "according to Mississippi law. We review the district court’s grant of a summary judgment motion de novo. Davis v. Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir.1991). Summary judgment is appropriate if the record discloses “that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Because federal jurisdiction in this ease is premised on diversity of citizenship, the district court was bound to apply the conflict of laws rules of the forum state— Mississippi. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)); Allison v. ITE Imperial Corp., 928 F.2d 137,138 (5th Cir.1991) (citing Erie and Klaxon). The district court held that the Mississippi Supreme Court would follow § 187 of the Restatement (Second) of Conflict of Laws in deciding whether Mississippi substantive law — which the parties chose — or Louisiana substantive law would govern the enforcement of the noncompete agreement. Magee and Burris do not challenge the district court’s determination that the Mississippi Supreme Court would follow § 187, and we assume arguendo that that determination is correct. ■ Section 187 provides: The law of the state chosen by the parties to govern their contractual rights and duties will be applied ... unless ... application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties. Restatement (Second) of Conflict of Laws § 187(2)(b). The district court held that under § 187 Mississippi law governs the contract, and La.Rfev.Stat.Ann. § 23:921 “has no bearing on the Court’s analysis,” because (1) “Louisiana does not have a materially greater interest in the enforceability of the" }, { "docid": "13205503", "title": "", "text": "favor of Herring and Herring Gas. See Herring Gas Co., Inc. v. Magee, 813 F.Supp. 1239 (S.D.Miss.1993). Magee and Burris appeal. II Magee and Burris argue that the district court erred by granting a declaratory judgment that the noncompete agreement is enforceable in Louisiana. Although the parties to the agreement stipulated that the contract would be governed by Mississippi law, Magee and Burris contend that La.Rev.Stat.Ann. § 23:921 bars enforcement of the noncom-pete agreement in Louisiana. According to Magee and Burris, the Mississippi Supreme Court, applying Mississippi conflict of laws rules, would follow § 23:921 insofar as the agreement is to be enforced in Louisiana, because (1) Louisiana has a fundamental policy against noncompete agreements with a term greater than two years, and (2) Louisiana has a materially greater interest than Mississippi in the enforcement of the non-compete agreement in Louisiana. See Restatement (Second) of Conflict of Laws § 187(2)(b) (1971). Magee and Burris contend that the Mississippi Supreme Court would have held the agreement unenforceable in Louisiana under Louisiana law, but enforceable in Mississippi according to Mississippi law. We review the district court’s grant of a summary judgment motion de novo. Davis v. Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir.1991). Summary judgment is appropriate if the record discloses “that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Because federal jurisdiction in this ease is premised on diversity of citizenship, the district court was bound to apply the conflict of laws rules of the forum state— Mississippi. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)); Allison v. ITE Imperial Corp., 928 F.2d 137,138 (5th Cir.1991) (citing Erie and Klaxon). The district court held that the Mississippi Supreme Court would follow § 187 of the Restatement (Second) of Conflict of Laws in deciding whether Mississippi substantive law — which the parties chose — or" }, { "docid": "13761901", "title": "", "text": "cause of action against both the Cowans and the insurer. The state court agreed, and on May 10, 1974, granted the motion for summary judgment and dismissed with prejudice the action against all defendants. Plaintiffs have now entered this federal district court to litigate the merits of their claims. In considering the insurer’s motion to dismiss, we recognize that, in diversity cases, the law of the forum state governs, including the applicable state statutes of limitations. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). More significantly for the case sub judice, the forum state’s conflict of law rules also apply. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Gillies v. Aeronaves de Mexico, S.A., 468 F.2d 281, 284 (5 Cir. 1972); Kershaw v. Sterling Drug, 415 F.2d 1009 (5 Cir. 1969). In Mississippi, as in most jurisdictions, choice of law in wrongful death actions is governed by the “center of gravity” or “most substantial contacts” test. Mitchell v. Craft, 211 So.2d 509 (Miss.1968). The considerations relevant to choosing the substantive law to be applied under this test are well known and need not be recited here. See generally, The Restatement . (Second) Conflict of Laws (Proposed Official Draft, Adopted May 24, 1968). In this instance, where the cause of action accrued in Tennessee, and where the plaintiffs and decedent were Tennessee citizens, we are satisfied that the Supreme Court of Mississippi would conclude, as we do, that Tennessee has the most substantial relationship to the oe currence and parties involved in this lawsuit, and that Tennessee substantive law must govern the rights and liabilities of the parties. The choice of law question is made somewhat more complex since statutes of limitation are involved in the insurer’s motion to dismiss. As a rule, Mississippi treats statutes of limitation as procedural; and in keeping with the accepted practice of applying procedural rules of the forum state irrespective of the choice of" }, { "docid": "18644063", "title": "", "text": "and whether Chase breached a fiduciary duty to Thomas; and (3) the Columbia Investors claim was not barred by the statute of frauds or the parole evidence rule. For the reasons to follow, we presently address only standing. As noted, we review a summary judgment de novo, applying the same criteria as would a district court. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). “Summary judgment is proper only if ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law’ ”. Harbor Ins. Co. v. Trammell Crow Co., 854 F.2d 94, 98 (5th Cir.1988), cert. denied, 489 U.S. 1054, 109 S.Ct. 1315, 103 L.Ed.2d 584 (1989) (quoting Fed.R.Civ.P. 56(c)). “We consider all of the facts contained in the [summary judgment record], and the inferences to be drawn therefrom in the light most favorable to the non-moving party”. Harbor Ins. Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th Cir.1993). (Even when confronted with -Thomas’s lengthy, detailed affidavit in opposition to its motion, Chase did not file any affidavits in response. See note 1, supra.)- Furthermore, “[o]ur review is not limited to the district court’s analysis”; we may affirm on any basis- presented to the district court. Id. A. It goes without saying that in a diversity action, we apply state substantive law. Turner v. Purina Mills, Inc., 989 F.2d 1419, 1421 (5th Cir.1993); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Chase asserts that New York, rather than Texas, law applies. In determining which state’s substantive law controls, we apply choice-of-law principles of the forum state — in this case, Texas. Trizec Properties, Inc. v. United States Mineral Products Co., 974 F.2d 602, 604 (5th Cir.1992); Klaxon Co. v. Stentor Electrical Mfg. Co., 313 U.S. 487, 496 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). And, for cases sounding in tort, such as this one, Texas applies the “most significant relationship” test from the Restatement (Second) of Conflicts, §§ 6" }, { "docid": "6966025", "title": "", "text": "address only the choice of law issue and Penrod’s proposal for modified joint liability. The portions of the panel opinion addressing personal jurisdiction over MIS (Part II), see Coats, 5 F.3d at 881-85; forum non conveniens (Part IV), see id. at 889; and Coats’ cross-appeal (Part VI), see id. at 890-92, are reinstated. II. CHOICE OF LAW A. Subject Matter Jurisdiction in Admiralty Turning to the district court’s application of United States law, MIS first argues that the choice of law is between the law of the United Arab Emirates and Mississippi law, rather than the general maritime law. This conclusion rests on the contention that the district court lacked subject matter jurisdiction in admiralty, and therefore, the only basis for federal jurisdiction is diversity. If so, the district court should have applied Mississippi’s choice of law rules in deciding between foreign and state law. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). MIS asserts that Mississippi would apply the law of the United Arab Emirates to this ease. MIS argues that the activity giving rise to Coats’ accident does not have a sufficient connection to traditional maritime activity to support admiralty tort jurisdiction. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., — U.S. -, -, 115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024 (1995); Sisson v. Ruby, 497 U.S. 358, 365, 110 S.Ct. 2892, 2897, 111 L.Ed.2d 292 (1990); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982); Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972). While this circuit formerly applied a multi-factor approach to determine whether there was a substantial relationship to traditional maritime activity, see, e.g., Kelly v. Smith, 485 F.2d 520, 525 (5th Cir.1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974), that approach was rejected by the Supreme Court in Grubart. According" }, { "docid": "5916600", "title": "", "text": "of the parties.” J.A. at 43. Plaintiffs’ timely appeal of the choice of law issue is now before this court. II. STANDARD OF REVIEW The district court’s ruling on the choice of law issue is reviewed de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1218-1221, 113 L.Ed.2d 190 (1991); Charash v. Oberlin College, 14 F.3d 291, 296 (6th Cir.1994). III. CHOICE OF LAW RULES It is well-established that, in a diversity case such as this one, a federal court must apply the substantive law of the state in which the court sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). This rule extends to the forum state’s law regarding choice of laws. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Because this action was brought in federal court in Michigan, Michigan’s choice of law rules apply. The Michigan Supreme Court most recently addressed the state’s choice of law rules in contract disputes in Chrysler Corporation v. Skyline Industrial Services, Inc., 448 Mich. 113, 528 N.W.2d 698 (1995). In that case, Chrysler Corporation, a Delaware corporation with its principal place of business in Michigan, and Skyline Industrial Services, Inc. (“Skyline”), a Michigan corporation, entered into a contract for construction services to be performed by Skyline in Illinois. Negotiated mainly in Michigan, the contract provided that Skyline would indemnify and hold Chrysler harmless from Chrysler’s negligence. Such an indemnification provision in a construction contract was void under Illinois law but was valid under Michigan law unless the indemnitee was solely negligent. After a Skyline employee was injured while working at an Illinois construction site, Chrysler commenced an action in Michigan seeking a declaratory judgment that Skyline was liable under the indemnification clause. The trial court found that applying Michigan law would best give effect to the parties’ intentions at the time of contracting. Analyzing the choice of law issue under the Restatement (Second) of Conflict of Laws (“Second Restatement”), an appellate court reversed, concluding that the" }, { "docid": "13205505", "title": "", "text": "Louisiana substantive law would govern the enforcement of the noncompete agreement. Magee and Burris do not challenge the district court’s determination that the Mississippi Supreme Court would follow § 187, and we assume arguendo that that determination is correct. ■ Section 187 provides: The law of the state chosen by the parties to govern their contractual rights and duties will be applied ... unless ... application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties. Restatement (Second) of Conflict of Laws § 187(2)(b). The district court held that under § 187 Mississippi law governs the contract, and La.Rfev.Stat.Ann. § 23:921 “has no bearing on the Court’s analysis,” because (1) “Louisiana does not have a materially greater interest in the enforceability of the covenant not to compete;” and (2) Louisiana “would not be the state of the applicable law under Section 188” of the Restatement. The district court reasoned that Louisiana did not have a materially greater interest in enforcement of the contract because “two of the parties to the termination agreement [Herring and Herring Gas] are Mississippi residents, the termination agreement was executed in Mississippi, and the covenant not to compete restricts the rights of [Magee and Burris] to do business in Mississippi to a greater degree than it does in Louisiana.” With regard to the latter conclusion, the district court noted that most of the Herring Gas retail stores, and the bulk of its sales, are in Mississippi. Magee and Burris contend that the district court erred because the Mississippi Supreme Court would have found that Louisiana has a materially greater interest in the enforcement of the noncompete agreement in Louisiana, Magee and Burris essentially contend that the district court erred in identifying “the particular issue” when deciding whether Louisiana “has a materially greater interest than" }, { "docid": "4109108", "title": "", "text": "of the Federal Rules of Civil Procedure sets forth the standard for ruling on a summary judgment motion: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether summary judgment is appropriate, the Court must view the facts on the record and all inferences therefrom in the light most favorable to the nonmoving party. Continental Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991). Additionally, the moving party bears the burden of showing that no evidence supports the nonmoving party’s position. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If that showing is made, the motion can then be granted if, as a matter of law, the moving party is entitled to judgment in its favor. B. Applicable Law The Court has subject matter jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1332(a)(1). Because the basis for the Court’s jurisdiction is the diversity of citizenship of the parties, the Court must apply the substantive law of the state where it sits, including that state’s choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). In this case, the parties do not dispute that Rhode Island law governs their claims and counterclaims. Therefore, the Court applies Rhode Island law to F + M’s motion for summary judgment on its breach of contract claim as well as F + M’s motion for summary judgment on Bogosian’s attorney malpractice counterclaim. C. F + M’s Breach of Contract Claim F + M objects to Magistrate Judge Boudewyns’ recommendation that F + M’s motion for summary judgment be denied on its breach of contract claim against Bogosian. Accordingly," }, { "docid": "7499839", "title": "", "text": "cannot be had under a breach of contract theory. However, before discussing this matter, the Court must address a preliminary issue, namely what substantive body of law governs NHC’s breach of contract claim. A. Since this is a diversity action, the Court must apply the substantive law of the forum state, namely Arkansas, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including its conflict-of-laws rules. Klaxon Co. v. Stentor Elect. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Nesladek v. Ford Motor Co., 46 F.3d 734, 736 (8th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 67, 133 L.Ed.2d 28 (1995). In contract actions, the Arkansas Supreme Court has stated, in its most recent pronouncement on the subject, that it will apply the \"most significant relationship\" test to breach of contract claims. Ducharme v. Ducharme, 316 Ark. 482, 485, 872 S.W.2d 392, 394 (1994). Of course, resort to this test need only be made if the parties have not specified the law that will govern any disputes arising under their contract. As in most (if not all) other jurisdictions, Arkansas courts will enforce a contractual choice-of-law clause, provided that the law selected is reasonably related to the contract at issue and does not violate a fundamental public policy of the forum state. See Arkansas Appliance Distributing Co. v. Tandy Elec., Inc., 292 Ark. 482, 485-86, 730 S.W.2d 899, 900 (1987); Cooper v. Cherokee Village Dev. Co., 236 Ark. 37, 43-45, 364 S.W.2d 158, 161-62 (1963); accord Restatement (Second) of Conflict of Laws § 187(2) (1971). Paragraph XVI of the Marketing Agreement states that the agreement \"shall be governed and enforced in accordance with [the] substantive laws of the Commonwealth of Pennsylvania,\" and it cannot, in the Court's view, be said that the law of Pennsylvania — that which governs the agreed upon point of sale for all goods solicited under the Marketing Agreement — lacks a reasonable relationship to the parties' contractual arrangement. Nor, in the present context, does there appear to be any public policy of" } ]

[ { "docid": "1261931", "title": "", "text": "is no indication in the record that plaintiff was later re-examined by Dr. Guttmann or found able to work. There is thus no support in the record for the finding of the Social Security Administration that plaintiff is not disabled. Dr. Guttmann is the only one of the medical experts whose opinion even suggests that plaintiff, although disabled at the time of examination, might be able to work again at some time in the future. Yet, Dr. Guttmann did not later examine plaintiff again, and all subsequent medical evaluations by Dr. Waltz and Dr. Stein continue to attest to plaintiff’s disability. To the extent that there are any contradictions between the findings and opinions of Dr. Guttmann, who examined plaintiff on only one occasion, and Drs. Stein and Waltz, who each independently treated plaintiff on a continuing basis over a period of years, this Court chooses to rely on the testimony and reports of Drs. Stein and Waltz. The opinion of a treating physician is to be accorded greater weight than that of a doctor who has seen a claimant but once. Smith v. Secretary of Health, Education and Welfare, C.A. No. 79-816 (E.D.Pa. June 9, 1980); Rosa v. Weinberger, 381 F.Supp. 377, 380 (E.D.N.Y.1974). The Social Security Administration has failed to show that plaintiff is capable of performing alternate gainful employment. Although the disability examiner found in August, 1977 that plaintiff was capable of certain light sedentary jobs such as car rental clerk, assignment clerk, or meat grader (Tr. 210), the record reveals no evidence to support that decision, or that plaintiff would be able to engage in any other type of work. Indeed, plaintiff in fact attempted to engage in as light a type of work as can be imagined when he was employed as a telephone researcher, but was fired as his physical condition prevented him from even sitting at a desk and speaking on the phone. The Social Security Administration can point to nothing in the record to contradict the findings of Mr. Orr, the sole vocational expert to have examined and reported on plaintiff’s vocational" } ]

[ { "docid": "10956352", "title": "", "text": "to sustain either light or sedentary work on a full-time basis. Id. One non-treating physician, Dr. Leopold Moreno, reviewed Plaintiffs medical record and completed a residual physical functional capacity assessment on September 10, 1992. (R. at 89-96). Dr. Moreno diagnosed arthritis of the left knee and a medial meniscus tear of the left knee. He opined that Plaintiff was able to occasionally lift twenty pounds, frequently lift ten pounds, stand or walk for a total of six hours in an eight-hour work day, sit six hours in an eight-hour work day, and push and pull an unlimited amount. (R. at 90). In his ruling, the ALJ essentially ignored the medical opinions of Plaintiffs treating physicians, relying instead upon snap-shots of Plaintiffs medical'history when she was feeling well and Plaintiffs testimony about her daily activities. As the Magistrate Judge stated in his Report and Recommendation, the ALJ’s failure to accord proper wéight to the opinions of Plaintiffs treating physicians was error. The opinion of a claimant’s treating physician is entitled to considerable weight because only a treating physician is “able to provide a detailed, longitúdinal picture of [the claimant’s] medical impairment”. 20 C.F.R. § 404.1527(d)(2). Under section 404.1527(d)(2), the opinion of a treating physician is entitled to controlling weight if it is “supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.” Id. In this case, the opinions of Plaintiffs treating physicians should be accorded controlling weight. The opinions of Dr. Wilson, Dr. Fleming, and Dr. Bercowitz are supported by two diagnostic arthroscopic surgeries, pathological evaluations, an MRI, and numerous physical examinations over several years. Clearly, their opinions are supported by medially acceptable diagnostic techniques. Neither the ALJ nor anyone else has suggested' otherwise. Furthermore, their opinions are not inconsistent with other substantial evidence. The only evidence which the ALJ could have relied upon to show an inconsistency is the report of one non-treating, non-examining doctor and the testimony of Plaintiff about her daily activities. Clearly, the report of Dr. Moreno, who has never examined Plaintiff, could not be considered substantial evidence justifying" }, { "docid": "6852793", "title": "", "text": "the upper and lower extremities, with normal sensation and no evidence of atrophy. (Tr. 196-97.) The only additional RFC report, dated January 31, 1985, was provided by a Dr. L. Marasigan. Although the record is unclear, it appears that Dr. Marasigan did not examine plaintiff and simply relied on unspecified medical records made available to him by the SSA. Dr. Marasigan concluded that plaintiff could lift up to fifty pounds, could frequently lift and carry twenty-five pounds, could stand and/or walk for six hours as well as sit for six hours in an eight-hour day, and had no limitations on her ability to push or pull with either her feet or her hands. (Tr. 187.) He also stated that plaintiff could occasionally balance, stoop, kneel, crouch or crawl, but could not climb, presumably because of her history of seizures. (Id.) Dr. Marasigan did not provide the basis for any of his conclusions that differed from the statements made by the plaintiff or the evaluations reported by the treating physicians, merely noting that “[claimant has history of mitral valve stenosis. Heavy lifting & etc [sic] should be avoided.” (Tr. 188.) The record also contains the opinion testimony of a Dr. Richard J. Wagman, who was called to testify as an “expert” medical advisor by the Secretary. Dr. Wagman, who apparently had also not examined plaintiff, disagreed with certain of the findings of plaintiff’s treating physicians. He opined that plaintiff’s mitral stenosis was relatively mild, that her seizures were infrequent, and that he viewed the medical record as inconsistent with the symptoms to which plaintiff and her daughter had testified. (Tr. 285-87.) In addition, Dr. Wagman disagreed with the treating physicians’ assessment of plaintiff’s residual functional capacity, arguing that, based on his review of the medical record, she could sit and stand normally without any restrictions, and that she could occasionally lift up to twenty-five pounds. (Tr. 289-91.) Dr. Wagman claimed that the results of plaintiffs stroke had completely cleared up by 1985, as evidenced by the reports of the consultative physicians. (Tr. 299.) Finally, Dr. Wagman commented that plaintiffs alleged medical" }, { "docid": "20061230", "title": "", "text": "F.Supp.2d 620, 627 (S.D.N.Y.2006) (“Even if the treating physician’s opinion is contradicted by substantial evidence and is thus not controlling, it is still entitled to significant weight because the treating source is inherently more familiar with a claimant’s medical condition than are other sources.”). A failure by the Commissioner to provide “good reasons” for not crediting the opinion of a treating physician is a ground for remand. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999). b. Application In reaching his conclusion regarding plaintiffs ability to work, the ALJ relied primarily on the medical opinions of Dr. Skeene and Dr. Montorfano. In rejecting Dr. Goldman’s opinion, the ALJ stated: We have contrasted [Dr. Skeene’s] opinion to that of Dr. Goldman, who, as stated above, was seen at the request of claimant’s attorney. Therefore, Dr. Goldman’s findings are self-serving. Dr. Goldman disagreed with the findings of Dr. Skeene and noted that jobs requiring repetitive activities would be ruled out. When seen on January 15, 2008, the claimant indicated he had difficulty sitting more than 20-25 minutes, although this was not mentioned in the first report of Dr. Goldman dated November 14, 2006. Therefore, we find claimant’s statement is not credible with regard to his sitting capacity. Lastly, we note the State Agency physician, Dr. Montorfa[no], indicates on September 5, 2005, that the claimant could lift up to 20 pounds and up to 10 pounds frequently; could stand/walk up to 2 hours per day; sit up to 6 hours; and was only limited to occasional climbing stairs, stooping, kneeling, and crouching, and some limitations affecting his ability to reach. Dr. Montorfa[no] is considered an expert, and his opinion is entitled to significant weight. (R. 34-35 (internal citations omitted).) As discussed below, the reasons given by the ALJ for rejecting Dr. Goldman’s opinion are insufficient. Furthermore, the ALJ did not explicitly consider the several factors required to decide how much weight to give the treating physician’s opinion. Accordingly, the case must be remanded to the ALJ for further consideration of Dr. Goldman’s opinion in light of this Court’s analysis. As a threshold" }, { "docid": "14062780", "title": "", "text": "Security Act at any time beginning on or before the date of the decision. The AU relied primarily on the report of Dr. Charles A. Derrow, who examined Damron at the request of the Secretary. Derrow indicated that there was no evidence of persistent neurologic deficit. He found no medical explanation for the chest pain or for the joint, neck, and back pain. The AU further relied on one page of a report filled out at the Secretary’s request by Dr. Charles B. May, Damron’s treating physician since 1976. In this report Dr. May opined that during an entire eight-hour work day Damron could sit for four or five hours, stand for two or three hours, and walk for one or two hours. He further opined that she could lift ten pounds frequently and up to twenty-five pounds occasionally, could use her hands for simple grasping, and could occasionally bend, squat, and reach. Plaintiff’s arguments are that (1) the AU was selective in his consideration of the evidence, (2) the AU failed to consider Damron’s subjective complaints, (3) the AU failed to consider the combined effects of Damron’s medically documented impairments, (4) the AU gave insufficient weight to the opinions of Damron’s treating physician, and (5) the AU mechanically and improperly applied the grid. Because of the conflict between plaintiff’s testimony and the report of her attending physician as to the limitations on her activities, substantial evidence supported the AU’s refusal to accept plaintiff’s testimony. However, we remand based on the final argument, and the failure to note the restrictions in the treating physician’s reports. Plaintiff argues that the AU mechanically and improperly applied the grid to reach the conclusion that Damron could engage in at least light work. We agree with plaintiff’s contention. The AU com pletely failed to consider the effect of nonexertional limitations upon Damron’s ability to find work in the national economy. Dr. May totally restricted Damron from environments that would expose her to dust, gases, fumes, and marked changes in temperature and humidity. He further totally restricted her from activities involving unprotected heights and being" }, { "docid": "710852", "title": "", "text": "to a request from the SSA, Dr. Kamalian assessed Rivera’s residual functional capacity in a report dated April 16, 1984. He indicated that Rivera could occasionally lift up to five pounds, could do no substantial carrying at all, could sit no more than four hours in the course of an eight-hour day, could not stand for even one hour in the course of an eight-hour day, and could not walk more than two hours in the course of an eight-hour day (Tr. at 129). Dr. Kamalian stated that Rivera could reach frequently and bend or squat occasionally, but could not crawl or climb (Id.). In a report issued one week later, April 23, 1984, Dr. Kamalian reiterated that Rivera’s working capabilities were limited, but suggested that Rivera “could ... be rehabilitated to do a sedentary type of job” (Tr. at 131). Dr. G. Michael Croker, a chiropractor who treated the claimant once or twice a month from January 1982 to January 1984 (Tr. at 36, 111), provided additional analytical reports. Dr. Croker diagnosed Rivera’s condition as severe lumbosacral myofuscitis accompanied with L-5 disc syndrome and compression of the lumbosacral plexus (Tr. at 111). He indicated that Rivera’s symptoms included severe pain in the lower spine with bilateral radiation to the legs, acroparathesia, a guarded and antalgic gait, and increased pain when Rivera moved or coughed (Id.). He stated that prolonged standing and sitting aggravated Rivera’s pain, and he advised against “any and all lifting” (Id.). Two consulting physicians retained by the SSA provided the remainder of the medical reports. Neither of them examined Rivera, but instead based their conclusions on a review of his medical file. Both doctors reiterated the essential findings of Dr. Kamalian, likewise diagnosing Rivera’s condition as a herniated disc (Tr. at 122, 124). However, the consultants disagreed with Dr. Kamalian’s evaluation of Rivera’s residual functional capacity. One of the consultants found Rivera capable of frequently lifting or carrying objects weighing 25 pounds, and occasionally lifting or carrying objects of up to 50 pounds (Tr. at 121). He also found Rivera capable of walking or standing six" }, { "docid": "5358387", "title": "", "text": "conflicted with her written statements. The disability reports that Schroeter filled out did not provide her with finely calibrated choices indicating the lifting and carrying requirements of her past work. The forms require that the claimant check a box indicating the heaviest weight lifted; Schroeter had a choice between checking ten pounds or twenty pounds. Given this choice, Schroeter checked ten pounds. We think it reasonable for Schroeter to have checked the box closest to the weight lifted, even though she lifted heavier amounts but not as heavy as the next highest category. Thus there was not even a clear conflict in this evidence for the administrative judge to resolve. If Schroeter’s testimony stood uncontradicted, the AU was bound to consider it. Walker, 834 F.2d at 643. Finally, we note that Schroeter’s description pf her work was entirely consistent with the DOT, which indicates that work as a waitress requires the ability to lift twenty pounds and carry ten pounds frequently, and to stand and walk for -six hours a day. DOT 240-41 (4th ed. 1991); see also United States Department of Labor, Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles 330 (1981). We conclude that the AU did not accurately ascertain the requirements of Schroeter’s former employment. Schroeter also contends that the AU failed to consider all of the medical evidence and ignored the opinion of Dr. Chen, the physician who treated her hernias. Dr. Chen opined that Schroeter could bend and reach only occasionally and that she could stand or walk for no more than four hours a day, and not for longer than two hours at a time. The Secretary urges that Dr. Chen’s report was not at odds with the findings of the AU because Schroeter “would be able to cope with the sitting and standing requirements of that job by alternating between sitting and walking and she would be permitted to rest during her breaks and her lunch.” Appellee’s Brief at 24. We find the Secretary’s interpretation of Dr. Chen’s report quite'unpersuasive. Indeed, we can only conclude that counsel for the Secretary" }, { "docid": "21921421", "title": "", "text": "can neither stand for longer than twenty minutes, nor sit for more than one half hour at a time. Dr. Robert Kuhlman examined him extensively on October 11,1978, and concluded that Mr. Andrews was unable to work unless he underwent surgery, which offered only a slim chance of success (Tr. 148). Dr. Edward Shaw, who treated Mr. Andrews more than a dozen times after the accident, determined that he could not do heavy work and should not bend, but that during an eight-hour work day he could stand or walk slowly for four hours and lift twenty pounds if necessary (Tr. 153). Terry J. Weis, D.O., examined him on July 16, 1979, and concluded that he was eighty per cent disabled. Dr. Milton I. Lenobel examined him and took x-rays on November 29, 1979, and determined that he could not “engage in an occupation that would require prolonged standing and walking, and excessive bending and heavy lifting. He could, however, . . . perform in an occupation that might require the above activities to a moderately limited degree” (Tr. 158). The Administrative Law Judge (ALJ) found that Mr. Andrews had the residual functional capacity for at least sedentary work. He then applied the Secretary’s Medical-Vocational Guidelines, 20 C.F.R. §§ 404.1501 et seq., 416.901 et seq. (1980), and determined that Mr. Andrews was not disabled. There is conflicting evidence as to Mr. Andrews’s potential for gainful employment, but our review of the final administrative decision is limited to deciding whether or not it is supported by substantial evidence. The ALJ determined that Mr. Andrews was capable of engaging in sedentary work as defined in 20 C.F.R. §§ 404.1510(b) and 416.910(b): Sedentary work. Sedentary work entails lifting 10 pounds maximum and occasionally lifting or carrying such articles as dockets (e.g., files), ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. Statements made by Drs. Lenobel" }, { "docid": "4905052", "title": "", "text": "to the medical evidence. Claimant has been hospitalized on a number of occasions (Tr. 33-35), most recently from January 2, 1980 to January 10, 1980 at Cooper Medical Center, for traction, muscle relaxants and other medication. Claimant’s treating physician, Dr. Otto T. Boysen, an orthopedic surgeon, in a note dated March 2, 1979, stated that claimant was “totally disabled due to lumbrosacral strain.” (Tr. 116). Dr. Boysen made a medical report in August of 1979 detailing claimant’s treatment since his injury in the summer of 1977. (Tr. 128-129). Diagnosis continued to be recurrent lumbrosacral strain and Dr. Boysen concluded that claimant, unable to walk without use of a cane, remained “totally disabled.” Claimant was also examined by Dr. Thomas Obade, an orthopedic surgeon, on behalf of the Secretary on May 18, 1979. (Tr. 85-88). The examination revealed that claimant had 25 percent normal range of motion in his back with a mild amount of spasm, his hips moved well without pain, and claimant was neurologically intact with no evidence of atrophy. The report further stated that x-rays of the lumbrosacral spine revealed a minimal compression fracture of L-l and that claimant suffered chronic lumbrosacral strain. Dr. Obade also evaluated claimant’s residual functional capacity. He found claimant was able to walk for six hours, and stand and sit for four hours each. Claimant could lift up to 10 pounds and operate controls with his hands but not with his feet. Finally, Dr. Obade found that claimant could not bend or stoop at all and could only occasionally climb stairs, but could use his hands for pushing, pulling and gross and fine manipulations. Dr. Obade then concluded that claimant was capable of performing sedentary work. (Tr. 88). Relying upon Dr. Obade’s belief that claimant was capable of performing sedentary work, and upon claimant’s testimony and demeanor at the hearing, the ALJ decided that claimant retained the residual functional capacity to do sedentary work. As aforementioned, once claimant demonstrates an inability to return to his former job, benefits cannot be denied unless the Secretary establishes claimant is capable of engaging in alternative substantial" }, { "docid": "17456911", "title": "", "text": "warrants less weight than a review given by a physician such as Dr. Patrick who has a more longstanding relationship with Arruda and a more in depth knowledge of her ailments. See 20 C.F.R. §§ 404.1527(d)(2)(i) & 416.927(d)(2)® (“the more times you have been seen by a treating source, the more weight we will give to the source’s medical opinion”). In addition, Dr. Stern’s two page letter to Dr. Patrick wherein he notes that Arruda “walked slowly but steadily” and had normal power in her lower extremities (Tr. 273-274) contravenes his assessment in the physical capacity evaluation form that she could never lift or carry even up to five pounds of weight. (Tr. 267); see 20 C.F.R. §§ 404.1527(d)(2)-(4) & 416.927(d)(2)-(4). Dr. Stern’s conclusions relative to the inability to sit, stand and walk are also inconsistent with the report itself which, as the ALJ recognized, only characterizes Arruda’s pain as “moderate” as opposed to “severe.” (Tr. 268). Finally, Dr. Stern’s physical capacity evaluation form is a brief list of checked answers to form questions unaccompanied by explanation. See 20 C.F.R. §§ 404.1527(d)(3) & 416.927(d)(3) (“[t]he better an explanation a source provides for an opinion, the more weight we will give to that opinion”); see also Mason v. Shalala, 994 F.2d 1058, 1065 (3rd Cir.1993) (characterizing the reliability of “ ‘residual functional capacity reports’ ” that “ ‘are unaccompanied by thorough written reports’ ” as “ ‘suspect’ ”); Berrios Lopez v. Secretary of Health and Human Services, 951 F.2d 427, 431 (1st Cir.1991) (providing greater credence to consulting non-examining physician’s report given the greater detail than was typical for such reports). Similarly, Dr. Patrick’s checked answers on the January 2002 physical capacity evaluation form that Arruda can never bend, squat, kneel or crawl or sit, stand or walk for more than one hour (Tr. 323) differs from her treatment notes. See 20 C.F.R. §§ 404.1527(d)(2)-(4) & 416.927(d)(2)-(4). Although, like Dr. Stern (Tr. 267), she circles answers indicating that Arruda lacks the ability to sit, stand or walk in an eight hour work day (Tr. 209 & 323), Dr. Patrick’s treatment notes" }, { "docid": "22271233", "title": "", "text": "teacher of the blind and deaf or as a teacher’s aide as that work was actually performed by her. Third, the ALJ found that there was other work in the national economy, including that of an education assistant II as that work was ordinarily performed, that Hacker could do notwithstanding her disabilities. The record does not support this view. Accordingly, I would remand to the district court with directions to remand to the Commissioner to award benefits. It is well settled that a treating source’s opinion is to be given controlling weight if the opinion is well supported by medically accepted clinical and laboratory diagnostic techniques and is consistent with other substantial evidence. 20 C.F.R. § 404.1527(d)(2). Here, Dr. Simon Mittal of the Mayo Clinic and Dr. Samuel Yue of the Bethesda Pain Center, both treating physicians, stated that Hacker was unable to work. Dr. Mittal treated Hacker from July 17, 2000 through 2003. In October of 2002, Dr. Mittal completed a residual functional capacity questionnaire based on his numerous examinations of Hacker. He reported that Hacker could lift ten pounds occasionally, sit for six hours of an eight-hour day, and stand or walk for two hours of an eight-hour day, but would need to change positions on a frequent basis and would frequently need to take unscheduled breaks, lasting 20 to 30 minutes, during the course of an eight-hour work day. He further stated that Hacker would be limited to low stress jobs, and would frequently experience pain or other symptoms severe enough to interfere with her attention and concentration. Lastly, Dr. Mittal opined that Hacker’s impairments would cause good and bad days, and she would be absent from work more than four times per month. (Admin. R. at 488-93.) On March 10, 2004, Dr. Mittal completed a second residual functional capacity questionnaire. He diagnosed Hacker as having fibromyalgia, colitis, and depression and stated that she was not a malingerer. Dr. Mittal also reported that Hacker could lift ten pounds occasionally and would be able to stand and walk for two hours of an eight-hour day, and sit six" }, { "docid": "22182219", "title": "", "text": "his wife, and his treating physician, Dr. Liebman. In addition, reports were submitted by four consulting physicians. The ALJ set forth extensively the evidence he considered, which may be summarized briefly as follows. According to Dr. Liebman, the treating physician, his examinations revealed spasm throughout the lumbosacral spine with significant tenderness and restriction of movement. He estimated that Ferraris could walk only one to two blocks before resting, after which he possibly could walk another one to two blocks. Standing was limited to one and a half hour periods, separated by half hour rest periods. Sitting in one place was limited to one to two hours, followed by twenty minutes of movement before he could sit again. He could lift no more than one or two pounds at a time, and that only occasionally. Ferraris’ ability to bend, according to Dr. Liebman, was almost non-existent. In March 1978, Ferraris was examined by Dr. Irwin Nelson, a consulting physician designated by the Secretary. In his opinion Ferraris could sit, stand, walk, push and pull within “normal limits” for his age, provided he wore a lumbosacral support. Dr. Nelson did not elaborate on what are the “normal limits” for Ferraris’ age. In October 1978, Ferraris was examined by another consulting physician, Dr. Irwin Miller. Dr. Miller found mild restrictions of movement and concluded that Ferraris could walk for eight to ten blocks, stand for half hour periods at a time, lift up to five pounds, sit for “prolonged periods of time”, and bend only infrequently. He did not specify what constitutes “prolonged periods of time”. After Ferraris’ hearing on May 21, 1980 before the ALJ, the latter arranged for consultative examinations by a neurologist and an orthopedist. Dr. Leon Bernstein, the orthopedist, was of the opinion that, during the course of an eight hour work day, Ferraris could sit, stand and walk for three hours at a time; that his ability to lift was limited to five pounds; and that bending, climbing and reaching of any sort could be done only occasionally. Dr. Lewis Wiener, the neurologist, after examining Ferrar- is, concluded" }, { "docid": "8253034", "title": "", "text": "evidence.” Shaw, 221 F.3d at 134; see 20 C.F.R. § 404.1527(d)(2). In determining what weight to give a treating physician’s opinion, the Commissioner must consider: (1) the length, nature and extent of the treatment relationship; (2) the frequency of examination; (3) the evidence presented to support the treating physician’s opinion; (4) whether the opinion is consistent with the record as whole; and (5) whether the opinion is offered by a specialist. 20 C.F.R. § 404.1527(d). Further, the ALJ must articulate his reasons for assigning the weight that he does accord to a treating physician’s opinion. Shaw, 221 F.3d at 134; see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) (“[fjailure to provide good reasons for not crediting the opinion of a claimant’s treating physician is a ground for remand.”) (internal quotations omitted). On December 29, 2004, Dr. Zeidman completed a lumbar spine impairment questionnaire. He diagnosed plaintiff with lumbar disc degeneration and cervical disc herniation with myelopathy. Plaintiffs prognosis was guarded. (Tr. 339). Plaintiff had a limited range of motion in the neck and back to 20 degrees, tenderness in the neck and back, neck and back muscle spasms, abnormal gait, and intermittent arm and leg weakness. (Tr. 339-340). Dr. Zeidman opined that plaintiff could sit, stand and walk continuously for less than one hour in an 8-hour workday, and moreover needed to rise and move around every 10-15 minutes when sitting. (Tr. 342). Plaintiff was limited to lifting and carrying up to 5 pounds occasionally. (Tr. 342). Dr. Zeidman noted that plaintiffs pain and other symptoms frequently interfered with his attention and concentration, and reduced his ability to keep his neck in a constant position, rendering him incapable of a job that required him to look continuously at a computer screen or down at a desk. (Tr. 344). Plaintiff also needed to avoid temperature extremes, humidity and heights, and was unable to push, pull, kneel, bend or stoop. (Tr. 344). Dr. Zeid-man opined that plaintiff was therefore unable to work at that time, noting that his answers to the questionnaire were based upon plaintiffs own report. (Tr." }, { "docid": "22251260", "title": "", "text": "relevant work was offered by Bauzo herself. Bauzo reported that her former job as a sewing machine operator required sitting eight hours a day, with constant reaching and occasional bending. She also stated that her work as a punch press operator required reaching and bending and eight hours of sitting or eight hours of standing depending on her job assignment. Both jobs were factory positions with rigid time and speed requirements. The Appeals Council did not question Bauzo’s statements that her past relevant work required eight hours of sitting or standing. The only physician to address the issue of whether Bauzo could return to her past relevant work or to indicate Bauzo’s capabilities was Dr. Javier, who believed she would be unable to return to her past work because she was unable to lift over ten pounds or to sit, stand or walk for prolonged periods. The only other evidence of Bauzo’s capabilities is her own testimony. No other physician provided any medical findings concerning the impact of Bauzo’s impairments on her residual capabilities. Thus, this is not a case in which the consulting physician’s findings conflict with those of the treating physician; Dr. Bacalla made no finding as to the level of disability attributable to Bauzo’s impairments. Compare Stephens, 766 F.2d at 288-89. Nevertheless, her report is not inconsistent with either Dr. Javier’s findings or Bauzo’s claim of back and leg pains. The Appeals Council found that while Bauzo could lift and carry up to twenty pounds, she should avoid frequent bending and constant standing or walking. In reaching this conclusion, the Appeals Council completely disregarded Bauzo’s testimony that her past relevant work as a punch press operator sometimes required eight hours of standing. Moreover, it failed to mention at all the finding that Bauzo was unable to sit for long periods. There is nothing in the record to indicate that Bauzo can sit for prolonged periods. Dr. Bacalla’s report established only the bare medical facts of Bauzo’s condition. “Neither the Appeals Council nor this court is qualified to make [a] medical judgment about residual functional capacity based solely" }, { "docid": "6852791", "title": "", "text": "to prevent further episodes of emboli. She is incapacitated [and] unable to work due to above conditions. (Tr. 382.) Dr. Cesar A. Vera, who has also served as plaintiffs treating physician since October 1986, submitted his own RFC report dated January 24,1989. Dr. Vera’s assessment was somewhat different from that indicated in Dr. Smarth’s most recent report. Dr. Vera opined that plaintiff’s prognosis was “fair,” that she could sit continuously for two hours and up to four hours in an eight-hour day, stand continuously for 30 to 60 minutes and up to two hours in an eight-hour day, and walk continuously for 10 to 15 minutes and up to one hour in an eight-hour day. (Tr. 387.) Dr. Vera stated that plaintiff could occasionally lift and carry up to five pounds, and could occasionally bend, squat and climb. In his view, plaintiff could not crawl, but could frequently reach, and could also do simple grasping and fine manipulation with both hands. Dr. Vera noted that plaintiff had total restrictions with respect to unprotected heights, moving machinery and driving, and that she had moderate restrictions regarding exposure to marked changes in temperature and humidity, as well as dust, fumes and gases. (Tr. 388.) Additional reports in the record prepared by the Secretary’s consultative physicians did not provide any RFC assessment of plaintiff. A Dr. Henriquez examined plaintiff on December 28, 1984 and noted that she suffered from rheumatic heart disease and shortness of breath on moderate exercise. (Tr. 178.) Dr. Henriquez concluded that she had a history of mitral stenosis and epilepsy and a history of cerebrovascular accidents “with no residual damage.” (Tr. 181.) A Dr. C. Sharma performed a neurological examination of plaintiff on January 7, 1985 and found normal muscle strength in both her upper and lower extremities, with no atrophy, normal reflexes and coordination and no sensory deficits. He concluded that plaintiff did not suffer from any neurological deficit or disability. (Tr. 186.) Finally, Dr. Dae Sik Roh conducted an orthopedic examination of plaintiff on April 24, 1985. Dr. Rho reported a full range of motion in both" }, { "docid": "22270567", "title": "", "text": "the opinion of [claimant’s] physician ... but made no effort to do so”). Moreover, neither of the reports submitted by the Secretary’s doctors mentions nesidioblastosis, the type of organic hypoglycemia of which Doctors Nash and Hadda, the treating physicians, indicated Bluvband suffered. The only aspects of the consulting doctors’ reports that contradicted Dr. Nash’s opinion were the evaluations of Bluvband’s residual functional capacity. Yet, these evaluations were completed after the Secretary’s consulting physicians had examined Bluvband on only one occasion. In contrast, Dr. Nash had developed his opinion after treating Bluvband on a regular basis, often every two weeks, for five years. See Rosa v. Weinberger, 381 F.Supp. at 380. Moreover, it is the function of the AU to determine questions of fact where there is conflicting evidence. Herein, Bluvband testified that she could not bend down to put on her stockings due to her hernias and excessive weight. Of course, the AU did not have to accept Bluvband’s testimony. Yet, “he would normally be expected to note his rejection of it in whole or part.” Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 643 (2d Cir. 1983); Ferraris, 728 F.2d 582, at 587 (“[w]e ... do not suggest that every conflict in a record be reconciled by the AU or the Secretary, ... but we do believe that the crucial factors in any determination must be set forth with sufficient specificity”) (citation omitted). Without indicating whether he found Bluvband’s testimony credible or incredible, the AU accepted the consulting physicians’ conclusion that she occasionally could bend, squat, crawl and climb. Similarly, Bluvband testified that she could not sit for longer than one hour at a time because her back would hurt. The AU, however, without stating that he rejected Bluvband’s statements, accepted the evaluation of Dr. Wilchfort that she could sit for eight hours in an eight hour day, and of Dr. Strassberg that she could sit for six hours in an eight hour day. Furthermore, even though Bluvband testified that she could only lift very light objects weighing up to half a pound, and even though" }, { "docid": "22182218", "title": "", "text": "residual work capacity, the Secretary must consider objective medical facts, diagnoses and medical opinions based on such facts, and subjective evidence of pain or disability testified to by the claimant or others. Carroll, supra, 705 F.2d at 642; Parker v. Harris, 626 F.2d 225, 231 (2 Cir.1980); Marcus v. Califano, 615 F.2d 23, 26 n. 2 (2 Cir.1979). In particular, the Secretary is required to give considerable— and if uncontradicted, conclusive — weight to the expert opinions of the claimant’s own treating physicians. Donato v. Secretary of the Department of Health and Human Services of the United States, 721 F.2d 414, 419 (2 Cir.1983); Carroll, supra, 705 F.2d at 642; Aubeuf v. Schweiker, 649 F.2d 107, 112 (2 Cir.1981); Parker, supra, 626 F.2d at 231. Moreover, in making any determination as to a claimant’s disability, the Secretary must explain what physical functions the claimant is capable of performing. Kerner v. Flemming, 283 F.2d 916, 921 (2 Cir.1960); Deutsch v. Harris, 511 F.Supp. 244, 249 (S.D.N.Y.1981). In Ferraris’ case, the ALJ heard testimony of Ferraris himself, his wife, and his treating physician, Dr. Liebman. In addition, reports were submitted by four consulting physicians. The ALJ set forth extensively the evidence he considered, which may be summarized briefly as follows. According to Dr. Liebman, the treating physician, his examinations revealed spasm throughout the lumbosacral spine with significant tenderness and restriction of movement. He estimated that Ferraris could walk only one to two blocks before resting, after which he possibly could walk another one to two blocks. Standing was limited to one and a half hour periods, separated by half hour rest periods. Sitting in one place was limited to one to two hours, followed by twenty minutes of movement before he could sit again. He could lift no more than one or two pounds at a time, and that only occasionally. Ferraris’ ability to bend, according to Dr. Liebman, was almost non-existent. In March 1978, Ferraris was examined by Dr. Irwin Nelson, a consulting physician designated by the Secretary. In his opinion Ferraris could sit, stand, walk, push and pull within “normal" }, { "docid": "710851", "title": "", "text": "stated that he had difficulty getting dressed and that he was unable to do minor household chores such as carrying groceries, gardening, or other tasks that require bending (Tr. at 86, 107, 103). In addition to Rivera’s testimony, the AU received into evidence a number of medical reports from Dr. Michael H. Kamalian, Rivera’s treating physician, Dr. G. Michael Croker, Rivera’s chiropractor, and two unidentified consulting physicians retained by the SSA. In reports dated October 26, 1983, and November 10, 1983, Dr. Kamalian diagnosed Rivera’s condition as a herniated disc in his lower back. In his report of October 26, 1983, he described Rivera as “totally disabled” (Tr. at 110), and in his report of November 10, 1983, he opined that Rivera had a “chronic low back disorder” and a “permanent partial disability” (Tr. at 118). Dr. Kamalian issued an updated report on February 13, 1984, in which he stated that Rivera had acute para-spinal muscle spasm with radiculopathy (Tr. at 120). He concluded that Rivera was “still disabled at [that] time” (Id.). In response to a request from the SSA, Dr. Kamalian assessed Rivera’s residual functional capacity in a report dated April 16, 1984. He indicated that Rivera could occasionally lift up to five pounds, could do no substantial carrying at all, could sit no more than four hours in the course of an eight-hour day, could not stand for even one hour in the course of an eight-hour day, and could not walk more than two hours in the course of an eight-hour day (Tr. at 129). Dr. Kamalian stated that Rivera could reach frequently and bend or squat occasionally, but could not crawl or climb (Id.). In a report issued one week later, April 23, 1984, Dr. Kamalian reiterated that Rivera’s working capabilities were limited, but suggested that Rivera “could ... be rehabilitated to do a sedentary type of job” (Tr. at 131). Dr. G. Michael Croker, a chiropractor who treated the claimant once or twice a month from January 1982 to January 1984 (Tr. at 36, 111), provided additional analytical reports. Dr. Croker diagnosed Rivera’s condition" }, { "docid": "710862", "title": "", "text": "sedentary work. He indicated that Rivera could not stand for even one hour in an eight-hour day, that he could not walk more than two hours in an eight-hour day, and that he could not sit for more than four hours in an eight-hour day (Tr. at 129). Since a claimant must be able to do at least some occasional standing and walking and must be able to sit for at least six hours in an eight-hour day in order to be considered capable of performing sedentary work, see Ferraris v. Heckler, 728 F.2d 582, 587 & n. 3 (2d Cir.1984); Mazzella v. Secretary of U.S. Dep’t of Health & Human Servs., 588 F.Supp. 603, 607 (S.D.N.Y.1984); Keppler v. Heckler, 587 F.Supp. 1319, 1322 (S.D.N.Y.1984), it is difficult to understand how the AU could have interpreted Dr. Kamalian’s findings as an indication that Rivera could perform sedentary work. Instead, Dr. Kamalian’s reports are clear evidence that Rivera is unable to engage in any substantial gainful activity. Moreover, as the findings of a treating physician, Dr. Kamalian’s conclusions are binding on the Secretary absent substantial evidence to the contrary. Bastien v. Califano, 572 F.2d at 912; Gold v. Secretary of Health, Educ. & Welfare, 463 F.2d 38, 42 (2d Cir.1972). No substantial evidence exists in the record that could justify disregarding Dr. Kamalian’s findings. The AU noted that the two consulting physicians had found that Rivera could sit and stand for six hours in an eight-hour day, and that in their view, he was capable of performing medium level work (Tr. at 8). However, [t]he law is clear that the opinion of a physician who has never treated or examined the claimant is entitled to little weight, and generally cannot serve as substantial evidence supporting a finding of nondisability when the record contains detailed contradictory opinions by physicians who have examined the claimant. Ceglia v. Schweiker, 566 F.Supp. 118, 124 (E.D.N.Y.1983); see also Allen v. Weinberger, 552 F.2d 781 (7th Cir.1977); Landess v. Weinberger, 490 F.2d 1187 (8th Cir.1974); Browne v. Richardson, 468 F.2d 1003 (1st Cir.1972); Gudlis v. Califano, 452" }, { "docid": "22068020", "title": "", "text": "stand, walk, or sit eight hours, lift up to 50 pounds and lift or carry up to 25 pounds frequently, and bend, squat, crawl, climb, and reach above shoulder level occasionally. Dr. Medina found no functional limitations on claimant’s use of his hands, but found that claimant could not use his left leg for repetitive movements such as operation of foot controls. Dr. Medina’s findings established that claimant’s exertional impairments did not preclude him from performing sedentary work, which is defined in the Social Security regulations as follows: “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.\" 20 C.F.R. § 404.1567(a). Although other medical evidence in the record conflicted with Dr. Medina's conclusions, the resolution of such conflicts in the evidence is for the Secretary. We must affirm the Secretary's resolution, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence. Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir.1981). We have no basis on which to question the Secretary's decision not to credit the medical findings of two treating physicians, Dr. Davila and Dr. Felix, that claimant's exertional impairments disabled him or substantially restricted his functional capacity. The Secretary assessed the reports of both physicians and reasonably concluded that they relied excessively on claimant's subjective complaints, rather than on objective medical findings. The opinions of Dr. Davila and Dr. Felix are not entitled to greater weight merely because they were treating physicians, whereas Dr. Medina was a consulting physician. Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir.1982); Perez v. Secretary of Health, Education and Welfare, 622 F.2d 1 (1st Cir.1980). Nor is the Secretary bound to accept Dr. Felix's evaluation of claimant's leg condition merely because" }, { "docid": "22271238", "title": "", "text": "The ALJ, however failed to point out why the treating physicians’ conclusions were not medically acceptable and how they were inconsistent with the record. Indeed, the record is replete with reports from other treating physicians at the Mayo Clinic and elsewhere that fully support the conclusions reached by Drs. Mittal and Yue. Instead of relying on the testimony of the treating physicians, the ALJ relied on the testimony of Dr. Andrew Steiner, who never examined Hacker and whose opinion was based solely on a review of the medical record. Thus, while it can be considered, it should not be given controlling weight in this case where the opinions of the treating doctors are fully supported by the record and are not only consistent with each other, but are also consistent with the numerous other doctors who treated Hacker. With respect to Dr. Steiner, I certainly do not question his medical qualifications. The facts are, however, that he did not examine the entire record. Moreover, he expressed no opinion as to whether Hacker, in light of all of her disabilities, which include fibromyalgia, colitis, and depression, would be able “to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc). He simply reported that she could lift twenty pounds occasionally, ten pounds frequently, stand or walk six hours in an eight-hour day, and sit two hours in an eight-hour day-a basic recitation of the limitations noted by Hacker’s treating physicians. He expressed no opinion on the issues that Drs. Mittal and Yue found disabling: whether the combination of her disabilities would cause her to miss at least four days per month, which the vocational expert stated clearly would prohibit her from doing her past relevant work or any other work in the national economy. The ALJ stated that Dr. Steiner’s opinion is consistent with that of Dr. C.T. Bessent. (Admin. R. at 532.) The ALJ writes that Dr. Bessent, who is also a non-treating," } ]

[ { "docid": "1218295", "title": "", "text": "which Treviño was exposed during Hartford’s policy period. In another context, which was employees’ sexual molestation of minors, this circuit expressed its agreement with the Seventh Circuit’s conclusion that “ ‘continuous or repeated exposure to conditions’ sounds like language designed to deal with asbestos fibers in the air, or lead-based paint on the walls, rather than with priests and choirboys.” In the case before us, most if not all of the alleged negligence involved acts or omissions of caregivers, not the conditions of the nursing home’s facilities or the ambient air. The Supreme Court of Texas contrasted the typical “occurrence” language that includes “continuous or repeated exposure to substantially the same general conditions” with language tailored to fit circumstances health care providers face: The APIE policy language that defines the scope of “Each Claim Occurrence” to include “[a] series of acts or occurrences,” is apparently intended to have a coverage effect similar to the “continuous or repeated exposure” unifying directive in commercial liability policies— but in a manner that is meaningful in the medical context. For example, medical malpractice frequently involves an operation or an extended course of treatment. A malpractice event may involve numerous independent grounds of negligence that cannot be unified as “repeated exposure to substantially the same conditions,” but that nevertheless constitute “a series of acts or occurrences” that are related and form a single malpractice claim. The “numerous independent grounds of negligence” that were alleged to have occurred throughout Treviño’s stay at the nursing home “cannot be unified as ‘repeated exposure to substantially the same conditions.’ ” The acts and omissions that caused Treviño’s Stage TV pressure sore, pneumonia, and other injuries that allegedly resulted in her death are divisible from the acts and omissions and Trevi-ño’s resulting injuries during Hartford’s policy period. Within Caliber One’s policy period, however, its policy limit is nevertheless $1,000,000 for the various acts of negligence and the corresponding injuries because its insured, Methodist, had only one claim for indemnity for the damages Trevi-ño’s family sought. The Caliber One policy provided that “regardless of the number of ... Insureds ... the" } ]

[ { "docid": "7228057", "title": "", "text": "The facts alleged in the third-party complaint and those facts known to the insurer determine the scope of the insurer’s duty to defend. Id. Accordingly, “some courts refer to the standard as the ‘pleadings test.’ ” Century Indem. Co. v. Liberty Mut. Ins. Co., 708 F.Supp.2d 202, 208 (D.R.I.2010) (applying Massachusetts law). Indeed, the application of the pleadings test for determining the duty to defend is based on the facts as they are alleged, not the facts as they are. See Liberty Mut. Ins. Co. v. SCA Servs. Inc., 412 Mass. 330, 588 N.E.2d 1346, 1349 n. 4 (1992). There may be an undoubted duty to defend, where there is only a negligible duty to indemnify. See Century Indem. Co., 708 F.Supp.2d at 213. The Court, therefore, determines whether, under Massachusetts law, the allegations in the Commonwealth Complaint are reasonably susceptible of an interpretation that (1) the resulting damage triggered coverage under the Century Primary Policy and (2) the pollution exclusion does not completely bar potential coverage. 1. Triggering Occurrence The Century Primary Policy obligates Century to defend any “suit against the Insured seeking damages on account of ... property damage.” (Lechliter Decl. Ex. 1 at D-264788.) “Property damage” is defined as “(1) physical injury to or destruction of tangible property which occurs during the policy period .... ” (Id. at D-264780.) “The contamination of soil and groundwater by the release of hazardous material involves property damage.” Hazen Paper Co. v. U.S. Fidelity & Guar. Co., 407 Mass. 689, 555 N.E.2d 576, 582 (1990). In order to trigger coverage, the Century Primary Policy further requires that such property damage be caused by an occurrence. Under the Century Primary Policy an “occurrence” is “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.” (Lechliter Deck Ex. 1 at D-264780.) Even if an act was intentional, an “occurrence” may still be covered if “the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur.” Quincy" }, { "docid": "732305", "title": "", "text": "that which arises out of any Advertising activities. * * * * * * 5. OCCURRENCE The term ‘occurrence’ wherever used herein shall mean an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally results in personal injury ... during the policy period. All such exposure to substantially the same general conditions existing at or emanating from one premises location shall be deemed one occurrence. 6. ULTIMATE NET LOSS The term ‘Ultimate Net Loss’ shall mean the total sum which the Insured, or any company as his insurer, or both, become obligated to pay by reason of personal injury ... claims, either through adjudication or compromise, and shall also include hospital, medical and funeral charges and all sums paid as salaries, wages, compensation, fees, charges and law costs, premiums on attachment or appeal bonds, interest, expenses for doctors, lawyers, nurses and investigators and other persons, and for litigation, settlement, adjustment and investigation of claims and suits which are paid as a consequence of any occurrence covered hereunder, excluding only the salaries of the Insured’s or of any underlying insurer’s permanent employees.” By their terms, the policies cover Schering’s excess liability for personal injuries “caused by or arising out of each occurrence.” The contractual definition of “occurrence”, then, which essentially adopts the text of the standard CGL policy drafted in 1966 by the Mutual Insurance Rating Bureau and the National Bureau of Casualty Underwriters, is at the heart of this litigation. The parties do not dispute and there can be no question that the occurrence clause requires indemnification when personal injury — not the causative event— “results” during the policy period. Therefore, prenatal exposure to dienestrol, the event from which dienestrol-related injury necessarily arises, cannot trigger coverage under Home’s policies. Rather, to activate Home’s contractual obligation, an injury must be caused by or arise from exposure. In this regard, the Court finds inapposite decisions construing CGL policies in the context of asbestos-related diseases. See, e.g., Eagle-Picher Indus., Inc. v. Liberty Mut. Life Ins. Co., 682 F.2d 12 (1st Cir. 1982); Keene Corp." }, { "docid": "2220987", "title": "", "text": "than the phrase “sudden and accidental”. That definition does not absolutely preclude coverage for any and all gradual pollution. The only other court to have construed in a reported decision the London defendants’ exclusion reached the same conclusion. See Time Oil Co. v. CIGNA Property & Cas. Ins. Co., 743 F.Supp. 1400, 1407-08 (W.D.Wash.1990). Therefore, the London defendants’ motion for summary judgment will be denied. B. Grace’s Cross-Motion On the Pollution Exclusions in the Post-1971 Policies By cross-motion, Grace seeks a declaration that the pollution exclusions in all of the excess insurance policies bar coverage only when the policyholder expected and intended the injury caused by the release of pollutants. Its argument is based primarily on dicta in Broadwell Realty Servs., Inc. v. Fidelity & Cas. Co., 218 N.J.Super. 516, 528 A.2d 76 (App.Div.1987), and will be rejected. The policies in issue provide coverage for damage that results from “occurrences.” “Occurrence” is an insurance industry term with well-defined meaning. Several variations of the definition are involved in this case. The Maryland Casualty primary policies define occurrence to mean: either an accident, event or continuous or repeated exposure to conditions which result during the policy period in injury to or destruction of ... property ... which is accidentally caused. The Continental primary policies define occurrence as: either an accident, event or continuous or repeated exposure to conditions which unintentionally causes injury to or destruction of property. Another variation in some of the excess insurance policies defines occurrence as: (A) an accident, or a happening (B) an event, or continuous or repeated exposure to conditions, which unexpectedly results in ... property damage ... during the policy period. These definitions unambiguously convey that damage which is expected, intended or not accidental is not covered by the policies in which they are included. By contrast, the pollution exclusion clearly and unambiguously places the focus of the policyholder’s expectation or intention not on the resulting “damage”, but on the “discharge, dispersal, release or escape” of the pollutants. Thus, as the Third Circuit recently stated in New Castle County v. Hartford Accident & Indemnity Co., 970" }, { "docid": "5698344", "title": "", "text": "at several facilities, at different times and for varying lengths of time, Fina argues that the claimants were not exposed “to substantially the same general conditions,” and that the continuous exposure clause is inapplicable. Because there is not one unifying or continuing cause, Fina argues that each claimant’s exposure to asbestos constitutes a separate occurrence. The Court finds that the claimants’ alleged injuries were caused by exposure to asbestos. Travelers’ argument that Fina’s “failure to protect” was the sole cause and occurrence is unpersuasive. Under the Policy, an occurrence is defined as an “accident.” An accident is typically defined as an event that takes place unexpectedly and vhthout design. See, e.g., BLACK’S LAW DICTIONARY 15 (6th ed.1990). The Court fails to see how a “failure to protect” constitutes an “event” that occurred “unexpectedly.” A failure to protect implies that Fina knew of the dangers of asbestos, but chose .to do nothing, which is more akin to a conscious decision than an accident. Likewise, it is difficult to accept the contention that a failure to protect was a “condition” to which all claimants were repeatedly or continuously “exposed.” Such an interpretation places considerable strain on the plain and ordinary meaning of the terms “condition” and “exposure.” See Metropolitan Life Ins. Co. v. Aetna Cas. & Surety Co., 255 Conn. 295, 765 A.2d 891, 898-900 (2001) (rejecting contention that a negligent failure to warn was cause of asbestos-related injuries; finding that exposure to asbestos was cause). Finally, it is clear that, absent exposure to asbestos, there would have been no injuries and, thus, no basis for a suit against Fina. See also Commercial Union Ins. Co. v. Roberts, 7 F.3d 86, 89-90 (5th Cir.1993) (applying Texas law) (finding that negligent failure to obtain treatment for pedophilia condition was not cause of injury; rather, acts of molestation were cause of injury, triggering liability). Accordingly, the Court finds that the “occurrence” in this case was exposure to asbestos. Having determined that the cause of the claimants’ injuries was exposure to asbestos, the Court must next decide whether each claimant’s exposure to asbestos constitutes a" }, { "docid": "9721546", "title": "", "text": "at the McKin site. The Maine SJC explained that an insurer’s duty to defend is properly determined through a “comparison test,” in which the insurance policy is laid alongside the underlying damage complaints to determine whether the pleadings are adequate to encompass an occurrence within the coverage of the policy. Dingwell, 414 A.2d at 224 (citing American Policyholders Insurance Company v. Cumberland Cold Storage Company, 373 A.2d 247, 249 (Me. 1977)). The Court also noted: [T]he pleading test for determination of the duty to defend is based exclusively on the facts as alleged rather than on the facts as they actually are. “[T]he duty to defend is broader than the duty to pay or indemnify ... [T]he duty to indemnify, i.e., ultimate liability, depends ... upon the true facts.” Id. (quoting Cumberland Cold Storage, 373 A.2d at 249-50) (citations omitted). In Dingwell, as in this case, the insurance policies extended coverage to property damage caused by an “occurrence,” where “occurrence” was defined as “an accident, including continuous or repeated exposure to conditions, which results in personal injury, property damage or advertising liability neither expected nor intended from the standpoint of the insured.” 414 A.2d at 223; see supra note 5. Also, two of the insurers’ policies contained “pollution exclusion” clauses and an exception to the “pollution exclusion” where the “discharge, dispersal, release or escape is sudden and accidental,” using identical language to the Aetna policies at issue here. The insurers argued that the pollution exclusion provisions relieved them of any duty to defend the class action. The Court held, however, that a count alleging that the contamination resulted from Dingwell’s negligence generated a duty to defend, “because it discloses a potential for liability within the coverage and contains no allegation of facts which would necessarily exclude coverage.” In applying the “comparison test” in Dingwell, the Maine SJC determined that the Superior Court erred in relying on the allegations that contaminants “permeated the ground” and “spread in the water table” to contradict claims that the pollution was “sudden and accidental.” Rather, the court held: “The behavior of the pollutants in the" }, { "docid": "12511571", "title": "", "text": "Co. v. Kiger, 662 N.E.2d 945 (Ind.1996), Erie included that reservation of rights only as a precaution to protect its rights in the event that Indiana law on the issue might change. Second, even if the law were to change so that the exclusion became enforceable, it is unlikely that the defense of the underlying lawsuit would affect the success of the coverage defense. If the alleged contamination of the groundwater was caused by chemicals released by the Armstrongs’ business, the pollution exclusion would appear to apply, at least if it were enforceable. In other words, the existence of the issue does not pose a significant risk that defense counsel’s representation of the Armstrongs would be impaired by counsel’s relationship with the insurer. The central dispute here concerns Erie’s reservation of rights based on the policy exclusion for “expected and intended” harms and the definition of “occurrences,” which present essentially the same problem. The Policy defines an “occurrence” as “an accident, including continuous or repeated exposure to the same general, harmful conditions.” Indiana courts faced with “occurrence” exclusions essentially identical to the one in the Policy have defined an “accident” as “an unexpected happening without an intention or design.” Auto-Owners Ins. Co. v. Harvey, 813 N.E.2d 1190, 1193 (Ind.App.2004); accord, Amerisure, Inc. v. Wurster Construction Co., 818 N.E.2d 998, 1004 (Ind.App.2004). Whether the alleged contamination constituted an “occurrence,” and thus is covered under the Policy, depends on whether the Armstrongs expected or intended the contamination. In the “expected or intended” exclusion, the terms “expected” and “intended” have different meanings. Intentional injury in the exclusion clause “contemplates the volitional performance of an act with an intent to cause injury, although not necessarily the precise injury or severity of damage that in fact occurs.” PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705, 728 (Ind.App.2004), quoting Sans v. Monticello Ins. Co., 676 N.E.2d 1099, 1102 (Ind.App.1997). Expected injury means “injury that occurred when the insured acted even though he was consciously aware that harm was practically certain to occur from his actions.... Consciousness of the likelihood of certain results occurring is" }, { "docid": "2282095", "title": "", "text": "workmanship, it is not caused by an accident.”); Indiana Ins. Co. v. Hydra Corp., 245 Ill.App.3d 926, 185 Ill.Dec. 775, 615 N.E.2d 70, 73 (1993) (no “occurrence” where the defects in the underlying complaint, “the cracks in the floor and the loose paint on the exterior of the building[,] are the natural and ordinary consequences of installing defective concrete flooring and applying the wrong type of paint”); Bituminous Cas. Corp. v. Gust K. Newberg Constr. Co., 218 Ill.App.3d 956, 161 Ill.Dec. 357, 578 N.E.2d 1003, 1010 (1991) (no “occurrence” where underlying complaint alleged faulty air conditioning system had been installed in state building because the allegations of extreme “temperatures in the building are no more than the natural and ordinary consequences of installing an inadequate HVAC system”). Precedent thus strongly supports the district court’s conclusion that the Owners’ allegations of defective work do not constitute an “accident” or “occurrence.” Despite this line of authority, however, there is some support for the position that negligently performed work or defective work can give rise to an “occurrence” in Illinois. In Prisco Serena Sturm Architects, Ltd. v. Liberty Mut. Ins. Co., 126 F.3d 886 (7th Cir.1997), we concluded that a construction manager’s negligent performance of its work resulted in an “occurrence.” Id. at 891. But that case relied on the fact that “occurrence” as defined by the policy included continuous or repeated exposure to conditions. The insured’s negligence in uncovering defects in the construction constituted “continuous or repeated exposure to substantially the same general harmful conditions,” and thus, an “occurrence.” Id.; see also Wilkin Insulation Co., 161 Ill.Dec. 280, 578 N.E.2d at 932 (“the continuous exposure of the buildings and their contents to released asbestos fibers” constituted an “accident” that resulted in “property damage”). In Country Mutual Insurance Co. v. Carr, which was the impetus for Lyerla’s supplemental summary judgment memorandum, homeowners sued a general contractor for allegedly negligently placing inappropriate backfill around the basement walls of their home and negligently operating equipment near those walls, resulting in damage to the basement walls and to other parts of the home. 311 Ill.Dec. 171," }, { "docid": "2859303", "title": "", "text": "pollution exclusion-unenforceable. Contract and Lease Claims In Count II of the Underlying Litigation, the plaintiffs alleged that CHA breached contracted and lease obligations to the plaintiffs. HARRG argues that it has no duty to defend CHA from these claims because they do not meet the definitions of “bodily injury” or “occurrence,” as set forth in the policies. (Memorandum of Points and Authorities in Support of Plaintiffs Motion for Judgment on the Pleadings (hereinafter “Pl.’s Mem.”), at 13.) According to the Policies, “ ‘Bodily Injury’ means bodily injury, sickness or disease, mental anguish or mental injury, sustained by a person, including death resulting from any of these at any time,” (See, e.g., 1988 Policy, at 6), while “ ‘Occurrence’ means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which causes ‘bodily injury’ or ‘property damage.’ ” (See, e.g., 1988 Policy, at 10.) HARRG cites Travelers Ins. Cos. v. P.C. Quote, Inc., in which the plaintiff, a general liability insurer won a declaration that it had no duty to defend the insured in a breach of contract action brought by an unpaid supplied. The P.C. Quote court addressed the question whether the breach of contract involved an “occurrence,” defined in the policy as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” 211 Ill.App.3d 719, 725, 156 Ill.Dec. 138, 570 N.E.2d 614, 618 (Ill. App. 1st Dist.1991). In P.C. Quote, the insured’s employee had ordered computers without authority, and the insured subsequently refused to pay for the computers, and the vendor sued the insured. Id. at 722, 156 Ill.Dec. 138, 570 N.E.2d 614. The court concluded that the breach of contract was “intentional,” not “accidental,” and thus did not constitute an “occurrence” so that the insurer had no duty to defend. Id. at 728, 156 Ill.Dec. 138, 570 N.E.2d 614. CHA points out that the complaints in the Underlying Litigation make no mention of whether CHA intentionally breached its leases with the plaintiffs. (See Aaron FAC ¶ 70.)" }, { "docid": "14959497", "title": "", "text": "to ascertain Reliance’s obligation to defend and indemnify it under the policy. The Reliance policy provides coverage for “those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage .... The bodily injury or property damages must be caused by an occurrence.” (Id. at 898.) “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Id. at 911.) The policy also contains numerous exclusions that excise coverage for specific harms caused by the insured. In particular, the policy removes coverage for any “bodily injury and property damage which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time” (hereinafter “the pollution exclusion”). (Id. at 892.) “Pollutants” are defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including, but not limited to, smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.” (Id.) The parties filed cross-motions for summary judgment in the District Court. The Court found that the pollution exclusion removed coverage for the plaintiffs’ injuries and that Devcon had no reasonable expectation of coverage for such harms because they were beyond the scope of coverage. Accordingly, the Court entered a declaratory judgment in favor of Reliance, finding that it had no duty to defend or indemnify Devcon for the injuries allegedly caused by V.I. Cement. Devcon filed this timely appeal. II. Discussion On appeal, Devcon argues that the scope of the pollution exclusion is ambiguous and that we must construe it to provide coverage for the harms in the underlying action. Alternatively, Devcon suggests that it reasonably believed that the insurance policy would provide coverage for construction-related harms such as those caused by dust and engine fumes, and it urges us to extend coverage under the doctrine of reasonable expectations. We address each of those arguments in turn. A. The Pollution Exclusion To establish insurance coverage, the insured bears the initial burden of showing that the harm described in the plaintiffs complaint potentially falls" }, { "docid": "1218293", "title": "", "text": "clean Treviño properly and to apply appropriate medication led to rashes. Other breaches of the standard of care allegedly led to a urinary tract infection. The alleged failure to supervise Treviño and properly secure her in her wheelchair caused bruises on her hands. Treviño suffered severe stomach pain that was ignored and could have been avoided or relieved. Nurses massaged damaged tissue, which was allegedly contrary to the standard of care, and caused Treviño to suffer skin tearing and pain. These breaches of the standard of care and the resulting injuries are divisible from the alleged acts of negligence that occurred a year later that caused pneumonia, and a massive, infected Stage TV pressure sore and resulting sepsis, leading to Treviño’s death. If Treviño’s injuries prior to those she sustained in the months preceding her death had been more severe, such as a broken arm on one occasion and a skull fracture a few months later, we would have no difficulty in concluding that these discrete injuries and their causes were divisible from the acts or omission that later caused the Stage IV pressure sore and other ailments occurring more than a year later. The fact that Treviño instead suffered rashes, bruises, pain, and infections in the year before she developed a severe pressure sore and other conditions does not alter the analysis. We note that the Hartford policy does not treat the acts and omissions leading to discrete injuries to Treviño that occurred when its policy was in effect as separate occurrences. Hartford’s policy provides that “any act or omission in the furnishing of professional health care services to any person ... together with all related acts or omissions in the furnishing of such services shall be considered one ‘medical incident.’ ” Caliber One’s policy provisions differ from Hartford’s. Caliber One’s policy defines an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions,” and Caliber One contends that the injuries Treviño sustained during its policy period were the result of “continuous or repeated exposure to substantially the same general harmful conditions” to" }, { "docid": "12409046", "title": "", "text": "280, 578 N.E.2d 926 (1991) governs here. The question in Wilkin Insulation was whether various insurers had a duty to defend against claims for property damage allegedly caused by a general contractor’s installation of asbestos insulation in school buildings. The policy defined “occurrence” very similarly to the way it had been defined in the appellate court cases cited by Liberty and the way it was defined here; namely, as “an accident, including continuous or repeated exposure to conditions which results in property damage ... neither expected nor intended from the standpoint of the insured.” 161 Ill.Dec. at 286, 578 N.E.2d at 932. The court found that “the continuous exposure of the buildings and their contents to released asbestos fibers” amounted to an “accident” that resulted in “property damage,” as defined by the policies. The fact that Wilkin intentionally installed the asbestos did not take its actions out of the policy because the court found that it was the contamination of the building that had to be unintentional and unexpected. Finding no hint in the complaint that Wilkin expected or intended to contaminate the building with toxic fibers, the court found a duty to defend. The claims against PSSA included allegations that its negligence in uncovering the defective work and its negligent certifications resulted in the incorporation of defective components into the building. The suit therefore tried to hold PSSA liable for the many defects in the building on the theory that its repeated negligent acts caused the harm to the School. From the School’s perspective, this was “continuous or repeated exposure to substantially the same general harmful conditions,” that is, PSSA’s allegedly careless or negligent oversight of the job. We agree with PSSA that this is very much like the situation in Posing v. Merit Ins. Co., 258 Ill.App.3d 827, 196 Ill.Dec. 335, 629 N.E.2d 1179 (3d Dist.1994), where a termite inspector was accused of negligently performing an inspection for the presence of those pests. His carelessness led to later termite damage to the claimants’ homes. When they sued, the insurer argued that there was no “occurrence,” because there had" }, { "docid": "1218296", "title": "", "text": "For example, medical malpractice frequently involves an operation or an extended course of treatment. A malpractice event may involve numerous independent grounds of negligence that cannot be unified as “repeated exposure to substantially the same conditions,” but that nevertheless constitute “a series of acts or occurrences” that are related and form a single malpractice claim. The “numerous independent grounds of negligence” that were alleged to have occurred throughout Treviño’s stay at the nursing home “cannot be unified as ‘repeated exposure to substantially the same conditions.’ ” The acts and omissions that caused Treviño’s Stage TV pressure sore, pneumonia, and other injuries that allegedly resulted in her death are divisible from the acts and omissions and Trevi-ño’s resulting injuries during Hartford’s policy period. Within Caliber One’s policy period, however, its policy limit is nevertheless $1,000,000 for the various acts of negligence and the corresponding injuries because its insured, Methodist, had only one claim for indemnity for the damages Trevi-ño’s family sought. The Caliber One policy provided that “regardless of the number of ... Insureds ... the Each Claim Limit is the most we will pay under Coverage P [professional liability] for the sum of ‘damages’ ... arising out of any one claim.” The reference to “any one claim” is to a claim by the insured, not the number of the underlying claims against the insured. The claims asserted in the Trevino family’s lawsuit against Methodist were not “a single claim involving indivisible injury,” and the rule set forth in the Supreme Court of Texas’s decision in American Physicians Insurance Exchange prohibiting “stacking” does not apply. This does not mean, however, that Royal is entitled to “stack” the limits in both primary policies before it is obligated to indemnify Methodist. Royal’s policy period did not overlap with Hartford’s. Coverage under the Hartford policy applied only to occurrences from April 1, 1997 through April 1, 1999. Hartford’s policy did not apply to the acts and omissions that occurred after April 1, 1999. Royal’s excess policy covered occurrences from April 1, 1999 through July 1, 2000. Royal’s policy provided that the “retained limit” that" }, { "docid": "1218291", "title": "", "text": "errors or omissions an insured is legally responsible. “Professional services” means nursing home services. The declarations page reflects that the “Professional Each Claim Limit” is $1,000,000, and the section addressing policy limits says that “the Each Claim Limit is the most we will pay under Coverage P [professional liability] for the sum of ‘damages’ ... arising out of any one claim” regardless of the number of insureds. Royal’s excess insurance policy was in effect from April 1, 1999 through July 1, 2000, and provides: I. Insuring Agreement 1. We will pay on behalf of the Insured those sums in excess of the “Retained Limit” which the Insured becomes legally obligated to pay as damages to which this insurance applies because of: (a) “Bodily injury” ... which occurs during the policy period and is caused by an “Occurrence”; Royal’s policy defines “Retained Limit” as “the total of the applicable limits of the ‘Underlying Insurance’ shown on the declaration page plus the applicable limits of any other insurance collectible by the Insured.” It defines “Occurrence” as “[a]n accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Another pertinent provision provides: 9. Loss Payments (a) We will have liability for any one “Occurrence” ... only when the amount of the “Retained Limit” with respect to such “Occurrence” has been paid by: (i) the Insured; (ii) us on behalf of the Insured (other than under this policy); or (iii) the Insured’s underlying insurer. In the Treviño family’s suit against Methodist and the five nurses employed at the nursing home, the live pleading at the time the case was settled focused on the last several months of Treviño’s life and the injuries and conditions leading to her death, all of which occurred during Caliber One’s policy period. However, considerable discovery was conducted in that case, and several experts presented reports. At least one expert opined that Methodist employees were negligent at different times during the period the Hartford policy was in effect and that this negligence caused discrete, although relatively minor, injuries to Treviño. An expert concluded that the failure to" }, { "docid": "23481905", "title": "", "text": "presents the question of what constitutes a separate “occurrence” under each of the five insurance policies. The Lloyd’s policy, which controls the liability of defendants American Home and Aetna, contains the following definition: The term “Occurrence” wherever used herein shall mean an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally results in personal injury, property damage or advertising liability during the policy period. All such exposure to substantially the same general conditions existing at or emanating from one premises location shall be deemed one occurrence. [Emphasis supplied.] The Travelers’ policy, which governs the liability of INA, contains a similar definition: “Occurrence” means as respects property damage 1) an accident or 2) continuous or repeated exposure to conditions which results in injury to or destruction of tangible property, including consequential loss resulting therefrom, while this agreement is in effect. All damages arising out of such exposure to substantially the same general conditions shall be considered as arising out of one occurrence. [Emphasis supplied.] The parties agree that the minor differences in the wording of these provisions are immaterial. Although the terms “event” and “happening” in the Lloyd’s policy may potentially be broader in scope than the term “accident,” the district court found, and the parties do not dispute, that the term “accident” encompasses the incidents which transpired here. 530 F.Supp. at 150 n. 2. Accordingly, we need not discuss whether the Lloyd’s policy provides wider liability coverage for property damage than does the Travelers’ policy. Second, the defendants have argued that the distribution of contaminated feed throughout Michigan was a continuous or repeated exposure to a general condition and that all such exposure constitutes one occurrence under the second sentence of both definitions. The district court disagreed and held that the farm animals were exposed to a product rather than to a general condition. The latter term was said to include only such things as the conditions within a manufacturing plant or the continuous emanation of pollution or other nuisance from such a plant. In light of our interpretation of the" }, { "docid": "14959496", "title": "", "text": "DPNR orders. Plaintiffs filed the underlying suit on April 6, 2001, advancing various nuisance-related claims. The plaintiffs amended their complaint several times, the final version of which sets forth claims against VI. Cement for nuisance, breach of the DPNR orders, trespass, negligence, and negligent and intentional infliction of emotional distress. B. The Pollution Exclusion And Proceedings In The District Court VI. Cement, acting through its parent company, Devcon, tendered defense of the plaintiffs’ claims to Reliance, which had issued a commercial general liability policy to Devcon. Reliance initially informed Devcon that “it is questionable whether the insurance policy provides coverage for any of [plaintiffs’] claims” because the policy excluded coverage for injuries resulting from pollution caused by VI. Cement. (App. at 689.) However, Reliance later agreed to defend Devcon pursuant to a reservation of rights letter under which Reliance asserted “the right to withdraw from the matter at any future date” if Reliance discovered that the plaintiffs’ injuries were outside the scope of the insurance policy. (Id.) Devcon then commenced the instant declaratory judgment action to ascertain Reliance’s obligation to defend and indemnify it under the policy. The Reliance policy provides coverage for “those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage .... The bodily injury or property damages must be caused by an occurrence.” (Id. at 898.) “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Id. at 911.) The policy also contains numerous exclusions that excise coverage for specific harms caused by the insured. In particular, the policy removes coverage for any “bodily injury and property damage which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time” (hereinafter “the pollution exclusion”). (Id. at 892.) “Pollutants” are defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including, but not limited to, smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.” (Id.) The parties filed cross-motions for summary judgment in" }, { "docid": "8851232", "title": "", "text": "use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. “Occurrence” is defined as: ... An accident, including continuous or repeated exposure to conditions which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured; Thus, generally speaking, the grant of insurance coverage in this policy extends coverage to those situations where there existed an occurrence which caused bodily injury or property damage. However, there were several exceptions made to this grant of coverage. One of these exceptions was where the damages in question were caused by pollution and the “discharge, dispersal, release or escape” of such pollutants was both unintentional and occurred gradually over time. The exception stated that the policy of insurance did not furnish coverage for (f) ... Bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gasses, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere of any water course or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. On September 26, 1984, Theodore D. Geisz-ler, Doreen Geiszler and Stephen M. Kaiser filed a complaint against CBGID in the Washoe County District Court. Also named as defendants in that proceeding were Incline Village General Improvement District and CH2M Hill. Although several distinct claims for relief were asserted, each claim was founded upon the same essential facts. It was the position of plaintiffs Geiszler and Kaiser that the defendants had caused noxious, septic odors to emanate from the Gonowabie Pump Station and be blown into plaintiffs’ property by prevailing winds. This allegation formed the basis of plaintiffs’ causes of action for nuisance (first claim), continuing trespass (second claim), intentional infliction of emotional distress (third claim), and negligence (fourth claim). Under these claims, the plaintiffs Geiszler and Kaiser sought (1) general damages, (2) punitive damages, (3) an order requiring the abatement" }, { "docid": "1398979", "title": "", "text": "businessman would reasonably assume [the completed operations hazard] relates to workmanship on manufactured products”). Accordingly, the Court finds that the HIV-contaminated blood claims do not fall within the scope of the unambiguous terms of the completed operations hazard, and thus that the $1 million aggregate limit is inapplicable to such claims. Per Occurrence Limits Defendant Travelers’ policies contain a $1 million “per occurrence” limit. The policies define “occurrence” as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” See Travelers’ 1984-85 Policy, Definitions (emphasis in original). The contracts further provide that for the purposes of determining the limit of the company’s liability, all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence. Id. Defendant Travelers contends that all of the HIV-contaminated blood claims together constitute a single occurrence. The parties agree that the Court should examine the underlying circumstances that resulted in the claims, rather than the effect of each claimant’s injury, to define a single occurrence. See Owens-Illinois, 597 F.Supp. at 1525 (citing Michigan Chem. Corp. v. American Home Assurance Co., 728 F.2d 374, 379-80 (6th Cir.1984)). “Using this analysis, the Court asks if there was but one proximate, uninterrupted and continuing cause which resulted in all of the injuries and damages.” Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56, 61 (3d Cir.1982). Defendant Travelers argues that the underlying cause of the HIV-contaminated blood claims was plaintiffs general, negligent practice in handling HIV-contaminated blood. The facts do not support the suggestion that plaintiff engaged in a single, negligent practice that could be considered “one cause.” Rather, plaintiff made many decisions with regard to its handling of the blood — whether to screen the donor, whether to test the blood, and whether to provide warnings to the recipient hospital. Each of these decisions independently may have affected whether bodily injury would result from a transfusion. Moreover, negligence with regard to screening," }, { "docid": "2282096", "title": "", "text": "in Illinois. In Prisco Serena Sturm Architects, Ltd. v. Liberty Mut. Ins. Co., 126 F.3d 886 (7th Cir.1997), we concluded that a construction manager’s negligent performance of its work resulted in an “occurrence.” Id. at 891. But that case relied on the fact that “occurrence” as defined by the policy included continuous or repeated exposure to conditions. The insured’s negligence in uncovering defects in the construction constituted “continuous or repeated exposure to substantially the same general harmful conditions,” and thus, an “occurrence.” Id.; see also Wilkin Insulation Co., 161 Ill.Dec. 280, 578 N.E.2d at 932 (“the continuous exposure of the buildings and their contents to released asbestos fibers” constituted an “accident” that resulted in “property damage”). In Country Mutual Insurance Co. v. Carr, which was the impetus for Lyerla’s supplemental summary judgment memorandum, homeowners sued a general contractor for allegedly negligently placing inappropriate backfill around the basement walls of their home and negligently operating equipment near those walls, resulting in damage to the basement walls and to other parts of the home. 311 Ill.Dec. 171, 867 N.E.2d at 1159. Country Mutual argued that the underlying complaint against the contractor did not allege an “occurrence” and the trial court agreed, granting the insurer’s motion for judgment on the pleadings. On appeal, the court acknowledged that a number of Illinois courts have concluded that the “natural and ordinary consequences of an act do not constitute an accident,” but stated that in determining whether an act or event is an “accident,” “the real question is whether the person performing the acts leading to the result intended or expected the result. If the person did not intend or expect the result, then the result was the product of an accident.” 311 Ill.Dec. 171, 867 N.E.2d at 1162 (citing Wilkin Insulation Co., 161 Ill.Dec. 280, 578 N.E.2d at 932; Yates v. Bankers Life & Cas. Co., 415 Ill. 16, 111 N.E.2d 516, 517-18 (1953); Lyons v. State Farm Fire & Cas. Co., 349 Ill.App.3d 404, 285 Ill.Dec. 231, 811 N.E.2d 718, 723 (2004)). The court concluded that the underlying complaint did not allege “that defendant," }, { "docid": "1218292", "title": "", "text": "accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Another pertinent provision provides: 9. Loss Payments (a) We will have liability for any one “Occurrence” ... only when the amount of the “Retained Limit” with respect to such “Occurrence” has been paid by: (i) the Insured; (ii) us on behalf of the Insured (other than under this policy); or (iii) the Insured’s underlying insurer. In the Treviño family’s suit against Methodist and the five nurses employed at the nursing home, the live pleading at the time the case was settled focused on the last several months of Treviño’s life and the injuries and conditions leading to her death, all of which occurred during Caliber One’s policy period. However, considerable discovery was conducted in that case, and several experts presented reports. At least one expert opined that Methodist employees were negligent at different times during the period the Hartford policy was in effect and that this negligence caused discrete, although relatively minor, injuries to Treviño. An expert concluded that the failure to clean Treviño properly and to apply appropriate medication led to rashes. Other breaches of the standard of care allegedly led to a urinary tract infection. The alleged failure to supervise Treviño and properly secure her in her wheelchair caused bruises on her hands. Treviño suffered severe stomach pain that was ignored and could have been avoided or relieved. Nurses massaged damaged tissue, which was allegedly contrary to the standard of care, and caused Treviño to suffer skin tearing and pain. These breaches of the standard of care and the resulting injuries are divisible from the alleged acts of negligence that occurred a year later that caused pneumonia, and a massive, infected Stage TV pressure sore and resulting sepsis, leading to Treviño’s death. If Treviño’s injuries prior to those she sustained in the months preceding her death had been more severe, such as a broken arm on one occasion and a skull fracture a few months later, we would have no difficulty in concluding that these discrete injuries and their causes were divisible from the acts" }, { "docid": "6436664", "title": "", "text": "by this policy shall not apply to liability for the assured for contamination or pollution of land, water, air or real or personal property or any injuries or damages resulting therefrom caused by an occurrence. For the purpose of this endorsement, an “occurrence” means a continuous or repeated exposure to conditions which unexpectedly and unintentionally causes injury to persons or tangible property during the policy period. All damages arising out of such exposure to substantially the same general conditions shall be considered arising out of one occurrence. See Memorandum in Support of ICSOP’s Motion for Summary Judgment at Exhibit 2. ICSOP moves for summary judgment, arguing that this clause excludes from coverage the damage which gave rise to the $8.5 million settlement between Time Oil and the government entities. U.S. Fire joins in the motion, noting that one of its policies contains a virtually identical “Contamination and Pollution Exclusion” clause. See U.S. Fire’s Joinder in ICSOP’s Motion for Summary Judgment at 1-2. In opposition, Time Oil presents two arguments centering around the use of the term “occurrence” in the endorsement. First, Time Oil notes the separate definition of occurrence in the endorsement excludes the concept of “accident” from the policies general definition of occurrence. Therefore, Time Oil contends, the qualified pollution exclusion preserves coverage for pollution-related claims caused by accidents. See Time Oil’s Opposition Re: ICSOP’s and U.S. Fire’s Pollution and Contamination Exclusions (“Opposition Re: Contamination Exclusion”) at 5-6. This argument is mer-itless. The qualified pollution exclusion clause does not “preserve” coverage for all accidental discharges. See, e.g., Harrison Plumbing v. New Hampshire Ins., 37 Wash.App. 621, 627, 681 P.2d 875 (1984) (by their very nature, exclusionary clauses do not grant coverage). Rather, the clause does not exclude coverage for discharges which are unforeseen, unexpected and accidental. See Order Re: Motions for Summary Judgment at 17-18; Order on Reconsideration at 8 n. 5. Second, Time Oil argues that the preclusive scope of the exclusion is ambiguous. In this regard, Time Oil states: Here, the insurers drafted a policy that provided indemnification for damages caused by an occurrence, which was defined" } ]

[ { "docid": "7413421", "title": "", "text": "warning Watson “physically attacked” Wall from behind, though Wall was walking in compliance with Watson’s order to leave. Watson grabbed him by his right wrist and bent and twisted his arm, causing pain. Watson then forced Wall “face first down” into a car, smashing his face, chest, and glasses. Watson handcuffed Wall’s hands “extremely tight” behind his back, picked Wall up by his handcuffed arms and threw Wall “upside down” and head first into the patrol ear. The patrol car felt like it was 80 or 90 degrees. Wall sat inside waiting for Watson for about 20 minutes. Wall asked Watson “to please loosen the handcuffs” when Watson returned to the vehicle. En route to the police station, Wall asked him to relieve the handcuffs again. Wall spent the night in jail and was released the next morning. Wall was charged under California Penal Code § 148, which proscribes resisting or obstructing a peace officer, and California Penal Code § 602.1, which proscribes interfering with a business by obstructing or intimidating employees or customers and refusing to leave. All charges were ultimately dismissed. An expert declaration by Dr. Pedro J. Postigo, a neurologist, stated that Wall sustained an injury to his right medial nerve as á result of the October 9, 1998 incident. Wall was forced by the injury to give up his profession of dentistry. PROCEEDINGS On October 6, 1999, Wall filed this suit charging the defendants with violation of 42 U.S.C. § 1983 and with state torts of false arrest and false imprisonment. Declarations were filed and depositions taken from pertinent witnesses. On February 19, 2002, the defendants moved for summary judgment; Wall opposed the motion. On May 15, 2002, the district court issued a Statement Of Uncontroverted Facts And Conclusions Of Law. Doing so, the district court adopted the statement of facts prepared by the defendants, making minuscule changes and almost entirely ignoring the declaration and deposition of Wall. The district court also adopted the conclusions of law furnished by the defendants. The defendants were held to have qualified immunity. There was no constitutional violation. Deputy Watson’s" } ]

[ { "docid": "22324761", "title": "", "text": "take her to the back of her car and slam her head against the trunk after she was arrested, handcuffed, and completely secured, and after any danger to the arresting officer as well as any risk of flight had passed. Once an arrestee has been fully secured, such force is wholly unnecessary to any legitimate law enforcement purpose. We recognized this principle in Slicker v. Jackson, 215 F.3d 1225 (11th Cir.2000), where we denied qualified immunity to police officers who arrested the plaintiff for disorderly conduct, placed him in handcuffs, and then, after he had been fully secured, slammed his head into the pavement and kicked him in the leg, head, and back. See id. at 1227. In reaching our decision in Slicker, we explained that the evidence taken in the light most favorable to the plaintiff was “sufficient to raise a question of fact as to whether the officers’ actions constituted excessive and not de minimis force.” Id. at 1233. See also Priester, 208 F.3d at 926-27 (denying qualified immunity in light of clearly excessive force to officer who allowed police dog to attack arrestee who was already subdued and lying on the ground); Smith, 127 F.3d at 1418-20 (denying qualified immunity in excessive force case to officer who broke arm of individual who “docilely submitted” to officer’s request to “get down”). As in Slicker, Priester, and Smith, the peculiar facts of this case are “so far beyond the hazy border between excessive and acceptable force that [the officer] had to know he was violating the Constitution even without caselaw on point.” Smith, 127 F.3d at 1419. Moreover, the facts alleged by Lee take this case outside the realm of cases in which we have granted qualified immunity on the ground that the force used and injury sustained were de minimis. First, the crime at issue in this case was undeniably less significant than the crimes in any of the other cases we have considered. See Rodriguez v. Farrell, 280 F.3d 1341, 2002 WL 121940, at *1 (11th Cir.2002) (cocaine possession); Nolin, 207 F.3d 1253, 1254-55 (public fighting); Jones" }, { "docid": "17922531", "title": "", "text": "Upon Sword’s direction Brock, Phillips, and Bright applied the hobbles. Stephens twisted Silva’s wrist behind his back so it was sticking straight up in the air, then Phillips connected the hobble to the handcuffs, a restraint method known as “hogtying.” Silva still tried to lift his chest up. One to two minutes after Silva was hog-tied, Phillips applied a second hobble while the same officers described above continued to apply body-weight pressure to Silva’s back. While Silva was hog-tied and prone, officers twice picked him up and dropped him face-down on the ground. Silva had blood all over his face and Greer applied a spit-mask. After Bright assisted with applying the hobble, he walked away to wash blood from his hands. Approximately one to two minutes after Bright stepped away, Silva went quiet. This conduct as alleged, if found to be true by a trier of fact, “supports the finding that some of the force used by defendants was unreasonably excessive or brutal.” Walker v. Jones, No. C-08-0757 CRB-PR, 2010 WL 3702659, at *4 (N.D.Cal. Sept. 16, 2010) (examining similar officer conduct in an Eighth Amendment context) (citing Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); see also LaLonde, 204 F.3d at 960 (finding that tight handcuffing, even without hogtying, though nonlethal, is nontrivial and may constitute excessive force); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.l993)(same)). (2) Government interest a.Severity of crime Based on the allegations, according to Plaintiffs’ version of the incident the underlying crime remained a violation of California Civil Code Section 148(a), a misdemeanor. See also Cal. Pen. Code § 17(b) (defining misdemeanor offenses under California law). Again at this Phase, Defendants do not allege that Silva committed any “crime of violence” (see, e.g., Valdovi-nos-Mendez, 641 F.3d at 1035), thus the severity of the underlying crime is a nonviolent misdemeanor. b. Immediate threat to officers According to Plaintiffs, once Silva was handcuffed he no longer posed a potential threat to officers. Plaintiffs emphasize that although Defendants assert that Silva was kicking his legs, the officers testified that Silva never" }, { "docid": "22174747", "title": "", "text": "hour despite complaints that the cuffs were too tight). In determining whether Kopec was deprived of his Fourth Amendment right to be free from the use of excessive force, it is instructive to review the caselaw in which the facts have been sufficient to state a claim. These cases demonstrate that a viable excessive force claim requires that the officer or officers had either constructive or actual notice that the force applied by the handcuffs was excessive under the circumstances, yet the officer or officers failed to respond to such notice in a reasonable manner. For example, in Palmer v. Sanderson, 9 F.3d 1433 (9th Cir.1993), one of the earliest tight handcuffing cases, the plaintiffs complaints that the handcuffs were too tight and painful provided the officer with constructive notice that the force used might have been excessive under the circumstances. Despite this notice, the officer refused to loosen the handcuffs. Id. at 1436. The Court concluded that “[u]nder these circumstances no reasonable officer could believe that the abusive application of cuffs was constitutional.” Id. Although the Ninth Circuit’s decision in Palmer did not actually use the term “notice” in determining that the facts were sufficient to state a Fourth Amendment violation, substantively its analysis focused on that very issue. Thereafter, a number of circuit courts employed this same analysis, again without discussing the principle of notice, and concluded that there were sufficient facts to state an excessive force claim where the plaintiffs complaints about painful and overly tight handcuffing were ignored by the arresting officers. See Herzog, 309 F.3d at 1043; supra n. 2. The importance of the notice effected by a plaintiffs complaints that handcuffs are too tight and painful was demonstrated in Burchett, 310 F.3d at 937. There, the plaintiff, who had been handcuffed for three hours in a police cruiser, showed his family that his hands were swollen and blue. Id. at 941. The family, in turn, pointed this out to the officers, who agreed to release the plaintiff if he promised to behave. After the plaintiff agreed, the cuffs were released. Id. Thereafter, plaintiff claimed" }, { "docid": "23656762", "title": "", "text": "jerked the plaintiff out of his car, handcuffed him extremely tightly, forcefully shoved him into the back of a patrol car, and refused to loosen his handcuffs was not entitled to qualified immunity because no reasonable officer would have thought this conduct was constitutional); Hansen v. Black, 885 F.2d 642, 645 (9th Cir.1989) (holding that police officers used excessive force when they roughly handcuffed plaintiff Hansen thereby injuring her wrist and arm after she tried to prevent them from collecting evidence and called one of the officers a “son of a bitch”). Indeed, the Department’s own Internal Investigations Bureau found Officer Miller’s actions unreasonable and disciplined him for “not [using] the minimal amount of force necessary” in a situation in which he had multiple, less forceful means available through which to accomplish his objective. Cf. Deorle, 272 F.3d at 1283. Thus, viewing the facts in the light most favorable to Davis, it is clear that a reasonable officer in Miller’s position would have known that the conduct in which he engaged constituted excessive force. Officer Miller’s arguments to the contrary are far from persuasive. In support of his argument that a reasonable officer would not have known that he acted unlawfully, he cites not a single Ninth Circuit case. His reliance on out-of-circuit authority, namely Hinton v. City of Elwood, 997 F.2d 774 (10th Cir.1993) and Melton v. Shivers, 496 F.Supp. 781 (M.D.Ala.1980), is misplaced. In Hinton, the plaintiff shoved a police officer and then walked away when he was told that he was under arrest. 997 F.2d at 776. Two officers then wrestled him to the ground and attempted to handcuff him. Id. at 777. The plaintiff forcefully resisted being handcuffed by kicking, flailing his arms, and attempting to bite the officers. Id. The officers used only as much force as was necessary to subdue him, eventually using a stun gun for that purpose. Id. Unlike the plaintiff in Hinton, Davis was handcuffed for the duration of his encounter with Officer Miller, did not attempt to bite or attack him and did not attempt to flee. Hinton is quite" }, { "docid": "22174746", "title": "", "text": "thereof to effect it,” and that “ ‘[n]ot every push or shove’ ” violates the Fourth Amendment. Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). The Graham Court instructed that careful attention must be given to “the facts and circumstances of each particular case” and that 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.” 490 U.S. at 396, 109 S.Ct. 1865. Similarly, not every instance of tight handcuffing offends the Fourth Amendment’s right to be free from the use of excessive force during an arrest. Indeed, several of our sister circuits have recognized as much In some circumstances, however, tight handcuffing may give rise to a Fourth Amendment violation. See Herzog v. Village of Winnetka, 309 F.3d 1041, 1043 (7th Cir.2002) (concluding that summary judgment was improperly granted in favor of the officers where plaintiff was arrested without probable cause and handcuffed for an hour despite complaints that the cuffs were too tight). In determining whether Kopec was deprived of his Fourth Amendment right to be free from the use of excessive force, it is instructive to review the caselaw in which the facts have been sufficient to state a claim. These cases demonstrate that a viable excessive force claim requires that the officer or officers had either constructive or actual notice that the force applied by the handcuffs was excessive under the circumstances, yet the officer or officers failed to respond to such notice in a reasonable manner. For example, in Palmer v. Sanderson, 9 F.3d 1433 (9th Cir.1993), one of the earliest tight handcuffing cases, the plaintiffs complaints that the handcuffs were too tight and painful provided the officer with constructive notice that the force used might have been excessive under the circumstances. Despite this notice, the officer refused to loosen the handcuffs. Id. at 1436. The Court concluded that “[u]nder these circumstances no reasonable officer could believe that the abusive application of cuffs was constitutional.” Id." }, { "docid": "3903983", "title": "", "text": "immunity). As for whether the officers could reasonably have believed that the force they used was reasonable, here, as in many excessive-force cases, the “issue of tight handcuffing is usually fact-specific and is likely to turn on the credibility of the witnesses.” Id.; see Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993) (rejecting qualified immunity where the officer handcuffed the plaintiff so tightly that he suffered pain and bruises). Qualified immunity is simply not available here where we have a case directly on point demonstrating that it is clearly established that the police conduct was excessive. In Hansen v. Black, 885 F.2d 642, 645 (9th Cir.1989), we unanimously reversed the grant of summary judgment on the excessive force claim where the plaintiff claimed that her “handcuffs were put on in an abusive manner” and “she had bruises on her wrist and under her upper arm, and she complained of pain in her little finger and upper arm.” We denied summary judgment there even though the officers believed the plaintiff was committing the serious offense of assisting a robbery suspect and attempting to destroy evidence. See id. at 643. Under Hansen, qualified immunity is not appropriate. Luehtel’s crimes were less serious, and her injuries were much more severe — a dislocated shoulder, torn shoulder ligaments, a shoulder bone fracture in addition to bruises all over her body. It is clearly established in the Ninth Circuit that causing fractures and dislocating shoulders while handcuffing a suspect is excessive force. IV Although I concur in the remainder of the court’s opinion, I must dissent with respect to the excessive-force and assault- and-battery claims. On these claims, the court’s opinion weighs the facts and testimony in this case much as jurors would in the jury room. It concludes that no reasonable juror could conclude that the Seattle Police Department officers used excessive force here. And yet, it leaves out half of the testimony — the other side of the story. We are appellate judges, not jurors. This case should have its day in court. . I concur in Parts III and VI of" }, { "docid": "23686336", "title": "", "text": "F.2d 1005, 1006-07 (4th Cir.1993) (denying qualified immunity on excessive force claim where taking the facts in the light most favorable to Kane, she resisted arrest for driving under the influence and the police officer, after he had secured her, “repeatedly push[ed] her face into the pavement, cracking three of her teeth, cutting her nose, and bruising her face”); see also Mayard v. Hopwood, 105 F.3d 1226, 1227-28 (8th Cir.1997) (denying qualified immunity to an officer who slapped and punched a suspect, in handcuffs and leg restraints, even though the suspect had, prior to being completely restrained, kicked and hit an officer, physically resisted arrest, and shouted and screamed at officers). “Thus, years before [1998], it was clearly established that a police officer was not entitled to use unnecessary, gratuitous, and disproportionate force against a handcuffed, secured citizen, who posed no threat to the officer or others and had neither committed, nor was suspected of committing, any crime.” Jones, 325 F.3d at 534. Here, Michael was unarmed, and the use of force continued even after he was secured with flex-cuffs around both his hands and his feet, and lying face down on the floor, alone in a room of his parents’ house. Kennedy lifted Michael up by his arms while they were bound behind his back, thereby wrenching his shoulder, and Whitley kicked Michael in the back when he cried out in pain. Thus, Kennedy and Whitley violated clearly established law in using force to seize Michael when he had committed no crime and when they had no reason to believe he was a danger to himself or others. It was especially clear that they were not entitled to use force after Michael was secured face down on the floor in handcuffs and leg restraints. Accordingly, we affirm the denial of qualified immunity on the § 1983 excessive force claim. For the same reasons that we affirm the denial of qualified immunity on the § 1983 excessive force claim, we affirm the denial of public officers’ immunity on the state common law assault and battery claim. Glenn-Robinson, 538 S.E.2d at" }, { "docid": "22841200", "title": "", "text": "during an arrest constitutes excessive force. In some circumstances, unduly tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored a plaintiffs timely complaints (or was otherwise made aware) that the handcuffs were too tight. See, e.g., Lyons v. Xenia, 417 F.3d 565, 575-76 (6th Cir.2005); Herzog v. Village of Winnetka, 309 F.3d 1041, 1043 (7th Cir.2002); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993). Although Rick Cortez complained to the officer that the handcuffs were too tight, the summary judgment record presents too little evidence of any actual injury. We believe that a claim of excessive force requires some actual injury that is not de minimis, be it physical or emotional. The only evidence in the record is his affidavit that the handcuffs left red marks that were visible for days afterward. Aplt.App. at 88. This is insufficient, as a matter of law, to support an excessive force claim if the use of handcuffs is otherwise justified. We hold that the force established does not exceed what would have been reasonable to effectuate a lawful arrest under these circumstances. Therefore, whether or not the arrest itself was lawful, Plaintiffs’ claim that Defendants used excessive force against Rick Cortez should not survive summary judgment. Even taking Plaintiffs’ allegations as true and viewing the evidence in the light most favorable to Plaintiffs, Plaintiffs have not established that Defendants’ use of force against Rick Cortez violated his Fourth and Fourteenth Amendment right to be free from the use of excessive force. In other words, the Defendants are entitled to qualified immunity on Rick Cortez’s excessive force claim because no constitutional violation occurred. We therefore reverse the district court’s denial of summary judgment to Defendants as to Plaintiffs’ claim that Defendants used excessive force against Rick Cortez in connection with an arrest. C. Defendants’ Use of Force Against Tina Cortez Taking Plaintiffs’ allegations as true, and viewing the evidence in the light most favorable to Plaintiffs, it appears that Defendants (1) entered Tina Cortez’s home in the middle of the" }, { "docid": "22596359", "title": "", "text": "officers’ handcuffing of Bur-chett and their detaining him for three hours in an unventilated police car in extreme heat. We take the two in turn. First, we conclude that the officers did not use excessive force in handcuffing Burchett. The officers admit that they had to use force in restraining him, but “[n]ot every push or shove, even if it may later seem unnecessary ... violates the Fourth Amendment.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quotation omitted). In fact, Burchett’s own statements indicate that the initial force used to restrain him may have been necessary. Burchett acknowledged that he “twisted and turned some” when they tried to handcuff him and that the officers had difficulty restraining him. J.A. at 88 (Burchett Dep.). There is no genuine issue with respect to these facts, and the officers’ use of force was reasonable. The tightness of the handcuffs themselves causes greater concern. The right to be free from “excessively forceful handcuffing” is a clearly established right for qualified immunity purposes, Kostrzewa v. City of Troy, 247 F.3d 633, 641 (6th Cir.2001), and applying handcuffs so tightly that the detainee’s hands become numb and turn blue certainly raises concerns of excessive force. Our precedents allow the plaintiff to get to a jury upon a showing that officers handcuffed the plaintiff excessively and unnecessarily tightly and ignored the plaintiffs pleas that the hand cuffs were too tight. See id.; Martin v. Heideman, 106 F.3d 1808, 1310, 1313 (6th Cir.1997) (reversing directed verdict in favor of defendants on excessive force claim when plaintiffs hands were injured after thirty-five minutes in tight handcuffs). Unlike the officers in Kostrzewa and Martin, however, the officers here did not ignore any plea that the handcuffs were too tight. To the contrary, Burchett complained only once, and on that occasion, Sheriff Kiefer immediately offered to remove the handcuffs if Burchett would behave. Burchett agreed, and the handcuffs were removed. The record gives no indication that Burchett had previously complained or advised the officers that the handcuffs were too tight. Kiefer’s prompt response when Burchett finally did complain distinguishes this" }, { "docid": "22283582", "title": "", "text": "the light most favorable to the plaintiff, a jury could decide that Officer Horton’s actions violated the Fourth Amendment’s prohibition on excessive force. LaLonde admits that he initially resisted arrest — one of the factors in Graham for determining reasonableness. Graham, 490 U.S. at 396, 109 S.Ct. 1865. However, if the extent of the injury to LaLonde’s back is serious enough, a jury could conclude that Horton used force in excess of what was reasonable, even if LaLonde had been resisting at the time. Also, another factor weighing in La-Londe’s favor is the fact that he was being arrested for a relatively minor offense. Graham, 490 U.S. at 396, 109 S.Ct. 1865. Considering the facts in the light most favorable to him, LaLonde had the right to have the jury assess the evidence supporting this claim of excessive force. B. Tight handcuffs Despite LaLonde’s arguments and evidence, the district court ignored his handcuffing claim. During the proceedings, the court orally explained its reasons for approving the motion for judgment as matter of law on the outstanding claims. However, the court did not mention two of the plaintiffs claims: (a) the officers tightly handcuffed him and refused to loosen the cuffs when he complained; and (b) the officers permitted the oleoresin capsicum pepper spray to remain on his face for an unnecessary period of time. LaLonde’s counsel then brought these two claims to the court’s attention once again. In response, the court addressed the pepper spray issue, but not the tight handcuffing claim, and the court’s written order simply continued to ignore the latter claim. A series of Ninth Circuit cases has held that tight handcuffing can constitute excessive force. See, e.g., Palmer v. Sanderson, 9 F.3d 1433 (9th Cir.1993); Hansen v. Black, 885 F.2d 642 (9th Cir.1989). The issue of tight handcuffing is usually fact-specific and is likely to turn on the credibility of the witnesses. According to the facts alleged by LaLonde, it is difficult, if not impossible, to say that the only reasonable conclusion that the evidence permits is that the force used was reasonable; therefore this aspect" }, { "docid": "22841199", "title": "", "text": "in effecting an arrest under the Fourth Amendment. See Atwater v. City of Lago Vista, 532 U.S. 318, 354-55, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (noting that a normal lawful custodial arrest where one is handcuffed, placed in a patrol car, and taken to the police station may be inconvenient and embarrassing, but not violative of the Fourth Amendment); Graham, 490 U.S. at 396, 109 S.Ct. 1865 (“Our Fourth Amendment jurisprudence has long recognized 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.”). Although the dignity aspects of this arrest are troubling, specifically hauling Rick Cortez (clad only in his shorts) into the patrol car in the middle of the night without any explanation, the police were investigating a serious felony and claimed a need for quick action to separate the accused from any other children that might be in the home. The closer issue is whether the failure to adjust Rick Cortez’s handcuffs during an arrest constitutes excessive force. In some circumstances, unduly tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored a plaintiffs timely complaints (or was otherwise made aware) that the handcuffs were too tight. See, e.g., Lyons v. Xenia, 417 F.3d 565, 575-76 (6th Cir.2005); Herzog v. Village of Winnetka, 309 F.3d 1041, 1043 (7th Cir.2002); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993). Although Rick Cortez complained to the officer that the handcuffs were too tight, the summary judgment record presents too little evidence of any actual injury. We believe that a claim of excessive force requires some actual injury that is not de minimis, be it physical or emotional. The only evidence in the record is his affidavit that the handcuffs left red marks that were visible for days afterward. Aplt.App. at 88. This is insufficient, as a matter of law, to support an excessive force claim if the use of handcuffs is otherwise justified. We hold that the" }, { "docid": "11011065", "title": "", "text": "be said as a matter of law that the officers’ use of force was reasonable. Alexander claims that he was immediately handcuffed and forced to remain handcuffed for forty-five minutes to an hour. He claims that he was slammed against a car, his legs kicked apart, and that he was carried and pushed into the back of the police car with his hands behind his back. Alexander told police officers that he was ill. Officer Ateneio, who handcuffed Alexander, stated during his deposition that he remembered “grabbing [Alexander’s] wrists so [he] could handcuff him and at that point [he] felt that [Alexander’s] wrist was kind of mushy or soft around the wrist area and [Alexander] simultaneously stated that he was a dialysis patient.” Ateneio Deposition at 19. Alexander testified during his deposition that he repeatedly asked that the handcuffs be removed or loosened because he was a dialysis patient and that, although Brown’s handcuffs were readjusted, Alexander’s request was initially denied. The police officers verified that Alexander was complaining about the handcuffs. Alexander claims his handcuffs were readjusted only after he had already been handcuffed thirty-five to forty minutes. His hands became swollen and turned blue. Nine months after this incident, when Alexander was deposed, his right hand was still swollen in that it had a walnut-sized protrusion on the back of it below the wrist. His right hand also remained numb, and he was not able to make a fist with it. We find that if these facts are believed by the jury, it could reasonably find that excessive force was used against Alexander. See Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993) (denying qualified immunity to an officer who tightly handcuffed an elderly man and refused to loosen the handcuffs). Thus, under the circumstances, we feel that the defense of qualified immunity is not available to the officers on Alexander’s excessive-force claim. The judgment of the district court denying the police officers qualified immunity for the unlawful detention is hereby reversed and the case is remanded to the district court with directions that judgment should be entered" }, { "docid": "23656761", "title": "", "text": "known that such conduct constituted the use of excessive force.” Id. at 1061. Examining the facts here at issue in the light most favorable to Davis, we readily reach the same conclusion. Any reasonable officer in Officer Miller’s position would have known, in light of the Graham factors discussed supra and our case law interpreting them, that swinging a handcuffed man into a wall head-first multiple times and then punching him in the face while he lay face-down on the ground, and breaking his neck as a result, was unnecessary and excessive. See e.g., Chew, 27 F.3d at 1436, 1443(holding that, under Graham, the fact that the defendant officer used “severe force” to arrest a suspect who did not pose an immediate threat to the safety of police officers was sufficient to preclude summary judgment for the officer, notwithstanding the fact that the suspect had attempted to flee and was the subject of three outstanding felony warrants); Palmer v. Sanderson, 9 F.3d 1433, 1434-36 (9th Cir.1993) (holding that an officer who, during a traffic stop, jerked the plaintiff out of his car, handcuffed him extremely tightly, forcefully shoved him into the back of a patrol car, and refused to loosen his handcuffs was not entitled to qualified immunity because no reasonable officer would have thought this conduct was constitutional); Hansen v. Black, 885 F.2d 642, 645 (9th Cir.1989) (holding that police officers used excessive force when they roughly handcuffed plaintiff Hansen thereby injuring her wrist and arm after she tried to prevent them from collecting evidence and called one of the officers a “son of a bitch”). Indeed, the Department’s own Internal Investigations Bureau found Officer Miller’s actions unreasonable and disciplined him for “not [using] the minimal amount of force necessary” in a situation in which he had multiple, less forceful means available through which to accomplish his objective. Cf. Deorle, 272 F.3d at 1283. Thus, viewing the facts in the light most favorable to Davis, it is clear that a reasonable officer in Miller’s position would have known that the conduct in which he engaged constituted excessive force. Officer" }, { "docid": "22765584", "title": "", "text": "v. Miller, 878 F.Supp. 114, 116-17 (N.D.Ill.1995) (denying summary judgment on excessive force claim where police officer pushed complainant against police car and handcuffed him so tightly that he suffered nerve damage where suspect violated no law, complied fully with officer’s instructions, and did not resist arrest); Ingram v. Jones, No. 95 C 2631, 1995 WL 745849, at *11 (N.D.Ill. Nov.29, 1995) (denying defendants’ motion to dismiss excessive force claim where woman alleged that police officer forcefully grabbed and handcuffed her where she had committed no crime, did not resist, and fully complied with all of the officer’s requests), modified on other grounds by No. 95 C 2631, 1997 WL 323538 (N.D.Ill. June 9, 1997); Tennen v. Shier, No. 94 C 2127, 1995 WL 398991, at *7 (N.D.Ill. June 30, 1995) (reasonable factfinder could find officer used excessive force in grabbing complainant’s arm, and yanking him around by the arm, where he had violated no law and posed no physical threat to the officer); see also Martin v. Heideman, 106 F.3d 1308, 1312-13 (6th Cir.1997) (though amount of force used was allegedly greater than in instant case, stating that overly tight handcuffing constitutes excessive force); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993) (refusing to grant summary judgment for police officers where tight handcuffs caused pain and bruising and plaintiff passed field sobriety tests and had violated no law). It is true, as Pauley points out in his brief, that there are other cases in which courts have not found that the application of tight handcuffs constituted excessive force, but after reviewing those cases we find that the factual scenarios are distinguishable either because the subject resisted arrest, failed to obey orders, was accused of a more serious or violent crime, or because the officers used far less force than Payne alleges. In this case, according to Payne’s account, Officer Pauley confronted a woman who posed no danger to Officer Pauley or to the public, who did not resist arrest, and who was alleged to have committed a very minor, non-violent crime. If the facts as alleged by Payne" }, { "docid": "19882631", "title": "", "text": "of directly analogous case law, if the actions taken were not only unconstitutional, but patently so, the officer will be deemed to have violated clearly established statutory or constitutional rights of which a reasonable person would have known. See Cunningham v. Gates, 229 F.3d at 1290. After reviewing the case law, the Court concludes that in 2004, when Mr. Beaver was arrested, the contours of Fourth Amendment jurisprudence and, in particular, excessive force claims of this type, were not sufficiently clear that a reasonable officer would have understood that multiple tasings of Mr. Beaver under these circumstances violated his rights. Most of the decisions finding police officers liable involve facts that are much more egregious than those presented in this case. For example, in Davis v. City of Las Vegas, the Ninth Circuit found that a police officer used excessive force when he slammed an unarmed suspect head-first against a wall, thereby breaking his neck, and then threw the suspect onto the floor, kneed him in the back, and punched him in the face. 470 F.3d. at 1055. Nevertheless, there are some decisions that involve situations similar to the instant case, where the use of force by the police was less severe than that in Davis, and the suspect’s actions were analogous. In Smith v. City of Hemet, 394 F.3d 689 (9th Cir.2005) (en banc), for instance, the Ninth Circuit found that defendants were not entitled to summary judgment when the evidence, viewed in the light most favorable to plaintiff, established that police officers released a police dog against the plaintiff while he was already pinned to the ground. Id. at 702. Although the Ninth Circuit observed that plaintiff had continually ignored the officers’ requests to place his hands on his head, the court found that plaintiffs resistance was not particularly “bellicose” and did not justify the officers’ use of force. Id. at 703. Similarly, in Harveston v. Cunningham, 216 Fed.Appx. 682 (9th Cir.2007), the Ninth Circuit found that a police officer used excessive force when he used pepper spray against a suspect who was already handcuffed and on the" }, { "docid": "3903982", "title": "", "text": "suit rather than a mere defense to liability” such that immunity questions should be resolved “at the earliest possible stage in litigation.” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quotation marks omitted). But it is also true that excessive-force cases “almost always turn on a jury’s credibility determinations” and therefore “summary judgment ... in excessive force cases should be granted sparingly” even with respect to the issue of qualified immunity. Smith, 394 F.3d at 701, 704 n. 7. These opposing imperatives make the issue of summary judgment on § 1983 claims tricky indeed. But the balance here tilts in favor of trial. The right to be free from excessive force in handcuffing is clearly established in our precedent. See, e.g., Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir.2003) (rejecting qualified immunity because it was “clearly established” that the amount of force used in handcuffing the plaintiff was excessive). This is true even when the plaintiff actively resists handcuffing. See LaLonde, 204 F.3d at 952, 960 (rejecting qualified immunity). As for whether the officers could reasonably have believed that the force they used was reasonable, here, as in many excessive-force cases, the “issue of tight handcuffing is usually fact-specific and is likely to turn on the credibility of the witnesses.” Id.; see Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993) (rejecting qualified immunity where the officer handcuffed the plaintiff so tightly that he suffered pain and bruises). Qualified immunity is simply not available here where we have a case directly on point demonstrating that it is clearly established that the police conduct was excessive. In Hansen v. Black, 885 F.2d 642, 645 (9th Cir.1989), we unanimously reversed the grant of summary judgment on the excessive force claim where the plaintiff claimed that her “handcuffs were put on in an abusive manner” and “she had bruises on her wrist and under her upper arm, and she complained of pain in her little finger and upper arm.” We denied summary judgment there even though the officers believed the plaintiff was committing the serious offense" }, { "docid": "23656760", "title": "", "text": "Cir.2003). Drum-mond suffered from a severe mental illness and, when he ran out of medication, started hallucinating and became paranoid. Id. at 1054. His neighbor called to request police assistance because he was afraid that Drummond would hurt himself. Id. When police officers responded, they decided to take him into custody for his own safety. Id. The officers “knock[ed] Drum-mond to the ground, where the officers cuffed his arms behind his back as Mr. Drummond lay on his stomach.” Id. Two officers then placed their knees on Drum-mond’s back and neck and remained there, even after it became obvious that he was having difficulty breathing under their weight. Id. at 1054-55. Drummond eventually lost consciousness and suffered permanent brain damage due to lack of oxygen. Id. at 1055. This court held that “[viewing the evidence in the light most favorable to [the plaintiff] ... the officers had ‘fair warning’ that the force they used was constitutionally excessive even absent a Ninth Circuit case presenting the same set of facts. ... Any reasonable officer should have known that such conduct constituted the use of excessive force.” Id. at 1061. Examining the facts here at issue in the light most favorable to Davis, we readily reach the same conclusion. Any reasonable officer in Officer Miller’s position would have known, in light of the Graham factors discussed supra and our case law interpreting them, that swinging a handcuffed man into a wall head-first multiple times and then punching him in the face while he lay face-down on the ground, and breaking his neck as a result, was unnecessary and excessive. See e.g., Chew, 27 F.3d at 1436, 1443(holding that, under Graham, the fact that the defendant officer used “severe force” to arrest a suspect who did not pose an immediate threat to the safety of police officers was sufficient to preclude summary judgment for the officer, notwithstanding the fact that the suspect had attempted to flee and was the subject of three outstanding felony warrants); Palmer v. Sanderson, 9 F.3d 1433, 1434-36 (9th Cir.1993) (holding that an officer who, during a traffic stop," }, { "docid": "23449623", "title": "", "text": "all the surrounding circumstances, individually and in combination, plainly counseled minimal force in effecting any arrest — Alexis was abruptly pulled from the booth, and across the table, with sufficient force to bruise her legs, then handcuffed with her hands behind her back and dragged and carried to a police cruiser and pushed inside. Viewed in context and accepted as true, we are not persuaded that the record evidence compelled the conclusion that the force with which Leporati effected the sudden, unannounced, violent seizure and removal of Alexis’s person was objectively reasonable, especially since there is no evidence or suggestion that she posed a risk of flight, attempted to resist or evade arrest, or threatened the peace, property or safety of anyone. See Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993) (finding trialworthy “excessive force” claim where deputy sheriff arrested, tightly handcuffed, and bruised sixty-seven-year-old man with impaired mobility who attempted to return to his car to sit down while answering officer’s questions); see also Rowland v. Perry, 41 F.3d 167, 171-74 (4th Cir.1994) (finding trialworthy “excessive force” claim where police officer injured arrestee’s leg (“wrenching the knee until it cracked”) after arrestee picked up five dollar bill dropped by its owner); cf. Lester v. Chicago, 830 F.2d 706, 714 (7th Cir.1987) (pre-Graham case) (holding that plaintiff stated trialworthy Fourth Amendment “excessive force” claim when, during course of arrest for disturbing peace, plaintiff was kneed in the back, threatened with being struck, dragged down a hallway, and handcuffed tightly, causing bruises on her wrists); Patzner v. Burkett, 779 F.2d 1363, 1371 (8th Cir.1985) (pre-Graham case) (finding trial-worthy “excessive force” claim where uncooperative double amputee — arrested at home after allegedly driving under the influence — was pulled from wheelchair to floor, then dragged through home after promising to cooperate). Accordingly, the “excessive force” claim must be remanded for further proceedings. 3. Equal Protection Alexis claims that Leporati discriminated against her on the basis of her race, both in deciding to enforce the criminal trespass statute by effecting her immediate arrest, and by employing unreasonable force. Even assuming probable cause" }, { "docid": "11011066", "title": "", "text": "handcuffs were readjusted only after he had already been handcuffed thirty-five to forty minutes. His hands became swollen and turned blue. Nine months after this incident, when Alexander was deposed, his right hand was still swollen in that it had a walnut-sized protrusion on the back of it below the wrist. His right hand also remained numb, and he was not able to make a fist with it. We find that if these facts are believed by the jury, it could reasonably find that excessive force was used against Alexander. See Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993) (denying qualified immunity to an officer who tightly handcuffed an elderly man and refused to loosen the handcuffs). Thus, under the circumstances, we feel that the defense of qualified immunity is not available to the officers on Alexander’s excessive-force claim. The judgment of the district court denying the police officers qualified immunity for the unlawful detention is hereby reversed and the case is remanded to the district court with directions that judgment should be entered in favor of the defendants on this issue. The judgment in favor of the police officers on Alexander’s claim of excessive hereby vacated and the cause is remanded for trial. REVERSED and REMANDED. . There was no cross-appeal by the plaintiffs as to the dismissal of the County of Los Angeles. . The primary concern in analyzing qualified immunity is whether the risk of monetary liability will inhibit officers in the discharge of their duties. The Supreme Court has expressed that concern as follows: The qualified immunity standard \"gives ample room for mistaken judgments” by protecting \"all but the plainly incompetent or those who knowingly violate the law.\" [Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 1096, 1097, 89 L.Ed.2d 271 (1986).] This accommodation for reasonable error exists because \"officials should not err always on the side of caution” because they fear being sued. [Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984).] Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d" }, { "docid": "22174738", "title": "", "text": "Mile Island v. Nuclear Regulatory Comm’rs, 747 F.2d 139, 144-45 (3d Cir.1984), we held that there does not have to be “precise factual correspondence” between the case at issue and a previous case in order for a right to be “clearly established,” and we would not be “faithful to the purposes of immunity by permitting ... officials one liability-free violation of a constitutional or statutory requirement.” Therefore, we hold that the right of an arrestee to be free from the use of excessive force in the course of his handcuffing clearly was established when Officer Tate acted in this case, and that a reasonable officer would have known that employing excessive force in the course of handcuffing would violate the Fourth Amendment. Accordingly, the district court committed error in granting summary judgment in favor of Officer Tate on the basis of his qualified immunity defense. In reaching our result we point out that other courts of appeals have made determinations consistent with ours. See, e.g., Martin v. Heideman, 106 F.3d 1308, 1312 (6th Cir.1997) (reversing grant of directed verdict in favor of arresting officer in a section 1983 action alleging excessive force due to overly-tight handcuffs); Alexander v. County of Los Angeles, 64 F.3d 1315, 1322-23 (9th Cir.1995) (reversing grant of summary judgment in favor of officers on qualified immunity and holding that fact issue existed as to whether officers used excessive force in refusing to loosen plaintiffs handcuffs); Palmer, 9 F.3d at 1436 (9th Cir.1993) (affirming denial of summary judgment on qualified immunity where deputy allegedly employed excessive force by handcuffing plaintiff so tightly that he was in pain and was left bruised for several weeks). IV. CONCLUSION For the foregoing reasons, we will reverse the order of the district court en tered on October 22, 2002, and remand the case for proceedings consistent with this opinion. . On this appeal from an order granting summary judgment against him we are stating the facts from Kopec’s perspective. At trial the events may appear in a different light. . Kopec in his brief indicates that he and his girlfriend \"were" } ]

[ { "docid": "18738672", "title": "", "text": "See Appel-lee’s Brief at p. 3. II. STANDARD OF REVIEW This case involves an appeal from the bankruptcy court’s dismissal of a complaint. In reviewing the propriety of the bankruptcy court’s order in this case, this court must “apply the same standards of review as those governing appellate review in other cases.” In re Perma Pac. Properties, 983 F.2d 964, 966 (10th Cir.1992). This court therefore must affirm the bankruptcy court’s findings of fact unless those findings are clearly erroneous. In re Davidovich, 901 F.2d 1533, 1536 (10th Cir.1990). Where the bankruptcy court has made conclusions of law, however, this court is required to conduct a de novo review of the record and reach an independent legal conclusion. Id. at 1536. Finally, because certain other matters in bankruptcy are left entirely to the discretion of the bankruptcy judge, this court may i'everse a decision on those issues only if the bankruptcy court abused its discretion. See, e.g., Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 563-64 (7th Cir.1984). In particular, dismissal of a complaint for failure to comply with Rule 4(j)’s 120-day time limit “will be set aside only for an abuse of discretion.” Putnam v. Morris, 833 F.2d 903, 904 (10th Cir.1987). III. ANALYSIS A. Applicability of the “Excusable Neglect” Standard to Rule hQ). Bankruptcy Rule 7004(a) provides for the time and manner of service in adversary proceedings, and incorporates for that purpose the major portion of Rule 4, including Rule 4(j), which is at issue here. Rule 4(j) specifies that if a summons and complaint are not served on the defendant within 120 days after a complaint is filed, and if the plaintiff “cannot show good cause for failure to timely serve,” “the action shall be dismissed as to that defendant without prejudice.” See Fed. R.Civ.P. 4(j) (1990) (emphasis added). Although Rule 4 was amended in 1993, substantively altering Rule 4(j) and codifying it at 4(m), Bankruptcy Rule 7004(g) makes clear that the subdivisions of Rule 4 that were in effect on January 1, 1990 apply to Bankruptcy Rule 7004, “notwithstanding any amendment to Rule 4" } ]

[ { "docid": "18098310", "title": "", "text": "erroneous, and the appellant can demonstrate “the most cogent evidence of mistake of justice.” In re Baker & Getty Fin. Servs., 106 F.3d 1255, 1259 (6th Cir.1997). Conclusions of law are reviewed de novo. In re Zaptocky, 250 F.3d 1020, 1023 (6th Cir.2001). The lower court’s decision to grant an extension of time for service is reviewed for abuse of discretion. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996). The lower court “abuses its discretion when it applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 613 (6th Cir.2002). A. The debtor claims here that the plaintiff was required to demonstrate good cause to obtain an extension of the summons and the time for service, and that the bankruptcy court’s ruling to the contrary was erroneous. The debtor points to several cases decided by the United States Court of Appeals for the Sixth Circuit, discussed below, that appear to condition such extensions on a showing of good cause. At oral argument, however, the debtor’s counsel agreed that there are no Sixth Circuit decisions interpreting the post-1993 version of Federal Rule of Civil Procedure 4 that ordain such a rule, and that statements to that effect in opinions are confined to obiter dicta. This Court is convinced that the bankruptcy court was correct in holding that Rule 4(m) does not mandate a showing of good cause as a prerequisite for the court’s exercise of discretion to extend time for service of a summons and complaint. Former Federal Rule of Civil Procedure 4(j) provided, in relevant part: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. Fed.R.Civ.P. 4(j) (1984) quoted in" }, { "docid": "23632800", "title": "", "text": "be excused for “good cause.” Horenkamp’s failure to timely serve Van Winkle, however, was due to mistake. Therefore, the district court concluded, good cause was not shown. See Prisco v. Frank, 929 F.2d 603, 604 (11th Cir.1991). Nonetheless, the court excused Horenkamp’s untimeliness, holding that it had discretion to do so under Rule 4(m). Noting that Van Winkle had notice of the suit via the request for waiver of service, and that it had now been properly served, the district court extended the time for service so that service was timely and denied the motion to dismiss. The district court granted Van Winkle’s motion to certify this denial for interlocutory appeal, as there is substantial ground for difference of opinion on the issue raised by the denial and an immediate appeal from the district court’s order might materially advance the termination of the litigation. See 28 U.S.C. § 1292(b). II. Prior to the amendments of 1993, the federal rules required a district court to dismiss an untimely served complaint absent a showing of good cause for the failure. Rule 4(j), Fed.R.Civ.P., provided: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. (emphasis added) Rule 4(j), therefore, was clear on its face that a court was required to dismiss a case if service of process was not effected within the 120-day period, unless the plaintiff could demonstrate good cause for the failure to do so. In 1993, however, this rule was amended and re-designated as Rule 4(m) to read as follows: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action" }, { "docid": "18098311", "title": "", "text": "of good cause. At oral argument, however, the debtor’s counsel agreed that there are no Sixth Circuit decisions interpreting the post-1993 version of Federal Rule of Civil Procedure 4 that ordain such a rule, and that statements to that effect in opinions are confined to obiter dicta. This Court is convinced that the bankruptcy court was correct in holding that Rule 4(m) does not mandate a showing of good cause as a prerequisite for the court’s exercise of discretion to extend time for service of a summons and complaint. Former Federal Rule of Civil Procedure 4(j) provided, in relevant part: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. Fed.R.Civ.P. 4(j) (1984) quoted in United States v. Gluklick, 801 F.2d 834, 837 (6th Cir.1986). In 1993, however, the text of subsection (j) was amended and relocated to subsection (m): If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. Fed.R.Civ.P. 4(m) (1994) (emphasis added). The consensus of authority views this Rule as mandating an extension if good cause is demonstrated. See, e.g., Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1307-08 (3d Cir.1995); Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir.1996) (finding that “where good cause is shown, the court has no choice but to extend the time for service”); De Tie v. Orange County, 152" }, { "docid": "11664003", "title": "", "text": "testified to their understanding that they had until September 20, 1994, to achieve service on defendant. They failed, however, to supply any explanation for this misunderstanding. Unexplained assertions of miscalculation do not constitute “good cause.” See Yosef v. Passamaquoddy Tribe, 876 F.2d 283, 287 (2d Cir.1989), cert. denied, 494 U.S. 1028, 110 S.Ct. 1474, 108 L.Ed.2d 611 (1990). Although a small delay in achieving service may not prejudice the defendant, absence of prejudice alone does not constitute good cause. Despain, 13 F.3d at 1439. Moreover, plaintiffs’ affidavits reveal that they waited, apparently for strategic reasons, until the perceived last possible moment to serve defendant. The plaintiff who seeks to rely on the good cause provision must show meticulous efforts to comply with the rule. Id. at 1438. In sum, the bankruptcy court did not abuse its discretion in dismissing this action. The judgment of the United States District Court for the District of Utah is AFFIRMED. . Rule 7004(a) of the Federal Rules of Bankruptcy Procedure makes certain provisions of Fed. R.Civ.P. 4, including Rule 4(j), applicable to adversary proceedings. Rule 7004(g) specifies that the provisions of Rule 4 in effect on January 1, 1990, apply, notwithstanding any subsequent amendment to Rule 4. Rule 4(j) has subsequently been amended, with the new rule being found at Rule 4(m). Former Federal Rule of Civil Procedure 4(j), applicable here, stated: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to each party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (I) of this rule. . Bankruptcy Rule 9006(b)(1) reads as follows: (b) Enlargement (1) In General. Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at" }, { "docid": "10255565", "title": "", "text": "that Fed.R.Bank.P. 7004(f) cannot be looked at in isolation. They contend that under the facts of this case Rule 4(j) mandates the dismissal of the instant adversary proceeding. Though somewhat unartfully pled as a motion for summary judgment, this Court will treat the Defendants’ Motion as a motion to dismiss under Rule 4(j) and/or Fed.R.Civ.P. 12(b)(5), made applicable to this adversary proceeding by Fed.R.Bank.P. 7012(b). Rule 4(j) provides, in relevant part, as follows: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative jvith notice to such party or upon motion.... Fed.R.Civ.P. 4(j) (1990) (emphasis supplied). Within the posture of this case, a violation of the 120-day limitation of Rule 4(j) carries with it a draconian result, ie. dismissal, nominally “without prejudice”, but with actual prejudicial effect. The seemingly benign impact of a dismissal “without prejudice” belies the fatal consequences which attend such a dismissal when the applicable statute of limitations or, as here, the objection deadline, has run as to the subject defendants. E.g., Frasca v. United States, 921 F.2d 450, 453 (2d Cir.1990); In re Sciarretto, 170 B.R. 33, 37 (Bankr.D.Conn.1994). Under Rule 4(j) this Court’s analysis focuses on (1) whether “service ... upon” the Defendants was made within 120 days after the filing of the Complaint; and (2) whether the Plaintiff has shown “good cause” why service was not made within that time-frame. For the purposes of this Memorandum of Decision these issues will be treated in reverse order. A. “Good Cause” Under Rule 4(j). A Bankruptcy Court may relieve a plaintiff from the effect of Rule 4(j)’s 120-day service dictate if the Court finds, in the words of the Rule, “good cause why ... service was not made within that period”. The burden to demonstrate good cause for failure to serve within the 120-day window" }, { "docid": "19160222", "title": "", "text": "to properly effectuate service. Prejudice in this context contemplates loss of evidence, unavailability or other material alteration caused by the delay that would prevent the Debtor from presenting his case. Kadlecek v. Ferguson (In re Ferguson), 210 B.R. 785, 789 (Bankr.N.D.Ill.1997) (citing Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 993 (E.D.N.Y.1995)). No prejudice to the Debtor is found by this court. The Debtor argues that dismissal is also mandated by the Plaintiffs failure to serve copies of the summons and complaint within ten days following issuance of the summons. Fed. R. Bankr.P. 7004(e). However, Fed. R. Bankr.P. 7004(e) provides that “[i]f a summons is not timely delivered or mailed, another summons shall be issued and served.” Thus, the Plaintiffs failure to comply with the ten day time limit was not fatal to her case. See Kadlecek v. Ferguson (In re Ferguson), 204 B.R. 202, 207 (Bankr.N.D.Ill.1997), motion to vacate denied, 210 B.R. 785 (Bankr.N.D.Ill.1997). In exercising its discretion, the court concludes that the Plaintiffs motion for reconsideration will be granted in order to avoid manifest error. Under these circumstances, reconsideration of the court’s ruling is proper. Local Rules W.D. Wash. GR 7(e)(1). The court will enter a separate order consistent with this memorandum decision granting the Plaintiff an additional 30 days to secure a summons and properly effectuate service. . Effective December 1, 1996, Fed.R.Civ.P. 4(m) was added with several other amendments to Rule 7004 to conform the Rule to the 1993 revisions to Fed.R.Civ.P. 4. The 1993 amendment of Fed.R.Civ.P. 4 not only altered the rule’s language, but also moved and redesignated subsections within the rule. . Unless otherwise indicated, all references to Fed.R.Civ.P. 40) is to the former Fed.R.Civ.P. 40) (Rules eff. Aug. 1, 1987)." }, { "docid": "12774732", "title": "", "text": "S.Ct. 978, 99 L.Ed.2d 194 (1988). Finally, because of the equitable tolling principle applied to plaintiffs’ Pennsylvania common law claims for negligent misrepresentation, the limitation period for that cause of action would seem to end two years from March 17,1992, the ostensible date of discovery of the alleged fraud. Manning, 787 F.Supp. at 437. Plaintiffs’ claims are not barred by any applicable statute of limitations or repose. ’ Bule 10)—Individual Grant Thornton Partners The individual partners of Grant Thornton have filed a Motion to Dismiss the Amended Complaint because of plaintiffs’ failure to serve them within 120 days, as required by Fed.R.Civ.P. 4(j). (Document No. 93). Until November 30, 1993, Rule 4(j) provided, in relevant part: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed ... without prejudice.... However, former Rule 4(j) has been amended and relettered, and now provides: (m) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing' of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service he effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. The subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)(l). Fed.R.Civ.P. 4(m) (West 1993 Supplement) (emphasis added). By Order of the Supreme Court of the United States of April 22, 1993, this amendment took effect on December 1, 1993, and “shall govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending.” The Notes of Advisory Committee on the 1993 Amendments to the Federal Rules of Civil" }, { "docid": "23632801", "title": "", "text": "for the failure. Rule 4(j), Fed.R.Civ.P., provided: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. (emphasis added) Rule 4(j), therefore, was clear on its face that a court was required to dismiss a case if service of process was not effected within the 120-day period, unless the plaintiff could demonstrate good cause for the failure to do so. In 1993, however, this rule was amended and re-designated as Rule 4(m) to read as follows: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period .... (emphasis added) Horenkamp argues that the 1993 amendment grants to the district court the discretion to extend the time for service of process, even in the absence of good cause. Van Winkle contends that the amendment did not materially change the rule and that this circuit has so held. While we have not directly addressed this issue before, several district courts in the circuit have interpreted the 1993 amendment to grant discretion to the district court to extend the time for service, even in the absence of good cause. Lau v. Klinger, 46 F.Supp.2d 1377 (S.D.Ga.1999); Madison v. BP Oil Co., 928 F.Supp. 1132 (S.D.Ala.1996). See also Pompey v. Lumpkin, 321 F.Supp.2d 1254, 1262 (M.D.Ala.2004) (“it appears that the Eleventh Circuit cases holding that an extension could not be granted in the absence of good" }, { "docid": "19160214", "title": "", "text": "within 120 days of the complaint being filed, nor was a copy of the issued summons served upon the Debtor within 10 days of issuance as required by Fed. R. Bankr.P. 7004(e). The only explanation offered by Plaintiffs counsel for this failure to properly serve the Debtor is that a legal assistant being trained in his office made an error. The Ninth Circuit has ruled that inadvertence on the part of counsel does not constitute good cause. Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985). Further, neither ignorance of the law nor reliance upon a third party is an excuse for failing to properly serve a party. Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1307 (3d Cir.1995) (citing Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.1987)); Bryant v. Rohr Indus., Inc., 116 F.R.D. 530, 533 (W.D.Wash.1987). The Debtor steadfastly maintains that this court is bound by the decisions in Wei and Kaczmarczik v. Van Meter (In re Van Meter), 175 B.R. 64, 69 (9th Cir. BAP 1994), that held failure to serve a debtor with a filed copy of a complaint within 120 days after filing the complaint required dismissal of the action in the absence of good cause. The Debtor argues that the “good cause” standard as then applied by the Ninth Circuit requires this court to set aside the default judgment and dismiss the Plaintiffs complaint. The Debtor is correct that the Plaintiff has failed to show good cause for failure to effectuate proper service. However, this does not end the court’s inquiry. Relying on Fed.R.Civ.P. 4(m), the Plaintiff alleged for the first time at the hearing on December 12, 1997, and in her motion for reconsideration, that the court, in its discretion, should extend the time for service, even in the absence of good cause. Fed. R. Bankr.P. 7004 was amended effective December 1, 1996, to amend and redesignate former Fed.R.Civ.P. 4(j) as Fed.R.Civ.P. 4(m). Fed.R.Civ.P. 4(m) provides: (m) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing" }, { "docid": "22580865", "title": "", "text": "vacated and the cause is remanded to the district court for proceedings consistent with this opinion. . Fed.R.Civ.P. 4(i)(2) requires that in a suit against the Secretary in his official capacity, the summons and complaint must be served upon the Attorney General of the United States, the Secretary, and the local United States Attorney’s office. . At the time plaintiff filed his complaint, Fed. R.Civ.P. 4(j) provided the time period in which to effect service of process: Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. While plaintiff's case was pending, this rule was amended by current Rule 4(m), effective December 1, 1993. Rule 4(m) provides: Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be 'effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. Under either rule, a party generally has 120 days to serve the summons and complaint upon a defendant unless good cause can be shown for the failure to effect service within this time period. . We need not decide whether prior Rule 4(j) or current Rule 4(m) governs the facts in this case because, under either version, an extension is warranted if plaintiff can show good cause." }, { "docid": "19160215", "title": "", "text": "to serve a debtor with a filed copy of a complaint within 120 days after filing the complaint required dismissal of the action in the absence of good cause. The Debtor argues that the “good cause” standard as then applied by the Ninth Circuit requires this court to set aside the default judgment and dismiss the Plaintiffs complaint. The Debtor is correct that the Plaintiff has failed to show good cause for failure to effectuate proper service. However, this does not end the court’s inquiry. Relying on Fed.R.Civ.P. 4(m), the Plaintiff alleged for the first time at the hearing on December 12, 1997, and in her motion for reconsideration, that the court, in its discretion, should extend the time for service, even in the absence of good cause. Fed. R. Bankr.P. 7004 was amended effective December 1, 1996, to amend and redesignate former Fed.R.Civ.P. 4(j) as Fed.R.Civ.P. 4(m). Fed.R.Civ.P. 4(m) provides: (m) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)(l). Fed.R.Civ.P. 4(m) still requires a court to extend time if good cause is shown, however, the Bankruptcy Appellate Panel for the Ninth Circuit has now recognized that “[t]he new version of the rule explicitly permits the court’s use of discretion to extend the time for service even if the plaintiff fails to show good cause.” Cartage Pacific, Inc. v. Waldner (In re Waldner), 183 B.R. 879, 881 n. 2 (9th Cir.BAP1995). The advisory committee’s note to Fed.R.Civ.P. 4(m) (1993 amendment) specifically authorizes the court to relieve a plaintiff of the consequences of failure to effect service in the" }, { "docid": "22580864", "title": "", "text": "Service to accomplish their respective duties to issue and serve process for plaintiff proceeding in forma pauperis constitutes a showing of good cause under Fed. R.Civ.P. 4. In so holding, we align ourselves with those other Courts of Appeal that confer a showing of automatic good cause on similarly situated plaintiffs. E.g., Dumaguin v. Secretary of Health and Human Servs., 28 F.3d 1218, 1221 (D.C.Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 94, 133 L.Ed.2d 50 (1995) (United States Marshals Service’s failure to effectuate service of process constitutes good cause under Rule 4); Puett v. Blandford, 912 F.2d 270, 276 (9th Cir.1990) (plaintiff should not be penalized for failure to effect service where Marshals Service failed to perform duties required under § 1915(c)); Sellers v. United States, 902 F.2d 598, 602 (7th Cir.1990) (Marshal’s failure to effect service is automatic good cause within Fed. R. Civil P. 4). We therefore decline to hold plaintiff responsible for the court’s failure to effect timely service of his original complaint. III. The order of the district court is vacated and the cause is remanded to the district court for proceedings consistent with this opinion. . Fed.R.Civ.P. 4(i)(2) requires that in a suit against the Secretary in his official capacity, the summons and complaint must be served upon the Attorney General of the United States, the Secretary, and the local United States Attorney’s office. . At the time plaintiff filed his complaint, Fed. R.Civ.P. 4(j) provided the time period in which to effect service of process: Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. While plaintiff's case was pending, this rule was amended by current Rule 4(m), effective December 1, 1993. Rule 4(m) provides: Time Limit for" }, { "docid": "3849885", "title": "", "text": "to the law of the state ...” Pennsylvania Rule of Civil Procedure (“Pa.R.Civ.P.”) 401(a) provides, in relevant part: “Original process shall be served within the Commonwealth within thirty [30] days after the issuance of the writ of the filing of the complaint.” The court finds that, pursuant to the rules, supra, Rondon, through Duane, was effectively served with debtor’s third party complaint. Rather than defend on the merits of the complaint, she has instead opted to maintain the legally untenable position that service was not effected. We conclude that Rondon has been properly served. Rondon is now directed to file an answer to the debtor’s third party complaint within twenty (20) days of the docketing of this opinion and the accompanying order. Furthermore, we deny without prejudice, debtor’s motion for entry of a default judgment against Rondon. (2) Service of Process on Mitchell Moses Unlike Rondon, Moses did not specifically appoint an agent within the jurisdiction of the court; to that end, debtor’s attempts to serve Moses were unsuccessful. Debt- or, then, motioned the court for leave to serve Moses pursuant to B.R. 7004(a). (B.R. 7004 incorporates F.R.Civ.P. 4(i)(l)(E) — alternative provision for service in a foreign country). On November 20, 1991, we granted debtor’s motion and ordered debtor to effect service on Duane; service was accomplished by first class mail on November 27, 1991. Moses, by a motion filed on December 23, 1991, seeks reconsideration of the court’s November 20, 1991, order pursuant to B.R. 7004(f), B.R. 9014, Local B.R. (“L.B.R.”) 9014.-1(b)(2) and Fed.R.Civ.P. 4© or, in the alternative, dismissal of the third party complaint pursuant to Fed.R.Civ.P. 4(j) and Fed.R.Civ.P. 12(b)(2, 5, 6), respectively. (a) Motion for Reconsideration B.R. 7004(f) (summons: time limit for service) in relevant part provides. “If service is made pursuant to Fed. R.Civ.P. 4(d)(l-6) ... by any form of mail, the summons and complaint shall be deposited in the mail within 10 days following issuance of the summons. If a summons is not timely delivered or mailed, another summons shall be issued and served.” Moses’ memorandum discussing the legal underpinnings of B.R. 7004(f), although" }, { "docid": "22062431", "title": "", "text": "Secretary of State was ineffective as service on Jake Diel. Thus, Jake Diel was not served within the 120-day period required by the rule. Indeed, it would have been error as a matter of law for the district court to enter a default judgment against Jake Diel when it was never served. B. Denial of Motion to Extend Time for Service Petrucelli next argues that the district court should have granted his alterna-five motion for an extension of the 120-day limit to serve Jake Diel, pursuant to Rule 4(j). When Petrucelli argued his motion to extend time for service before the district court in May of 1992 and when the district court entered its memorandum order in August of 1992 denying Petrueelli’s motion, former Rule 4(j) had not yet been amended. In 1992, Rule 4(j) read in pertinent part: Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. Fed.R.Civ.P. 4(j) (1991) (emphasis added). Under this rule, a district court was required to dismiss a case if service of process was not effected within the 120 day period, unless the plaintiff showed good cause for the delinquency. As of December 1, 1993, Rule 4(j) was amended and redesignated as Rule 4(m). While the change in designation from (j) to (m) is of no import, the language in this subdivision was substantially modified. Although counsel for Petrucelli failed to bring this substantive change to our attention, our own research has revealed this critical change in the rule. Initially, we question whether Rule 4(m) applies to these proceedings in light of the fact that service of process was attempt ed in 1991, two years prior to the rule change. If former Rule 4(j) still applies to this" }, { "docid": "11664004", "title": "", "text": "4(j), applicable to adversary proceedings. Rule 7004(g) specifies that the provisions of Rule 4 in effect on January 1, 1990, apply, notwithstanding any subsequent amendment to Rule 4. Rule 4(j) has subsequently been amended, with the new rule being found at Rule 4(m). Former Federal Rule of Civil Procedure 4(j), applicable here, stated: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to each party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (I) of this rule. . Bankruptcy Rule 9006(b)(1) reads as follows: (b) Enlargement (1) In General. Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . It should be noted that in Putnam, the court discussed \"excusable neglect” under Fed. R.Civ.P. 6(b). Bankruptcy Rule 9006(b)(1) is patterned after Rule 6(b) and serves a similar purpose. See Pioneer, 507 U.S. at 391, 113 S.Ct. at 1496. . The interrelationship of these two rules suggests that plaintiffs might have brought themselves within the \"excusable neglect” standard by filing a motion requesting extension of time for service under Rule 9006(b)(1). See Kalesse, Inc. v. Williams (In re Williams), 178 B.R. 255," }, { "docid": "10255564", "title": "", "text": "the summons and complaint shall be deposited in the mail within 10 days following issuance of the summons. If a summons is not timely ... mailed, another summons shall be issued and served.” In this case the Plaintiff admits that its purported mail service on the eleventh day following the Issuance Date was untimely under Fed.R.Bank.P. 7004(f). Yet it argues that the consequence of such untimely service should be, at worst, a required re-serving of the Defendants under an alias summons. The Plaintiff is correct, at least insofar as Fed.R.Bank.P. 7004(f) is concerned. This ten-day rule is plainly and logically crafted with a view toward alleviating any prejudice which may arise if a defendant’s responsive pleading window (ie. thirty (30) days from summons’ issuance) is unduly narrowed or eliminated by late service of process. This intent is confirmed by the nature of the remedy prescribed for non-compliance with the rule: the issuance of a new summons so as to schedule a new and adequate time for responsive pleading. However, the gravamen of Defendants’ argument is that Fed.R.Bank.P. 7004(f) cannot be looked at in isolation. They contend that under the facts of this case Rule 4(j) mandates the dismissal of the instant adversary proceeding. Though somewhat unartfully pled as a motion for summary judgment, this Court will treat the Defendants’ Motion as a motion to dismiss under Rule 4(j) and/or Fed.R.Civ.P. 12(b)(5), made applicable to this adversary proceeding by Fed.R.Bank.P. 7012(b). Rule 4(j) provides, in relevant part, as follows: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative jvith notice to such party or upon motion.... Fed.R.Civ.P. 4(j) (1990) (emphasis supplied). Within the posture of this case, a violation of the 120-day limitation of Rule 4(j) carries with it a draconian result, ie. dismissal, nominally “without prejudice”, but with" }, { "docid": "19160213", "title": "", "text": "and request for additional time to effectuate proper service upon the Debtor, pursuant to Fed.R.Civ.P. 4(m), which is made applicable to adversary proceedings by Fed. R. Bankr.P. 7004(a). JURISDICTION This is a core proceeding within this court’s jurisdiction. 28 U.S.C. §§ 157(b)(2)(I) and 1334; Local Rules W.D. Wash. GR 7(e); Local Rules W.D. Wash. Bankr.9013-l(h). DISCUSSION AND CONCLUSIONS OF LAW Fed. R. Bankr.P. 7004 governs service of process in adversary proceedings and dictates which sections of Fed.R.Civ.P. 4 apply. Prior to December 1,1996, the time limits for service of process in adversary proceedings were governed by former Fed.R.Civ.P. 4(j)(Rules eff. Aug. 1,1987). In accordance with former Fed.R.Civ.P. 4(j), a plaintiff had 120 days to properly serve the summons and complaint upon a defendant. A court was required to dismiss a case if service of process was not properly made upon a defendant within the 120 day period, unless the plaintiff could show good cause why such service was not made. Former Fed.R.Civ.P. 4(j). The Plaintiff admits that proper service was not made upon the Debtor within 120 days of the complaint being filed, nor was a copy of the issued summons served upon the Debtor within 10 days of issuance as required by Fed. R. Bankr.P. 7004(e). The only explanation offered by Plaintiffs counsel for this failure to properly serve the Debtor is that a legal assistant being trained in his office made an error. The Ninth Circuit has ruled that inadvertence on the part of counsel does not constitute good cause. Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985). Further, neither ignorance of the law nor reliance upon a third party is an excuse for failing to properly serve a party. Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1307 (3d Cir.1995) (citing Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.1987)); Bryant v. Rohr Indus., Inc., 116 F.R.D. 530, 533 (W.D.Wash.1987). The Debtor steadfastly maintains that this court is bound by the decisions in Wei and Kaczmarczik v. Van Meter (In re Van Meter), 175 B.R. 64, 69 (9th Cir. BAP 1994), that held failure" }, { "docid": "9359234", "title": "", "text": "in substance that we may dismiss a complaint for insufficiency of process and insufficiency of service of process, respectively. Fed.R.Civ.P. 12(b)(4) and (b)(5). . Rule 7004(a) makes Fed.R.Civ.P. 4(a), (b), (c)(1), (d)(1), (e)-(j), (l) and (m) applicable herein. Fed.R.Bankr.P. 4(a). . At the time that the Committee effected service of the Complaint, Rule 7004(e) provided as follows: If service is made pursuant to Rule 4(e)—(j) F.R.Civ.P., it shall be made by delivery of the summons and complaint within 10 days following the issuance of the summons. If service is by any authorized form of mail, the summons and complaint shall be deposited in the mail within 10 days following issuance of the summons. If a summons is not timely delivered or mailed, another summons shall be issued and served. Fed.R.Bankr.P. 7004(e) (amended effective Dec. 1, 1999). It now provides as follows: Service made under Rule 4(e), (g), (h)(1), (i), or (j)(2) F.R.Civ.P. shall be by delivery of the summons and complaint within 10 days after the summons is issued. If service is by any authorized form of mail, the summons and complaint shall be deposited in the mail within 10 days after the summons is issued. If a summons is not timely delivered or mailed, another summons shall be issued and served. This subdivision does not apply to service in a foreign country. Fed.R.Bankr.P. 7004(e). .Rule 7041 makes Fed.R.Civ.P. 41 applicable herein. That rule provides as follows: (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. Fed.R.Civ.P. 41(b)." }, { "docid": "9359233", "title": "", "text": "contractual forum selection clauses in non-core proceedings or actions initiated by debtors. See In re Diaz Contracting, Inc., 817 F.2d 1047 (3d Cir.1987); Envirolite Enters. v. Glastechnische Industrie Peter Lisec Gesellschaft M.B.H., 53 B.R. 1007 (S.D.N.Y.1985), aff'd, 788 F.2d 5 (2d Cir.1986). These cases are inapposite because this proceeding is within our core jurisdiction. See 28 U.S.C. § 157(b)(2)(F) and (H). . Thai rule provides as follows: (m) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own-initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (Í) or (j)(l). Fed.R.Civ.P. 4(m). . Rules 12(b)(4) and (b)(5) provide in substance that we may dismiss a complaint for insufficiency of process and insufficiency of service of process, respectively. Fed.R.Civ.P. 12(b)(4) and (b)(5). . Rule 7004(a) makes Fed.R.Civ.P. 4(a), (b), (c)(1), (d)(1), (e)-(j), (l) and (m) applicable herein. Fed.R.Bankr.P. 4(a). . At the time that the Committee effected service of the Complaint, Rule 7004(e) provided as follows: If service is made pursuant to Rule 4(e)—(j) F.R.Civ.P., it shall be made by delivery of the summons and complaint within 10 days following the issuance of the summons. If service is by any authorized form of mail, the summons and complaint shall be deposited in the mail within 10 days following issuance of the summons. If a summons is not timely delivered or mailed, another summons shall be issued and served. Fed.R.Bankr.P. 7004(e) (amended effective Dec. 1, 1999). It now provides as follows: Service made under Rule 4(e), (g), (h)(1), (i), or (j)(2) F.R.Civ.P. shall be by delivery of the summons and complaint within 10 days after the summons is issued. If service is by any authorized" }, { "docid": "19160212", "title": "", "text": "that the summons and complaint were served upon the Debtor and his attorney on August 11,1997. The remaining deficiencies pointed out to the Plaintiff by the court were corrected. An order of default and default judgment were signed by the court on November 10, 1997, based in part upon the declarations of mailing that the summons and complaint had been properly served upon the Debtor and his attorney on July 21,1997. On November 17, 1997, the Debtor filed a Motion to Set Aside Default Judgment and to Dismiss Complaint with Prejudice for failure to effectuate proper service upon the Debtor within 120 days of the filing of the complaint. The Debtor’s motion was heard by the court on December 11, 1997. On December 12, 1997, the court entered Debtor’s Order on Motion to Set Aside Default Judgment and to Dismiss Complaint with Prejudice. On December 22, 1997, the Plaintiff filed a motion requesting that the court reconsider its December 12,1997 order. ISSUE Whether the circumstances of this case justify granting the Plaintiff’s motion for reconsideration and request for additional time to effectuate proper service upon the Debtor, pursuant to Fed.R.Civ.P. 4(m), which is made applicable to adversary proceedings by Fed. R. Bankr.P. 7004(a). JURISDICTION This is a core proceeding within this court’s jurisdiction. 28 U.S.C. §§ 157(b)(2)(I) and 1334; Local Rules W.D. Wash. GR 7(e); Local Rules W.D. Wash. Bankr.9013-l(h). DISCUSSION AND CONCLUSIONS OF LAW Fed. R. Bankr.P. 7004 governs service of process in adversary proceedings and dictates which sections of Fed.R.Civ.P. 4 apply. Prior to December 1,1996, the time limits for service of process in adversary proceedings were governed by former Fed.R.Civ.P. 4(j)(Rules eff. Aug. 1,1987). In accordance with former Fed.R.Civ.P. 4(j), a plaintiff had 120 days to properly serve the summons and complaint upon a defendant. A court was required to dismiss a case if service of process was not properly made upon a defendant within the 120 day period, unless the plaintiff could show good cause why such service was not made. Former Fed.R.Civ.P. 4(j). The Plaintiff admits that proper service was not made upon the Debtor" } ]

[ { "docid": "22671410", "title": "", "text": "waiver, the government will file a “Motion for Enforcement of the Plea Agreement.” This motion will address the three-prong enforcement analysis provided above, but not the underlying merits of the defendant’s appeal. The defendant will then have the opportunity to respond. The Clerk of the Court will forward the government’s motion, and any responding briefs, to the panel. The parties will not be directed to brief the underlying merits of the defendant’s appeal. If the panel finds that the plea agreement is enforceable, it will summarily dismiss the appeal. If the panel finds the plea agreement unenforceable, it will issue a ruling consistent with this finding. Currently, 10th Cir. R. 27.2(A)(1) allows only three types of dispositive motions. The approach outlined above requires the addition of a fourth type of motion. We will amend the rules accordingly. C. Application To Mr. Hahn’s Appeal We now apply the above-outlined three-prong enforcement analysis to Mr. Hahn’s appeal, enforce Mr. Hahn’s waiver, and dismiss. 1. Scope of Mr. Hahn’s Waiver Mr. Hahn’s current appeal falls within the scope of his waiver of appellate rights. Although we narrowly construe the scope of Mr. Hahn’s waiver of appellate rights, Chavez-Salais, 337 F.3d at 1173, “[t]his court will hold a defendant to the terms of a lawful plea agreement!,]” Atterberry, 144 F.3d 1299,1300 (10th Cir.1998). Mr. Hahn signed a broad waiver of appellate rights. It states that he “knowingly waive[d] the right to appeal any sentence within the maximum provided in the statutes of conviction or the manner in the which that sentence was determined on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever.” Mr. Hahn’s argument — that the district court failed to recognize its discretion to impose the sentence in this case concurrently with the sentence in the marijuana- and-firearms case — unambiguously falls within the scope of this waiver. Moreover, nothing in the record indicates that he retained the right to appeal this sentencing question. We conclude, therefore, that this appeal falls within the scope of Mr. Hahn’s waiver. 2. Knowing and Voluntariness of" } ]

[ { "docid": "19922843", "title": "", "text": "the guideline range determined appropriate by the court.” Id. The district court sentenced Novosel to sixty months’ imprisonment on each count, to be served consecutively. This sentence was at the statutory mandatory minimum of not less than five years’ imprisonment for each count. No-vosel states in his docketing statement that he seeks to raise on appeal three ineffective assistance of counsel claims, two claims of sentencing error, and a claim that he did not knowingly and voluntarily enter into the plea agreement. In Hahn, this court held that a waiver of appellate rights will be enforced if (1) “the disputed appeal falls within the scope of the waiver of appellate rights;” (2) “the defendant knowingly and voluntarily waived his appellate rights;” and (3) “enforcing the waiver would [not] result in a miscarriage of justice.” 359 F.3d at 1325. The miscarriage-of-justice prong requires the defendant to show (a) his sentence relied on an impermissible factor such as race; (b) ineffective assistance of counsel in connection with the negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful and the error “seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 1327 (quotations omitted). The government’s motion to enforce addresses all of these considerations, asserting that none of them undermines defendant’s appeal waiver. As a threshold matter, Novosel contends that the government’s motion to enforce the appeal waiver was untimely filed under 10th Cir. R. 27.2(A)(3), which provides that such motions “must be filed within 15 days after the notice of appeal is filed.” The cited rule also allows for late filing “upon a showing of good cause,” and, upon review of the government’s motion and reply brief, we conclude that cause has been shown for the delayed filing here. Turning to the merits, Novosel contends, presumably under the miscarriage-of-justice-prong, that his appeal waiver is unenforceable. He argues that he agreed to a plea bargain that did not include an appeal waiver provision and, although he subsequently agreed to include an appeal waiver provision in" }, { "docid": "22705872", "title": "", "text": "was ineffective under the test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In response, the government filed a motion to dismiss the § 2255 motion because “Defendant knowingly and voluntarily waived his appellate rights[, including the right to post-conviction relief,] as part of a lawful plea agreement.” R., Vol. 1, Doc. 4 at 4. In a summary order, the district court denied Defendant’s § 2255 motion. See id. at Doc. 7. The court found that Defendant had waived his right to appellate relief, including the right to postconviction relief, and that the waiver was enforceable because it was voluntarily and knowingly made. See id. This appeal followed, and we issued a certificate of appealability on the issue of whether, in a plea agreement, a defendant can waive the right to collaterally attack a sentence under 28 U.S.C. § 2255 when his § 2255 motion alleges ineffective assistance of counsel. On appeal, Defendant argues that his claim of ineffective representation at sentencing survives the general waiver because (1) the agreement implicitly assumed that counsel would act within constitutional bounds and (2) such an extensive waiver would be inconsistent with the special protections that apply to waivers of the right to counsel. He also contends that the waiver does not apply to his ineffectiveness claim relating to the legitimacy of his § 924(c) conviction because the waiver was directed only at sentencing issues. In his pro se brief, Defendant argues that the waiver of postconviction proceedings was not knowingly made because he was not specifically informed by the district court about the postconviction relief waiver and because he could not “waive an as yet unknown constitutional violation.” Appellant’s Br. at 15. In reviewing the denial of a § 2255 motion, we review the district court’s legal rulings de novo and its findings of fact for clear error. See United States v. Cox, 83 F.3d 336, 338 (10th Cir.1996). Whether a defendant can waive his right to collateral review under § 2255 is a question of law that we review de novo. See Jones" }, { "docid": "23290933", "title": "", "text": "have held that a defense attorney does not render ineffective assistance by failing to file a notice of appeal where the defendant has effectively waived his right to appeal.” R., Doc. 835, at 4 & n.4. This proposition cannot be reconciled with the Supreme Court’s holding in Flores-Ortega and this court’s statements in Snitz, In fact, whether or not Mr. Garrett instructed his attorney to file a notice of appeal is the crux of his § 2255 case. Mr. Garrett’s appellate rights have been significantly limited by his waiver, but the waiver does not foreclose all appel late review of his sentence. See Hahn, 359 F.3d at 1318. If Mr. Garrett actually-asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal. See Snitz, 342 F.3d at 1157. This is true regardless of whether, from the limited perspective of collateral review, it appears that the appeal will not have any merit. Flores-Ortega, 528 U.S. at 477, 484-85, 120 S.Ct. 1029; Snitz, 342 F.3d at 1155-56. Any resulting criminal appeal will initially be evaluated under the summary procedure and analysis described in Hahn, 359 F.3d at 1328. We vacate the district court’s order and remand this case for a hearing to determine whether Mr. Garrett requested counsel to file a notice of appeal. Mr. Garrett’s motion for leave to proceed in forma pauperis is GRANTED, as is the government’s motion to supplement the record on appeal. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . The pertinent provision of the plea agreement states: [Mr. Garrett], in exchange for the promises and concessions made by the United States in this plea agreement, knowingly and voluntarily waives his right to appeal or collaterally challenge: a. Defendant’s guilty plea and any other aspects of his conviction.... b. Defendant's sentence as imposed by the Court and the manner in which the sentence" }, { "docid": "7468513", "title": "", "text": "fair and just reason to withdraw his plea pursuant to Rule 11(d)(2)(B), which states that “[a] defendant may withdraw a plea of guilty or nolo contendere ... after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason for requesting the withdrawal.” The government contends that Salas-Garcia did not reserve the right in his plea agreement to challenge the district court’s denial of his motion to set aside his guilty plea, and as a result, he cannot appeal this issue with this court. Whether an issue is within the scope of an appellate waiver is a legal question that this court reviews de novo. Hahn, 359 F.3d at 1325. We have adopted a three-prong analysis to review appeals brought after a defendant has entered into an appeal waiver: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” Id. Where an appeal of a denial of a motion to withdraw a guilty plea falls within the plain language of an appeal waiver provision, we have applied Hahn and enforced the waiver. See, e.g., United States v. Leon, 476 F.3d 829, 832 (10th Cir.2007) (per curiam). Under the first prong of the Hahn test, Salas-Garcia’s appeal of the district court’s denial on his motion to withdraw his guilty plea falls within the scope of his waiver of appellate rights. In determining the scope of a waiver, the court “narrowly construe[s] the scope of ... waiver of appellate rights ... [but] ‘will hold a defendant to the terms of a lawful plea agreement.’” Hahn, 359 F.3d at 1328 (citation omitted) (quoting United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir.1998)). Salas-Garcia entered into a conditional guilty plea, reserving his right to appeal the district court’s order denying his motion to suppress. Aside from reservation of his right to appeal the motion to suppress, Salas-Garcia signed a broad waiver of appellate rights." }, { "docid": "22962137", "title": "", "text": "circumstances I find that you qualify as a career offender, not to mention you have endangered the lives of your children for years now. I don’t see anything yet that has given you enough incentive to stop a very, very dangerous practice.” Judgment was entered on Mr. Wilken’s sentence on February 6, 2006. Mr. Wilken filed a timely notice of appeal the following day. II. DISCUSSION A. Validity of Mr. Wilken’s waiver of appeal We have jurisdiction pursuant to 28 U.S.C. § 1291. See United States v. Hahn, 359 F.3d 1315, 1322 (10th Cir.2004) (en banc) (“[W]e have statutory subject matter jurisdiction under § 1291 over sentencing appeals even when the defendant has waived his right to appeal in an enforceable plea agreement.”). We begin by addressing the predicate issue of whether Mr. Wilken waived his right to appeal; if so, we must dismiss his appeal without reaching its merits, see id. at 1328. Our review of an appellate waiver is governed by the three-part inquiry we articulated in Hahn: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.... ” Id. at 1325. Mr. Wilken’s primary argument against enforcement of his waiver implicates both the first and second prongs of the Hahn analysis: he argues that, although the language of his plea agreement contained a clear waiver of his right to appeal, the scope of that waiver became ambiguous after the sentencing court’s statements and therefore, at the time he pled guilty and signed the plea agreement, any waiver of his right to appeal an unreasonable sentence was not knowing or voluntary. We agree that the sentencing court’s explanation of the waiver differed substantially from that in the written plea agreement: while the written waiver left Mr. Wilken with the right to appeal only “a sentence above the maximum penalty provided in the statute of conviction,” the court explained to Mr. Wilken that he also had the right to appeal" }, { "docid": "19922842", "title": "", "text": "PER CURIAM. Defendant Gregory A. Novosel pled guilty to one count of conspiracy to manufacture and possess more than 100 marijuana plants in violation of 21 U.S.C. §§ 841 and 846, and one count of aiding and abetting the use of a firearm during and in relation to and in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924. He did so pursuant to a plea agreement that included a waiver of his right to appeal. Novosel filed a notice of appeal and the government has now moved to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam). We grant the motion and dismiss the appeal. Under the terms of the plea agreement accepted by the district court, Novosel “knowingly and voluntary waive[d] any right to appeal or collaterally attack any matter in connection with [his] prosecution, conviction or sentence.” Plea Agreement at 7 (filed Oct. 18, 2005). More specifically, he waived “any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court.” Id. The district court sentenced Novosel to sixty months’ imprisonment on each count, to be served consecutively. This sentence was at the statutory mandatory minimum of not less than five years’ imprisonment for each count. No-vosel states in his docketing statement that he seeks to raise on appeal three ineffective assistance of counsel claims, two claims of sentencing error, and a claim that he did not knowingly and voluntarily enter into the plea agreement. In Hahn, this court held that a waiver of appellate rights will be enforced if (1) “the disputed appeal falls within the scope of the waiver of appellate rights;” (2) “the defendant knowingly and voluntarily waived his appellate rights;” and (3) “enforcing the waiver would [not] result in a miscarriage of justice.” 359 F.3d at 1325. The miscarriage-of-justice prong requires the defendant to show (a) his sentence relied on an impermissible factor such as race; (b) ineffective assistance of counsel in connection with the negotiation of the appeal waiver rendered the waiver invalid;" }, { "docid": "4841518", "title": "", "text": "agreement as long as three elements are met: (1) “the disputed appeal falls within the scope of the waiver of appellate rights”; (2) “the defendant knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325. In his response to the government’s motion, Tanner concedes his appeal is within the scope of the waiver. He argues, however, that the record does not affirmatively show his waiver to be knowing and voluntary and enforcing it would be a miscarriage of justice. “We only enforce waivers that defendants enter into knowingly and voluntarily.” Id. at 1328-29. “Nevertheless, it is the defendant who bears the burden of demonstrating [his] waiver was not knowing and voluntary.” United States v. White, 584 F.3d 935, 948 (10th Cir.2009) (alteration in original) (internal quotation marks omitted); United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir.2003) (defendant “has the burden to present evidence from the record establishing that he did not understand the waiver”). In determining whether a defendant waived his appellate rights knowingly and voluntarily, “we especially look to two factors.” Hahn, 359 F.3d at 1325. The first factor is “whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily” and the second is whether there was “an adequate Federal Rule of Criminal Procedure 11 colloquy.” Id. Seizing on that language, Tanner claims we cannot conclude his appeal waiver was knowing and voluntary unless there was a specific discussion about it during the Rule 11 colloquy. That is so, he says, because Rule 11 directs the district court to “inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence,” Fed.R.Crim.P. ll(b)(l)(N). He assumes too much. Determining whether a defendant knovsdngly and voluntarily waived his rights is a question of law, see, e.g., United States v. Vidal, 561 F.3d 1113, 1118 (10th Cir.2009) (guilty plea); United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 n. 4 (10th Cir.2008) (plea" }, { "docid": "22604666", "title": "", "text": "a brief to the client and the appellate court indicating any potential appealable issues based on the record. Id. The client may then choose to submit arguments to the court. Id. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. Id. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. Id. After a full examination of the record and consideration of both Mr. Calderon’s response brief and the Anders brief filed by Attorney Breeze, we determine that there are no non-frivolous issues upon which Mr. Calderon has a basis for appeal. I. Appeal Waiver Attorney Breeze argues in his Anders brief that the appeal waiver in Mr. Calderon’s plea agreement bars this Court’s review of Mr. Calderon’s sentence, and therefore renders his appeal wholly frivolous. While the appeal waiver might well have provided a basis for dismissal of the appeal, had it been raised, this Court’s precedents preclude dismissal on the basis of a waiver of appeal where the government has neither filed a motion to enforce the waiver nor raised the waiver in its brief. This Court recently refused to enforce a defendant’s waiver in her plea agreement of her right to raise a Booker argument on appeal because the government “neither filed a motion to enforce Clark’s plea agreement,” (citing United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.2004)) (en banc), “nor argued in its brief that we should dismiss Clark’s appeal on the basis of her appellate rights waiver.” United States v. Clark, 415 F.3d 1234, 1238 n. 1 (10th Cir.2005) (citing United States v. Clayton, 416 F.3d 1236, 1239 (10th Cir.2005) (decided three days after Clark)). Although the government is accorded flexibility in the form of its request for enforcement of an appeal waiver, Clayton holds that the waiver is waived when the govern ment utterly neglects to invoke .the waiver in this Court. Clayton, 416 F.3d at 1238-39. This case is arguably distinguishable from Clayton because here, unlike" }, { "docid": "3665415", "title": "", "text": "ORDER AND JUDGMENT PER CURIAM. This matter is before the court on the government’s motion to enforce the appeal waiver contained in defendant’s plea agreement. The motion is filed pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc). In response, defendant concedes that the government’s motion is well taken and that the appeal should be dismissed. Accordingly, the government’s motion is GRANTED, and the appeal is DISMISSED. The mandate shall issue forthwith. This panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1." }, { "docid": "23323705", "title": "", "text": "to determine: (1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. Id. (quoting Hahn, 359 F.3d at 1325); see also United States v. Shockey, 538 F.3d 1355, 1357 & n. 2 (10th Cir.2008). i. Whether Richardson’s new arguments fall within his appeal waiver In his plea agreement, Richardson waived his right to appeal with the exception of “only those issues raised and subsequently denied by the Court with regard to the defendant’s motion to suppress.” (R. (Richardson) v. 1, doc. 112, plea agreement at 7, para. 11 (emphasis added).) That language clearly precludes Richardson from raising on appeal any new arguments in support of his suppression motion. See Anderson, 374 F.3d at 957-58 (holding appeal waiver in conditional guilty plea agreement precluded defendant from asserting new argument on appeal in support of suppression motion); see also United States v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th Cir.2008) (noting that, “[w]hen considering whether an appeal falls within the scope of a waiver of appellate rights, the general rule is that any appellate rights not expressly reserved are waived”). ii. Whether Richardson’s appeal waiver was knowing and voluntary This court will “only enforce appeal waivers to which the defendant knowingly and voluntarily agreed.” Anderson, 374 F.3d at 958. Nevertheless, it is the defendant who “bears the burden of demonstrating [his] waiver was not knowing and voluntary.” Ibarra-Coronel, 517 F.3d at 1222. And here, Richardson makes no such no argument. See Anderson, 374 F.3d at 958-59 (treating appeal waiver as knowing and voluntary where defendant did not address the issue on appeal); see also Lyons, 510 F.3d at 1233 (deeming appeal waiver to be knowing and voluntary where defendant did not specifically address that issue in his opening brief and did not file a reply brief). iii. Miscarriage of justice This court will still not enforce an appeal waiver made in a plea agreement if doing so would result in a miscarriage of justice." }, { "docid": "23290934", "title": "", "text": "criminal appeal will initially be evaluated under the summary procedure and analysis described in Hahn, 359 F.3d at 1328. We vacate the district court’s order and remand this case for a hearing to determine whether Mr. Garrett requested counsel to file a notice of appeal. Mr. Garrett’s motion for leave to proceed in forma pauperis is GRANTED, as is the government’s motion to supplement the record on appeal. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . The pertinent provision of the plea agreement states: [Mr. Garrett], in exchange for the promises and concessions made by the United States in this plea agreement, knowingly and voluntarily waives his right to appeal or collaterally challenge: a. Defendant’s guilty plea and any other aspects of his conviction.... b. Defendant's sentence as imposed by the Court and the manner in which the sentence is determined, provided the sentence is within or below the applicable guideline range determined by the Court to apply to this case, even if the Court rejects one or more of the positions of the United States or the defendant ... concerning the application of the U.S. Sentencing Guidelines; provided that (i) defendant specifically does not waive the right to appeal an upward departure from the sentencing guideline range determined by the Court to apply to this case, and (ii) his waiver of rights to appeal and to bring collateral challenges shall not apply to appeals or challenges based on changes in the law reflected in Tenth Circuit or Supreme Court cases decided after the date of this agreement which are held by the Tenth Circuit or Supreme Court to have retroactive effect. R., Doc. 403, at 8-9. . Though the COA order specified the issue on which defendant \"made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c), the government's brief failed to respond to this court's question. Indeed," }, { "docid": "4841517", "title": "", "text": "PER CURIAM. Robert Clifton Tanner was charged with four counts of mail fraud. He entered into a plea agreement with the United States pursuant to Fed.R.Crim.P. 11(c)(1)(C) in which he agreed to plead guilty to one count of mail fraud for which he would receive a stipulated sentence of 30 months’ imprisonment. The district court accepted Tanner’s guilty plea and sentenced him to the agreed 30 months’ imprisonment. As part of his plea agreement, Tanner waived his right to appeal unless the punishment imposed was greater than the parties had agreed. Despite this waiver and the imposition of the agreed sentence, Tanner brought this appeal claiming his sentence was illegal. The government has moved to enforce the appeal waiver, in accordance with United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.2004) (en banc) (per curiam). We grant the government’s motion. “This court will hold a defendant to the terms of a lawful plea agreement.” United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir.1998). And we will enforce an appeal waiver in a plea agreement as long as three elements are met: (1) “the disputed appeal falls within the scope of the waiver of appellate rights”; (2) “the defendant knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325. In his response to the government’s motion, Tanner concedes his appeal is within the scope of the waiver. He argues, however, that the record does not affirmatively show his waiver to be knowing and voluntary and enforcing it would be a miscarriage of justice. “We only enforce waivers that defendants enter into knowingly and voluntarily.” Id. at 1328-29. “Nevertheless, it is the defendant who bears the burden of demonstrating [his] waiver was not knowing and voluntary.” United States v. White, 584 F.3d 935, 948 (10th Cir.2009) (alteration in original) (internal quotation marks omitted); United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir.2003) (defendant “has the burden to present evidence from the record establishing that he did not understand the waiver”). In determining whether a" }, { "docid": "18021184", "title": "", "text": "this agreement. Plea Agreement at 12. Jennings acknowledged at his change of plea hearing that he understood the waiver of his appellate rights. Between the district court’s acceptance of Jennings’s guilty plea and imposition of sentence, Jennings filed three motions to withdraw his guilty plea, one of which contended that he “acted hastily” and received ineffective assistance of counsel in connection with entry of the plea. Jennings’s Br. at 18. The district court denied all three motions, and Jennings was sentenced on October 6, 2010. Jennings, though represented by counsel, filed a pro se notice of appeal in a letter dated October 11, 2010. Jennings’s attorney filed a notice of appeal on October 22, 2010. Earlier on October 22, 2010, the government filed a notice of appeal, apparently based on the restitution order. The government subsequently filed a motion to dismiss its notice of appeal, which we granted on January 25, 2011. II. “As a general rule, a defendant is allowed to waive appellate rights.” United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003) (en banc). “When reviewing a purported waiver, we must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily.” Id. at 889-90. “Even when these conditions are met, however, we will not enforce a waiver where to do so would result in a miscarriage of justice.” Id. at 890. Jennings does not dispute that his waiver and plea agreement were knowingly and voluntarily entered. Prior to concluding that Jennings knowingly and voluntarily entered into the plea agreement, the district court thoroughly questioned Jennings about his decision to enter into the agreement and waive his appellate rights. See id. at 890-91 (“One important way a district court can help ensure that a plea agreement and corresponding waiver are entered into knowingly and voluntarily is to properly question a defendant about his or her decision to enter that agreement and waive the right to appeal.”). The issue, therefore, is whether Jennings’s appeal falls within the scope of the waiver and, if so," }, { "docid": "23290932", "title": "", "text": "the disputed appeal falls within the scope of defendant’s waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. Id. at 1325. “If the panel finds that the plea agreement is enforceable, it will summarily dismiss the appeal” without considering its underlying merits. Id. at 1328. A summary and efficient dismissal of a waived appeal “preserve[s] the benefit of the government’s bargain.” Id. 3. Application to Mr. Garrett’s § 2255 motion Here, Mr. Garrett signed a plea agreement waiving many of his appellate rights. The present record shows that he and his attorney consulted about the possibility of an appeal of his sentence. The two parties, however, recount different versions of their discussion. Mr. Garrett asserts that he requested his attorney to file a notice of appeal; his attorney claims that Mr. Garrett did not explicitly ask for an appeal. The district court decided that a resolution of this factual dispute was unnecessary because “[m]ost courts ... have held that a defense attorney does not render ineffective assistance by failing to file a notice of appeal where the defendant has effectively waived his right to appeal.” R., Doc. 835, at 4 & n.4. This proposition cannot be reconciled with the Supreme Court’s holding in Flores-Ortega and this court’s statements in Snitz, In fact, whether or not Mr. Garrett instructed his attorney to file a notice of appeal is the crux of his § 2255 case. Mr. Garrett’s appellate rights have been significantly limited by his waiver, but the waiver does not foreclose all appel late review of his sentence. See Hahn, 359 F.3d at 1318. If Mr. Garrett actually-asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal. See Snitz, 342 F.3d at 1157. This is true regardless of whether, from the limited perspective of collateral review, it appears that the appeal will not have any merit. Flores-Ortega, 528 U.S. at 477, 484-85, 120 S.Ct. 1029; Snitz, 342 F.3d at 1155-56. Any resulting" }, { "docid": "22270226", "title": "", "text": "bargain at the heart of the agreement — without the defendant’s waiver of his right to appeal, the Government might not have been willing to dismiss four of the five counts contained in the indictment. Having approved the plea agreement, the district court had no more right to change its terms than it would have to change the terms of any other contract. Id. at 1169; see also United States v. Ritsema, 89 F.3d 392, 398-99 (7th Cir. 1996) (noting that under Fed.R.Crim.P. 11, “[o]nce the court has accepted 'a plea agreement, however, it is, as a general rule, bound by the terms of that agreement”). Although the sentencing court may modify plea agreements in certain exceptional circumstances (for example, for reasons of public policy or in instances of fraud on the court, see, e.g., United States v. Ready, 82 F.3d 551 (2d Cir.1996)), those circumstances are not present here. Accordingly, because the district court’s remarks at sentencing could not have affected Mr. Black’s decision to enter into the plea agreement and waive his right to appeal, and because the district court lacked the authority to modify the plea agreement in these circumstances, we conclude that the waiver-of-appeal provision should be enforced. Accordingly, Mr. Black has waived his right to appeal his sentence on the grounds he asserts in his appellate brief. III. CONCLUSION For the reasons set forth above, we conclude that the district court did not abuse its discretion in denying Mr. Black’s motion to withdraw his guilty plea. Moreover, in light of the provisions of the plea agreement, Mr. Black has waived his right to appeal his sentence. Accordingly, we AFFIRM the district court’s denial of Mr. Black’s motion to withdraw his guilty plea. We DISMISS Mr. Black’s appeal insofar as it concerns the imposition of his sentence. . After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . In light of our conclusion" }, { "docid": "22270227", "title": "", "text": "to appeal, and because the district court lacked the authority to modify the plea agreement in these circumstances, we conclude that the waiver-of-appeal provision should be enforced. Accordingly, Mr. Black has waived his right to appeal his sentence on the grounds he asserts in his appellate brief. III. CONCLUSION For the reasons set forth above, we conclude that the district court did not abuse its discretion in denying Mr. Black’s motion to withdraw his guilty plea. Moreover, in light of the provisions of the plea agreement, Mr. Black has waived his right to appeal his sentence. Accordingly, we AFFIRM the district court’s denial of Mr. Black’s motion to withdraw his guilty plea. We DISMISS Mr. Black’s appeal insofar as it concerns the imposition of his sentence. . After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . In light of our conclusion that Mr. Black has waived the right to appeal his sentence, we do not here address the § 2K2.1(b)(5) enhancement or the district court’s consideration of the Colorado misdemeanor offense. . Unlike some plea agreements, the one between the government and Mr. Black does not state that a particular sentence or range of sentences would constitute an appropriate disposition of the case. Compare Rec. vol. I, doc. 125, at 7 (plea agreement containing no statement as to an appropriate sentence or range of sentences) with United States v. Veri, 108 F.3d 1311, 1313 (10th Cir.1997) (upholding plea agreement providing that the government and the defendant agreed as to the appropriate offense level and therefore to \"a sentencing range of twenty-one to twenty seven months’ imprisonment”). In United States v. Rosa, 123 F.3d 94, 99-100 (2d Cir.1997), the Second Circuit has contrasted plea agreements that specify a sentencing range with those that do not. The former agreements allow the defendant \"in advance, to evaluate the predicted range and assess in an informed manner whether he is" }, { "docid": "23290931", "title": "", "text": "rule merely postponing the inevitable denial of relief on the merits.” Id. at 1157. Rather, it serves to “safeguard[ ] important interests with concrete and potentially disposi-tive consequences which can be guaranteed only by the direct-appeal process and the concomitant right to counsel.” Id. 2. Appeals by defendants who have waived their appellate rights “Given the importance of plea bargaining to the criminal justice system, we generally enforce plea agreements and their concomitant waivers of appellate rights.” Hahn, 359 F.3d at 1318. “Nevertheless ..., a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court.” Id. (quotation omitted). To meet the two “competing goals” of enforcing plea agreements and “subjeet[ing] sentencing decisions to review for miscarriages of justice,” we have settled upon the following analysis and procedure to deal with a defendant who has waived the right to appeal his sentencing decision. Id. Before considering such a defendant’s appellate arguments, we apply a three-prong enforcement test. The court of appeals determines: (1) whether the disputed appeal falls within the scope of defendant’s waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. Id. at 1325. “If the panel finds that the plea agreement is enforceable, it will summarily dismiss the appeal” without considering its underlying merits. Id. at 1328. A summary and efficient dismissal of a waived appeal “preserve[s] the benefit of the government’s bargain.” Id. 3. Application to Mr. Garrett’s § 2255 motion Here, Mr. Garrett signed a plea agreement waiving many of his appellate rights. The present record shows that he and his attorney consulted about the possibility of an appeal of his sentence. The two parties, however, recount different versions of their discussion. Mr. Garrett asserts that he requested his attorney to file a notice of appeal; his attorney claims that Mr. Garrett did not explicitly ask for an appeal. The district court decided that a resolution of this factual dispute was unnecessary because “[m]ost courts ..." }, { "docid": "22604662", "title": "", "text": "McCONNELL, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument. Ivan Calderon pleaded guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine. In his plea agreement, Mr. Calderon waived his right to appeal his sentence. He was sentenced to 151 months in prison. Mr. Calderon timely appealed, and his counsel, Robert Breeze, filed an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Calderon then filed a response brief to the Anders brief. The government declined to submit a brief. Although we decline to enforce the appeal waiver due to the government’s failure to seek enforcement of the plea agreement, we find that Mr. Calderon’s appeal is nonetheless frivolous. Therefore, we DISMISS the appeal and GRANT Attorney Breeze’s motion to withdraw. BACKGROUND On November 2, 2004, Mr. Calderon pleaded guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and punishable by 21 U.S.C. § 841(b)(1)(A). Under the terms and conditions of the plea agreement, the government agreed to recommend a two level reduction if defendant demonstrated an acceptance of responsibility. The government also agreed to recommend a sentence at the low end of the applicable Sentencing Guidelines range and not to seek a sentencing enhancement. As part of the plea agreement, Mr. Calderon waived his right to appeal his sentence. Under the Federal Sentencing Guidelines applicable at the time, the base level for Mr. Calderon’s offense was 36. U.S.S.G. § 2Dl.l(c)(2). Mr. Calderon was given a reduction of three levels because of his recognition of criminal conduct and assistance of authorities, giving him a total offense level of 33. No enhancements were made. According to the Presentence Report, the applicable sentencing range under the Guidelines was" }, { "docid": "23323704", "title": "", "text": "arbitrary enforcement. a. Richardson’s appeal waiver Richardson cannot assert these three new arguments for the first time on appeal because, as part of his plea agreement, he waived his right to do so: “Defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, conviction and sentence, with the limited exception [of] the right to appeal ... only those issues raised and subsequently denied by the Court with regard to the defendant’s motion to suppress.” (R. (Richardson) v. 1, doc. 112, plea agreement at 7, para. 11 (emphasis added).) In analyzing whether a defendant has in fact waived his opportunity to assert, on appeal, a new argument in support of his suppression motion, this court applies the three-pronged enforcement analysis announced in United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam). See United States v. Anderson, 374 F.3d 955, 957 (10th Cir.2004). This analysis calls for the court of appeals, in reviewing appeals brought after a defendant has entered into an appeal waiver, to determine: (1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. Id. (quoting Hahn, 359 F.3d at 1325); see also United States v. Shockey, 538 F.3d 1355, 1357 & n. 2 (10th Cir.2008). i. Whether Richardson’s new arguments fall within his appeal waiver In his plea agreement, Richardson waived his right to appeal with the exception of “only those issues raised and subsequently denied by the Court with regard to the defendant’s motion to suppress.” (R. (Richardson) v. 1, doc. 112, plea agreement at 7, para. 11 (emphasis added).) That language clearly precludes Richardson from raising on appeal any new arguments in support of his suppression motion. See Anderson, 374 F.3d at 957-58 (holding appeal waiver in conditional guilty plea agreement precluded defendant from asserting new argument on appeal in support of suppression motion); see also United States v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th" }, { "docid": "23126922", "title": "", "text": "pro se motion alleging four claims of ineffective assistance of counsel, and requesting the district court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The district court dismissed the first three claims because Mr. Viera could not show prejudice. The district court denied relief on the fourth claim — that his attorney failed to file an appeal as instructed — because Mr. Viera waived this collateral challenge. The court was sufficiently uncertain, however, about the waiver determination that it granted COA on the appeal issue. Mr. Viera now appeals the denial of the appeal issue. Mr. Viera also applies for COA on one of the other ineffective assistance claims: that his attorney was ineffective because he failed to file a motion to withdraw Mr. Viera’s plea agreement and guilty plea. He further seeks COA on multiple other issues raised for the first time in his reply brief to this court. II. DISCUSSION A. Failure to File an Appeal as Instructed In reviewing denial of a § 2255 motion for post-conviction relief where a COA has been granted, “we review the district court’s findings of fact for clear error and its conclusions of law de novo.” United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir.2011). The district court denied habeas relief on the appeal issue, but it granted COA on this issue because it was not sufficiently certain as to the effect of a waiver of collateral challenges on this ineffective assistance claim. When a defendant waives his right to bring a post-conviction collateral attack in his plea agreement and later brings a § 2255 petition, we determine “(1) whether the disputed [claim] falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” U.S. v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir.2009) (applying Hahn analysis to a collateral attack proceeding). 1. Within the Scope First, Mr. Viera’s §" } ]

[ { "docid": "22656392", "title": "", "text": "v. Florida, 309 U. S. 227, 235-238. This Court’s decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect. “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Culombe v. Connecticut, supra, at 602. In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, e. g., Haley v. Ohio, 332 U. S. 596; his lack of education, e. g., Payne v. Arkansas, 356 U. S. 560; or his low intelligence, e. g., Fikes v. Alabama, 352 U. S. 191; the lack of any advice to the accused of his constitutional rights, e. g., Davis v. North Carolina, 384 U. S. 737; the length of detention, e. g., Chambers v. Florida, supra; the repeated and prolonged nature of the questioning, e. g., Ashcraft v. Tennessee, 322 U. S. 143; and the use of physical punishment such as the deprivation of food or sleep, e. g., Reck v. Pate, 367 U. S. 433. In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. Culombe v. Connecticut, supra, at 603. The significant fact about all of these decisions is that none of them turned on the presence or" } ]

[ { "docid": "21602197", "title": "", "text": "such federal consequences. The situation can be viewed in several ways. The first approach, and that argued by Long, is to view this as a question of whether Long voluntarily confessed. \"[T]he Court’s confession cases hold that the ultimate issue of ‘voluntariness’ is a legal question requiring independent federal determination.” Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985); United States v. Hawkins, 823 F.2d 1020, 1022-23 & n. 1 (7th Cir.1987). Therefore we conduct a de novo review of voluntariness following the legal standard set out in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Under Schneckloth we consider the totality of the circumstances: “Is the confession a product of an essentially free and unconstrained voice by his maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep. In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. 412 U.S. at 225-26, 93 S.Ct. at 2046-47 (citations omitted) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)). Following only the criteria set out in Schneckloth, the conclusion that Long’s statement was voluntary is inescapable. The questioning was conducted in a cooperative manner; Miranda" }, { "docid": "17027370", "title": "", "text": "the inherent weakness of his initial arguments in this case, appellant adopts an alternative approach to the legal insufficiency question. He notes that his conviction, if sustainable at all, was largely dependent on his pretrial statements. He alternatively contends that these pretrial statements to law enforcement agents were inadmissible because they were involuntary and lacked sufficient corroboration. See Mil. R. Evid. 304(a) and (g), Manual, supra. Accordingly, on this basis he persists in his claim that his conviction for indecent acts was based on legally insufficient evidence. The voluntariness of a confession depends on “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” United States v. Martinez, 38 MJ 82, 86 (CMA 1993), citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); accord Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 1251, 113 L.Ed.2d 302 (1991). The Government must prove voluntariness by a preponderance of the evidence. Martinez, supra at 87. Voluntariness of a confession is ultimately a legal question, see Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985), and this Court owes no deference to the appellate court below or the military judge in deciding this question. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 2416, 57 L.Ed.2d 290 (1978); Martinez, supra at 86. The military judge’s special findings of fact, unless clearly erroneous, are the basis upon which we rely to determine the voluntariness of an accused’s confession. See Martinez, supra at 86 (“[M]ilitary judge’s detailed findings ... surely do offer support to a legal conclusion of involuntariness.”); id. at 87 (Sullivan, C.J., concurring)(“[M]ilitary judge’s factual conclusion ... is deserving of great weight in the voluntariness analysis.”). The military judge here found as fact that appellant was read his rights; he waived them on an Air Force Form 1168; he was not threatened by law enforcement officials; he was cooperative during the interview; he swore to an oath that the statement was voluntary and truthful; he made several" }, { "docid": "18645932", "title": "", "text": "mentioned. Protracted interrogation might operate like a truth serum in breaking down the suspect’s will to resist a course of action (confessing) to which he may already be prompted by shame or guilt. See Spano v. New York, supra, 360 U.S. at 322-23, 79 S.Ct. at 1207. And threats not frightening enough to induce an innocent person to confess might be sufficiently intimidating to induce a guilty person, who may have been led to the brink of confession by promptings of guilt or shame, to confess when he would not have done so if left alone. Such a case was Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). A government informant, a fellow prisoner of Fulminante, told him that he knew that Fulminante was “starting to get some tough treatment and whatnot” from other prisoners because of a rumor that he was suspected of having killed a child, and offered to protect him provided he came clean to the informant — which Fulminante promptly did. Id. at 283, 111 S.Ct. at 1250. And, as we are about to see, to be effective in inducing an “involuntary” confession a threat might not have to be directed against the suspect himself; it might be a threat to his child, spouse, or other loved one. In eases of all these types the confession is suppressed not because it lacks evi-dentiary quality but because to make a suspect the unwitting agent of his conviction is thought to be inconsistent with the premises of an adversary system of criminal justice. Culombe v. Connecticut, supra, 367 U.S. at 582, 81 S.Ct. at 1867; cf. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). All this is provided, however, that the threats, the promises, the misinformation, the confusion, etc. emanate from the police. A defendant who thinks he hears the voice of God directing him to confess may be irrational, but he is not coerced by anyone, let alone by any public officer; and the only coercion that is held to justify the suppression of a" }, { "docid": "23178841", "title": "", "text": "of free and rational choice: The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. at 1879. See also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In deciding whether an accused’s will has been overborne, courts have looked to the totality of the circumstances surrounding the confession, both the characteristics of the accused and the details of the interrogation, and determined their psychological impact on an accused’s ability to resist pressures to confess. Schneckloth v. Bustamonte, 412 U.S. at 226, 93 S.Ct. 2041; Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. 1860. The voluntariness of a confession is a mixed question of law and fact. Justice Frankfurter once described the notion of voluntariness as an “amphibian” because “[i]t purports at once to describe an internal psychic state and to characterize the state for legal purposes.” Culombe v. Connecticut, 367 U.S. at 605, 81 S.Ct. at 1880. The unique mixture of law and fact involved in a voluntariness determination is reflected in our standard of review. The Government contends that we may only overturn the District Court’s conclusion that the confession was voluntary if we find clear error. That statement is not entirely correct. Justice Frankfurter separated a court’s inquiry on voluntariness into three phases: The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, “phenomenological” occurrences and events surrounding the confession. Second, because the concept of “voluntariness” is one which concerns a mental state, there is the imaginative recreation, largely" }, { "docid": "5159522", "title": "", "text": "Rules of Evidence define an “involuntary” statement, inter alia, as one which is taken in violation of the due process clause or through the use of coercion, unlawful influence, or unlawful inducement. Nevertheless, we must turn to the precedents to determine what these phrases mean in actual application. The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. 568, 602, 815 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). The totality of the circumstances, including the characteristics of the accused and the nature of the interrogation, are considered in applying this test. Schneckloth v. Bustamonte, 412 U.S. 218, 225-226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Two noteworthy cases have applied these principles to the effects of intoxicants on the voluntariness of statements. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), dealt with drugs given by a police physician to ease the symptoms of withdrawal from narcotics. If an individual’s “will was overborne” or if his confession was not “the product of a rational intellect and a free will,” his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. Id. at 307, 83 S.Ct. at 754 (footnotes, citations omitted). Gladden v. Unsworth, 396 F.2d 373 (9th Cir.1968), applied Townsend v. Sain to a situation which, like the case at bar, involved voluntary alcohol intoxication. If by reason of mental illness, use of drugs, or extreme intoxication, the confession in fact could not be said to be the product of a rational intellect and a free will, to the test" }, { "docid": "23705745", "title": "", "text": "condemned.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). An admission is deemed to be coerced when the conduct of law enforcement officials is such as to overbear the accused’s will to resist. Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1 (1976) (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961)). An involuntary confession may result from psychological, no less than physical, coercion by law enforcement officials. Arizona v. Fulminante, 499 U.S. 279, 285-89, 111 S.Ct. 1246, 1252-53, 113 L.Ed.2d 302 (1991); Miranda v. Arizona, 384 U.S. 436, 448, 86 S.Ct. 1602, 1614, 16 L.Ed.2d 694 (1966). However, not all psychological tactics are unconstitutional. In determining whether a confession has been elicited by means that are unconstitutional, this court looks at the totality of the circumstances concerning “whether a defendant’s will was overborne in a particular case.” Factors to consider in assessing the totality of the circumstances include the age, education, and intelligence of the accused; whether the accused has been informed of his constitutional rights; the length of the questioning; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food or sleep. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). In Frazier v. Cupp, the Court held that a confession was voluntary, despite a police officer’s misrepresentation to the petitioner that an associate had confessed to the crime. 394 U.S. 731, 737-39, 89 S.Ct. 1420, 1423-25, 22 L.Ed.2d 684 (1969). Apparently, the petitioner had received partial warnings of his Miranda rights prior to making any incriminating statements. Furthermore, he was an adult of normal intelligence. In the Court’s view, “The fact that the police misrepresented the [eodefendant’s] statements ... is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.” Id. at 739, 89 S.Ct. at 1425. By contrast, in Spano v. New York, 360 U.S. 315, 322, 79 S.Ct. 1202, 1206-07, 79 L.Ed.2d 1265 (1959), a pre-Miranda" }, { "docid": "6712461", "title": "", "text": "the evidence, that a confession is voluntary. See Missouri v. Seibert, 542 U.S. 600, 608 n. 1, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The question this court must resolve is whether the confession [is] the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir.1993) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)); see also Schneckloth v. Bustamante, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Further, “[w]hen the government obtains incriminating statements through acts, threats, or promises which cause the defendant’s will to be overborne, it violates the defendant’s Fifth Amendment rights and the statements are inadmissible at trial as evidence of guilt.” Toles, 297 F.3d at 965. This court determines the voluntariness of a confession based upon the totality of the circumstances, considering “both the characteristics of the accused and the details of the interrogation.” Id. at 965-66. “No single factor is determinative.” Lugo, 170 F.3d at 1004. The Government first argues that the district court erred by basing its decision to suppress Lopez’s confessions on a single factor — that Agent Hopper induced Lopez’s confessions by promising him leniency. The district court did note that “[i]f ‘a policeman ... has made a promise of ... leniency,’ the resulting statement is ‘the product of inducement, and thus’ involuntary.” Reading the district court’s decision in its entirety, however, it is clear that the district court properly considered and weighed all the factors relevant to the voluntariness of Lopez’s confessions. See Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). A. First confession. We now turn to the question of whether Lopez’s first confession made during the second interview, on the evening of May 18, was voluntary. The voluntariness determination reflects an accommodation," }, { "docid": "23178840", "title": "", "text": "that Appellant was given Miranda warnings so the admissibility of the confession turns' on whether it was voluntary. Davis v. North Carolina, 384 U.S. at 740, 86 S.Ct. 1761. For standards of voluntariness we refer to a pre-Miranda line of cases beginning with Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), which held that the admission of an involuntary confession in a criminal prosecution violates due process. Appellate courts have a duty to examine the entire record and make an independent determination on the voluntariness of a confession. Davis v. North Carolina, 384 U.S. at 741-42, 86 S.Ct. 1761; United States v. Dye, 508 F.2d 1226, 1232 (6th Cir. 1974). In determining whether a confession was voluntary, courts focus on the state of mind of the accused at the time the confession was made. See, e. g., Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). The central inquiry of a court considering the voluntariness of a confession is whether the confession was the product of free and rational choice: The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. at 1879. See also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In deciding whether an accused’s will has been overborne, courts have looked to the totality of the circumstances surrounding the confession, both the characteristics of the accused and the details of the interrogation, and determined their psychological impact on an accused’s ability to resist pressures to confess. Schneckloth v. Bustamonte, 412 U.S. at 226, 93 S.Ct. 2041; Culombe v. Connecticut, 367 U.S. at 602," }, { "docid": "15073999", "title": "", "text": "cause and without presentation to a judicial officer for four months, his confession was coerced and therefore obtained in violation of the Due Process Clause of the Fourteenth Amendment. On review of a habeas petition, we make an independent assessment of the voluntariness of the confession. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). The subsidiary and historical facts found by the state trial court, however, are presumed correct under 18 U.S.C. § 2254(d). Id. at 112, 106 S.Ct. at 450. When a state court fails to make explicit findings, a state court’s denial of the claim “resolves all conflicts in testimony bearing on that claim against the criminal defendant.” Culombe v. Connecticut, 367 U.S. 568, 604-05, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961). To determine whether a confession is voluntary, the court must assess “the totality of all the surrounding circumstances— both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The inquiry focuses on whether there has been any “police overreaching.” Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986). Factors to be considered include the “[accused’s] lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047 (citations omitted). The trial court held an evidentiary hearing on Waldrop’s oral motion to suppress the October 18, 1982, confession. In denying the motion to suppress, the court implicitly found that (1) Waldrop had been advised of and understood his Miranda rights before making his statement; (2) Waldrop asserted that he knew the rights better than the officers did; (3) he wished to talk to the authorities; (4) he asserted that he did not want or need a lawyer; (5) he never requested counsel; (6) no" }, { "docid": "4019883", "title": "", "text": "liberty,” id. at 455, 86 S.Ct. at 1618, because the circumstances are inherently coercive. Police have no right to question a suspect who is in their hands; it is the suspect that has a constitutional right to remain silent. Id. at 460, 86 S.Ct. at 1620. Thus, it follows that only those statements a suspect makes “in the unfettered exercise of his own will” may be used against him, Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), and a confession is voluntary only when it is “truly ... the product of his free choice.” Miranda, 384 U.S. at 458, 86 S.Ct. at 1619. A confession is not self-determined when brought about by circumstances that caused the petitioner’s will to be overborne at the time he confessed. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). A. What Rule Applies The initial question that we must resolve is what standard guides us in resolving the ultimate question of voluntariness: “ ‘Is the confession the product of an essentially free and unconstrained choice by its maker?’ ” Schneckloth v. Busta- monte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)). Petitioner argues that Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), requires that a confession induced by “ ‘any direct or implied promises, however slight,’ ” must be suppressed. Id. at 542-43, 18 S.Ct. at 186-87 (quoting 3 Russell on Crimes 478 (6th ed. 1896)), and that this Circuit has adopted the rule in Bram, pointing to United States v. Fisher, 700 F.2d 780, 783 (2d Cir.1983). Petitioner concedes that we employ a “totality of the circumstances” rule, but argues that Bram’s continued viability independently mandates suppression of Green’s confession because of Detective Hazel’s repeated promises to help him. Petitioner misreads the Supreme Court’s and our decisions. There are not two rules — standing as twin lighthouses — to guide a reviewing court" }, { "docid": "5746351", "title": "", "text": "officials was such as to overbear petitioner’s will to resist and to bring about a confession that was not the product of a rational intellect and a free will. United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir.), cert, denied, 419 U.S. 1032, 95 S.Ct. 514, 42 L.Ed.2d 307 (1974); United States v. Ferrara, 377 F.2d 16,17 (2d Cir.), cert, denied, 389 U.S. 908, 88 S.Ct. 225, 19 L.Ed.2d 225 (1967). See also Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971); Davis v. North Carolina, supra; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Justice Frankfurter has articulated the test of voluntariness which guides my review of petitioner’s application in this court: Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination- critically impaired, the use of his confession offends due process. . . . The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). In order to resolve this issue of voluntariness, I must consider and weigh all of the circumstances which surrounded petitioner’s confession given to law enforcement authorities in 1959. Since Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have not been given retroactive effect [Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d '882 (1966)], the admissibility of petitioner’s statement must be governed by the then-existing contemporary case law elaborating the constitutional due process standard of voluntariness. Analysis of a variety of factors is required to resolve this issue. (1) CIRCUMSTANCES OF THE" }, { "docid": "12001164", "title": "", "text": "a confession was the product of an invalid waiver of the privilege against self-incrimination, we believe that the issues are distinct. See Edwards v. Arizona, 451 U.S. at 484, 101 S.Ct. at 1884 (“the voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries”). An examination of the cases cited by Brown in his state court briefs to support his voluntariness argument highlights this distinction. All but one of the United States Supreme Court decisions cited by Brown were decided before 1966, when the Court held in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that the fifth amendment privilege against self-incrimination governs the admissibility of inculpatory statements. They therefore could not possibly support the argument petitioner raises here. In each of these cases, the Court considered whether, under the totality of the circumstances, a “confession [is] the product of an essentially free and unconstrained choice by its maker.. . . If it is not, if his will has been overborne, and his capacity for self determination critically impaired, the use of his confession offends due process.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963) (“the question in each case is whether the defendant’s will was overborne at the time he confessed”); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Even the sole post-Miranda case cited in Brown’s state court brief involved a challenge to the state court’s ruling that a statement had been made involuntarily in violation of the due process clause. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) . Similarly, the state court decisions relied on by the petitioner in his brief to the Pennsylvania Supreme Court primarily involve the issue of voluntariness. See Commonwealth v. Ritter, 462 Pa. 202, 340 A.2d 433 (1975) (“Appellant argues that his confession should have been suppressed as not" }, { "docid": "6907841", "title": "", "text": "Appeals concluded that the trial court propérly admitted the statements. See Baldwin, 372 So.2d at 28-30. Baldwin asserts that the independent determinations of the Alabama appellate court and the district court may not remedy the trial court’s failure to make a preponderance finding prior to admitting the statement. We agree with the district court that Baldwin unduly focuses on semantics, and reject Baldwin’s implied assertion that trial courts must use exact words when determining the admissibility of custodial statements. “On review of a habeas [corpus] petition, we make an independent assessment of the voluntariness of the [petitioner’s] confession.” Waldrop v. Jones, 77 F.3d 1308, 1316 (11th Cir.) (citing Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)), cert. denied, — U.S. -, 117 S.Ct. 247, 136 L.Ed.2d 175 (1996); see also McCoy, 953 F.2d at 1263. In so doing, we presume the state court’s subsidiary and historical findings of fact to be correct pursuant to § 2254(d). See Waldrop, 77 F.3d at 1316; McCoy, 953 F.2d at 1263 (stating that subsidiary findings, such as the circumstances of the defendant’s interrogation and the actions of law enforcement officers, “are entitled to a presumption of correctness if fairly supported by the reeord[ ]”); Harris v. Dugger, 874 F.2d 756, 762 (11th Cir.) (“As the Court stated in Miller, ‘... subsidiary factual questions, such as ... whether in fact the police engaged in the intimidation tactics alleged by the defendant ... are entitled to the § 2254(d) presumption.’”) (quoting Miller, 474 U.S. at 112, 106 S.Ct. 445), cert. denied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d 568 (1989). In addition, “[w]hen a state court fails to make explicit findings, a state court’s denial of the claim ‘resolves all conflicts in testimony bearing on that claim against the criminal defendant.’” Waldrop, 77 F.3d at 1316 (quoting Culombe v. Connecticut, 367 U.S. 568, 604-05, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)). This court must assess Baldwin’s claim under the totality of the circumstances surrounding the statements. Waldrop, 77 F.3d at 1316; Harris, 874 F.2d at 761 (“A confession is" }, { "docid": "18958445", "title": "", "text": "to counsel, the voluntariness of the second confession is determined by the totality of the circumstances. The earlier, unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent confession. 32 MJ at 79. An assessment of “the totality of all the surrounding circumstances” includes “both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Supreme Court has described the test for actual coercion as follows: Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.). In Elstad, the Supreme Court stated: “A subsequent administration of Miranda [384 U.S. 436, 444, 86 S.Ct. 1602 (1966) ] warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” 470 U.S. at 314, 105 S.Ct. 1285, quoted in Murphy, 39 MJ at 488, and United States v. Young, 49 MJ 265, 267 (1998). Thus, “[t]he necessary inquiry is whether the confession is the product of an essentially free and unconstrained choice by its maker.” United States v. Bubonics, 45 MJ 93, 95 (1996). If there has been an earlier unwarned statement, “the absence of a ‘cleansing’ warning before the subsequent statement” is one of the “circumstances to be considered in determining voluntariness.” United States v. Lichtenhan, 40 MJ 466, 470 (CMA 1994). Interrogation of a suspect in custody must cease if the suspect requests counsel. Mil.R.Evid. 305(f)(2). An ambiguous comment or request, however, does not require that interrogation cease. A request for counsel must be articulated “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to" }, { "docid": "4934834", "title": "", "text": "the conversation on several occasions to wait on customers and answer telephone calls while the agents were in the store. In sum, the custodial environment required to invoke Miranda was wholly absent. And if more particularized precedent is needed (as it is not), this ease falls squarely within Sicilia, 475 F.2d at 310-11, holding Miranda warnings unnecessary when FBI agents conducted a non-custodial interview of an interstate theft suspect at his place of business. 2. Voluntariness of Goldstein’s Confession Resolution of the Miranda issue against Goldstein does not, however, dispose of his Fifth and Sixth Amendment challenges. This Court must still determine whether Goldstein’s confession was voluntary. And the lack of Miranda warnings — though not of itself fatal for the reason already discussed — is a “significant factor” in that analysis. Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966). Culombe v. Connecticut, 367 U.S. 568, 602-06, 81 S.Ct. 1860. 1879-81. 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.), while recognizing the difficulty of coining an all-purpose definition of voluntariness, framed the voluntariness inquiry in terms that continue to state the standard {id. at 602, 81 S.Ct. at 1879): Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Courts have consistently required a careful case-by-case analysis, based on “the totality of the circumstances” surrounding an individual’s statement to the authorities. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Holleman v. Duckworth, 700 F.2d 391, 396 (7th Cir.1983). a. Goldstein’s State of Mind Goldstein was not at all inclined to make incriminating statements to the agents during the early stages of the interview. He repeatedly denied any knowledge of or involvement with the stolen emerald and gold salts. Moreover, his reticence was not just prompted by the belief he could" }, { "docid": "419929", "title": "", "text": "guided by the Supreme Court’s observation in Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), that “the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne.” Id. at 116, 106 S.Ct. at 452-53; see also United States v. Wolf, 813 F.2d 970, 976 n. 16 (9th Cir.1987). Accordingly, we conclude that the facts and circumstances presented by Cooper state a cause of action under § 1983 for a violation of his right not to be subjected during custodial interrogation to police conduct that denies him the exercise of his “free and unconstrained will,” a right to which he was entitled by the Due Process Clause of the Constitution. “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker?” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). Following the traditional “test of volun-tariness,” we have no doubt that Cooper’s statements to the Task Force “were the product of a will overborne.” Davis v. North Carolina, 384 U.S. 737, 742, 86 S.Ct. 1761, 1765, 16 L.Ed.2d 895 (1966). Cooper was advised improperly of his Miranda rights. Police officers may not make a mockery of our Constitutional law by turning an advisement of rights into a persiflage. The fact “that a defendant was not [properly] advised of his right to remain silent or of his right respecting counsel ... is a significant factor in considering the voluntariness of statements later made.” Id. at 740, 86 S.Ct. at 1764; see Robichaud v. Ronan, 351 F.2d 533, 534 (9th Cir.1965). Cooper’s substantive right to silence was ignored, and as previously discussed in Part VI, supra, he admittedly was hammered, forced, pressured, emotionally worn" }, { "docid": "22871395", "title": "", "text": "have influenced Chalan to attend the interview, we are not convinced that this influence sufficiently restrained Chalan’s freedom so as to necessitate the safeguards required by Miranda. We agree with the trial court that Chalan’s desire not to show disrespect toward the Governor does not render the. questioning custodial. Even though defendant’s Miranda rights were not violated, his statements would nevertheless be inadmissible if they were made involuntarily. For purposes of testing the admissibility of a suspect’s statements, voluntariness depends upon an assessment of “the totality of all the surrounding circumstances,” including “both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); see also Culombe v. Connecticut, 367 U.S. 568, 606, 81 S.Ct. 1860, 1881, 6 L.Ed.2d 1037 (1961); United States v. Falcon, 766 F.2d 1469, 1476 (10th Cir.1985). The ultimate inquiry in determining voluntariness is as follows: “Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Culombe, 367 U.S. at 602, 81 S.Ct. at 1879; see also Schneckloth, 412 U.S. at 225-26, 93 S.Ct. at 2046-47; United States v. Fountain, 776 F.2d 878, 885 (10th Cir.1985); United States v. Brown, 540 F.2d 1048, 1053 (10th Cir.1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977). In assessing the circumstances that surround a suspect’s responses to interrogation, the Supreme Court has looked at a number of factors, including the age, education, and intelligence of the suspect, the length of his detention and the questioning, and the use of physical punishment. See Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. In no case, however, is any single factor determinative. When a defendant claims that his statements to investigators were involuntary and thus improperly admitted at trial, “it is the duty of an appellate court" }, { "docid": "16631805", "title": "", "text": "a search conducted without the execution of a warrant is “per se unreasonable” and “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Further, one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. See Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256,1261-62, 90 L.Ed. 1453 (1946). When the government seeks, however, to “rely upon consent to justify the lawfulness of a search, [the government] has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788,1792, 20 L.Ed.2d 797 (1968). The Supreme Court defined the test for whether a person’s consent was voluntary by referencing a prior holding defining a “voluntary” confession. Quoting an earlier case, the Supreme Court stated: The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Id. (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)). Similarly, the Supreme Court has used the totality of the circumstances test to determine whether a consent was voluntary. Cf. id. at 226, 93 S.Ct. at 2047. “[I]t is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.” Id. at 233, 93 S.Ct. at 2050. Some of the factors to consider in using the totality of the circumstances include: the age, education, intelligence of the person consenting; the presence of physical punishment or credible threats of violence; overreaching by the" }, { "docid": "22860223", "title": "", "text": "voluntary is a question of law reviewable by this court de novo. Griffin v. Strong, 983 F.2d 1540, 1541 (10th Cir.1993). The voluntariness of a confession is determined by considering the totality of the circumstances in which it was made. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). To determine voluntariness, we must ask: Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). A number of factors must be considered in assessing whether a confession is voluntary. These factors include the age, intelligence, and education of the suspect; the length of the detention and questioning; the use or threat of physical punishment; whether Miranda safeguards were administered; the accused’s physical and mental characteristics; and the location of the interrogation. United States v. Chalan, 812 F.2d 1302, 1307-1308 (10th Cir.1987). The court must also consider the conduct of the police officers. See Mincey v. Arizona, 437 U.S. 385, 398-402, 98 S.Ct. 2408, 2416-18, 57 L.Ed.2d 290 (1978). Construing the facts in a way most favorable to the government, we hold as a matter of law that Mr. Perdue’s statements were made involuntarily. No single factor dictates this result; rather, we are led to this conclusion because of the overwhelmingly coercive atmosphere created by many different elements. Of particular importance are the isolated location in which the interrogation took place, the rapidity with which the events unfolded, the officers’ use of guns, the placement of the suspect face down in the dirt prior to interrogation, the fact that Officer Carreno stood above' Mr. Perdue with his gun drawn during the questioning, and the failure to provide Miranda safeguards. Also contributing to the coercive, “police dominated” environment was the large and intimidating presence of police" }, { "docid": "15073998", "title": "", "text": "The existence of such cases is strong evidence that a “reasonable basis” for Waldrop’s attack on the reasonable-doubt instruction existed before Cage. See Reed v. Ross, 468 U.S. 1, 13-20, 104 S.Ct. 2901, 2909-12, 82 L.Ed.2d 1 (1984) (stating that novelty can excuse default if no “reasonable basis” for claim previously existed; discussing what constitutes a “reasonable basis”); James v. Cain, 50 F.3d 1327, 1331 (5th Cir.) (stating that novelty is less likely an excuse where other defendants have contemporaneously perceived and litigated similar issues) (citing Engle, 456 U.S. at 134, 102 S.Ct. at 1575), cert. denied, - U.S.-, 116 S.Ct. 310, 133 L.Ed.2d 213 (1995). Waldrop, therefore, has not demonstrated cause for his default. C. Involuntary confession While held in the Talladega County jail, Waldrop confessed on September 15, 1982, and again on October 18, 1982, to participating in the robbery and murder of Donahoo. Waldrop challenges his conviction based on the admission at trial of the October 18 confession. He argues that because he was detained in the Talladega County jail without probable cause and without presentation to a judicial officer for four months, his confession was coerced and therefore obtained in violation of the Due Process Clause of the Fourteenth Amendment. On review of a habeas petition, we make an independent assessment of the voluntariness of the confession. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). The subsidiary and historical facts found by the state trial court, however, are presumed correct under 18 U.S.C. § 2254(d). Id. at 112, 106 S.Ct. at 450. When a state court fails to make explicit findings, a state court’s denial of the claim “resolves all conflicts in testimony bearing on that claim against the criminal defendant.” Culombe v. Connecticut, 367 U.S. 568, 604-05, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961). To determine whether a confession is voluntary, the court must assess “the totality of all the surrounding circumstances— both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d" } ]

[ { "docid": "4100436", "title": "", "text": "[Brown] admitted, you know, his participation early on, and gets from me bonus points. If there were no guidelines in this particular case, I would give him a much more I think representative adjustment for acceptance of responsibility. That Brown’s confession was not detailed to the government's satisfaction and that it occurred after his arrest will not prevent us from deciding whether the district court erred in concluding that it lacked discretion to depart on, a finding that Brown’s acceptance of responsibility was extraordinary. Cf. United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir.1991) (declining to reach question of district court’s discretion to depart where nothing in record supports departure on particular ground at issue). The guidelines authorize the sentencing court to make a two point reduction in a defendant’s offense level “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). The application notes following section 3E1.1 list seven non-exclusive factors that a court may consider in determining whether a defendant should receive the reduction for acceptance of responsibility. The mere existence of section 3El.l(a) does not preclude the sentencing court from making an additional departure in the case where the defendant manifests an extraordinary acceptance of responsibility. “[T]he court may depart from the guidelines, even though the reason for departure is taken into consideration in the guidelines ... if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.” U.S.S.G. § 5K2.0 (Policy Statement). We conclude, therefore, that the district court could have departed downward from the recommended sentence range if it had de termined that the two point reduction provided in section 3E1.1 did not adequately reflect the degree to which Brown accepted responsibility for his conduct. Accord United States v. Rogers, 972 F.2d 489, 493 (2d Cir.1992); United States v. Lieberman, 971 F.2d 989, 996 (3d Cir.1992); United States v. Carey, 895 F.2d 318, 323-24 (7th Cir.1990); United States v. Crumb, 902 F.2d 1337, 1339-40 (8th Cir.1990). CONCLUSION Because we hold that the district court erred in" } ]

[ { "docid": "16715824", "title": "", "text": "495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990); see also United States v. Bolden, 889 F.2d 1336, 1341 (4th Cir.1989). The question here is whether restitution is a proper ground to be considered to justify departing downward from the Guidelines range. We review this ground for departure de novo. Willey, 985 F.2d at 1349. In United States v. Carey, 895 F.2d 318, 323 (7th Cir.1990), we held that a sentencing court could not base a downward departure on the fact that a defendant made restitution to his victim prior to the adjudication of his guilt. We based our conclusion on the fact that restitution was explicitly considered by the Guidelines as a factor in determining whether a defendant was entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 comment, (n. 1(b)). Id. The Commentary to § 3E1.1 “demonstrates that the Commission adequately considered restitution as a mitigating circumstance when formulating the Guidelines,” id. at 323, and therefore it is not an appropriate ground for departure. See 18 U.S.C. § 3553(b) (departures are permissible only when “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by ... the guidelines”). In the instant case, unlike Carey, the district court did not reward Seacott for making restitution to Lampeo prior to his adjudication of guilt. Instead, the court reduced Seacott’s sentence in order to give him “the opportunity to make full restitution” to Lampeo and minimize “the cost to the taxpayers.” But if, under Carey, a district court cannot depart downward as a reward for restitution made to the victim, it would make little sense to hold that district courts may depart downward based on the promise of future restitution. Moreover, as the Sixth Circuit has reasoned, “it seems that the Sentencing Commission considered including the ability to make restitution as a possible mitigating circumstance, yet rejected it as a basis for departure from the guidelines” by explicitly stating that socio-economic status is not relevant in the determination of a sentence. See U.S.S.G. § 5H1.10, p.s. United" }, { "docid": "6856253", "title": "", "text": "the Gallegos were not arrested and fled to Mexico immediately after the drug deal turned sour. There is no evidence that, once found, they made any efforts to impede authorities. The plain language of Application Note 4(d) explains that the enhancement does not apply to defendant’s conduct in “avoiding or fleeing arrest.” Although the Gallegos nine month absence was more “obstructive” than the defendant’s short run from authorities in Garcia, Application Note 4(d) does not restrict its application to flights of short durations. Moreover, a defendant’s failure to surrender to,authorities is already considered under the guidelines in the acceptance of responsibility adjustment. See U.S.S.G. § 3E1.1, comment, (n. 1(d)) (“voluntary surrender to authorities promptly after commission of the offense” is one consideration in determining whether acceptance of responsibility adjustment applies). We therefore hold that the obstruction of justice adjustment cannot be applied under the facts of this case. As an alternative ground for its decision, the district court stated that defendants’ flight would justify a 2-level upward departure. “[T]he district court may not depart from the applicable Guideline range unless it identifies an aggravating circumstance of a kind or to a degree the Commission did not adequately take into account when formulating the Guidelines.” United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991); see also U.S.S.G. § 5K2.0. Here, in Application Note 4(d), the Sentencing Commission explicitly considered — and rejected — the aggravating circumstance (i.e., flight from arrest) identified by the district court. Thus, because flight from arrest is a factor adequately considered by the Sentencing Commission in formulating the Guidelines, it cannot be used as a basis for departure. Cf. United States v. Ward, 914 F.2d 1340, 1348 (9th Cir.1990) (“district court may not depart upward based upon the defendant’s obstruction of justice unless [the conduct] was significantly more egregious than the ordinary cases of obstruction listed in the application notes to § 3C1.1, of which the Commission has taken full account”). II. § 3B1.2 — Mitigating Role Pursuant to a stipulation, the government recommended a 4-level reduction in Carla Rosa’s offense level for her minimal participation" }, { "docid": "18871991", "title": "", "text": "that Smallwood’s assignment to criminal history category IV did not adequately reflect the seriousness of his past criminal conduct or the likelihood that he would commit other crimes. Thus, analogizing to the career criminal category, the district court sentenced Smallwood to 160 months of incarceration followed by three years of supervised release. Smallwood appeals. II.Standard of Review We review the district court’s decision to depart upward under the three-part test of United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc). First, we review de novo whether the district court had legal authority to depart. See id. at 746. Second, we review for clear error the factual findings supporting the existence of an aggravating circumstance. 18 U.S.C. § 3742(d); Lira-Barraza, 941 F.2d at 746-47. Third, we review for reasonableness the extent of the district court’s departure. Lira-Barraza, 941 F.2d at 747, 751. III.Discussion A district court has legal authority to depart only if it identifies an aggravating circumstance “that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (1988); Lira-Barraza, 941 F.2d at 746. In this case, the district court concluded that U.S.S.G. § 4Al.l(e)’s failure adequately to take into account the fact that Smallwood committed the instant offense only three months after being paroled for virtually the same offense and Smallwood’s criminal record were just such aggravating circumstances and departed upward. With respect to.Smallwood’s criminal record, the district court departed upward under U.S.S.G. § 4A1.3, which provides: If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range. “We have held that an upward departure based on the inadequacy of a defendant’s criminal history category is proper only in those limited circumstances where the defendant’s criminal record is ‘significantly more serious’ than that of other defendants in the same category.” United States v. Streit, 962 F.2d 894, 903 (9th Cir.), cert. denied, — U.S. -," }, { "docid": "22282530", "title": "", "text": "to the bank and were essential to the check-kiting scheme. The dollar loss here does not overstate the seriousness of the offense. The defendant individually orchestrated and carried out the fraud on the bank involving deposits on almost every business day over a fifteen-month period. See examples cited in Commentary to § 2F1.1 mo. As stated earlier, the Guidelines permit a departure from the applicable sentencing range where the court finds “an aggravating or mitigating circumstance of the kind or to a degree not adequately considered by the Commission in formulating the Guidelines.” 18 U.S.C. § 3553(b) (Supp.1989). Here, the court relied on restitution for a departure even though restitution was a circumstance adequately considered by the Commission in formulating the Guidelines. In § 3E1.1, the Guidelines permit a district court to make a two-level reduction to the level of the offense if a defendant demonstrates acceptance of responsibility. The Commentary to this section expressly states that such a reduction may be given when the defendant engages in the “voluntary payment of restitution prior to the adjudication of guilt.” Commentary to § 3E1.1 II1. The Commentary, therefore, demonstrates that the Commission adequately considered restitution as a mitigating circumstance when formulating the Guidelines. Accordingly, a departure based on restitution is unreasonable. In this case, the district court already considered the defendant’s restitution when it awarded a two-level reduction for his acceptance of responsibility. The Guidelines do permit, however, the district court some flexibility in departing from a sentencing range even when circumstances have been adequately considered by the Commission in formulating the Guidelines. The Commentary to § 5K2.0 states that: a court may depart from the guidelines even though the reason for the departure is listed elsewhere in the guidelines (e.g., as an adjustment or specific offense characteristic), if the court determines that, in light of unusual circumstances, the guideline factor attached to that factor is inadequate. Where the applicable guidelines, specific offense characteristics, and adjustments do take into consideration a factor listed in this part, departure from the guidelines is warranted only if the factor is present to a degree" }, { "docid": "23236347", "title": "", "text": "was convicted on multiple counts. Streit does not object to these adjustments. The district court determined that Streit had 12 criminal history points, which would place him in criminal history category V. Because Streit met the requirements of U.S.S.G. § 4B1.1, however, the court determined that Streit should be classified as a “career offender.” As a career offender, Streit’s criminal history category automatically became category VI and his offense level became 12 pursuant to U.S.S.G. § 4B1.1. The district court then departed upward from the 30-37 month sentencing range recommended at offense level 12 for a defendant in criminal history category VI. See U.S.S.G. Ch. 5, Pt. A, at 5.2 (Sentencing Table). The court based its departure on the need to take account of both the physical injury to agents English and Oldham caused by Streit’s assault and the fact that Streit’s criminal history category did not adequately reflect his past criminal conduct and potential for recidivism. The court arrived at a sentencing range of 63-78 months and imposed two consecutive 36-month sentences pursuant to U.S.S.G. § 5G1.2(d). B. Standard of Review We review departures from the Sentencing Guidelines under the three-part test of United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc). First, we determine whether the trial court had the legal authority to depart. A district court may depart upward from the applicable guideline range only if it identifies an aggravating circumstance “that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); Lira-Barraza, 941 F.2d at 746. Second, we review for clear error the factual findings in support of the aggravating circumstance identified by the district court as a basis for departure. Finally, we review the reasonableness of the extent of the district court’s departure “in light of the structure, standards and policies of the Act and Guidelines.” Lira-Barraza, 941 F.2d at 746-47, 751. The district court must explain the reasoning for both the direction and degree of its departure in sufficiently specific language to allow us to conduct a meaningful review. 18 U.S.C. § 3553(c)(2); Lira-Barraza," }, { "docid": "18615070", "title": "", "text": "of in-house detention. The district court denied the downward departure, stating that it did not believe that it had authority to depart downward for time spent under in-house detention under § 5K2.0. When the prosecutor requested that the district court specifically hold that even if it did have such authority, it would deny the request for a downward departure, the district court refused. Daggao was sentenced to 87 months imprisonment, followed by five years supervised release. The 87 month sentence was the low end of the applicable guideline range, based on a total offense level of 27, and Daggao’s category III criminal history. Daggao timely appealed the district court’s sentence, claiming that the court erred in finding that it lacked authority under U.S.S.G. § 5K2.0 to depart downward for time spent under in-house detention. We affirm. II. DISCUSSION We review de novo the district court’s decision that it lacked authority to grant a downward departure from the Sentencing Guidelines. United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc). Daggao claims that the district court erred in finding that it lacked authority to depart downward from the Sentencing Guidelines for time spent under in-house detention prior 'to sentencing. U.S.S.G. § 5K2.0 states: Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described.” If the district court identifies an aggravating or mitigating circumstance not adequately taken into account by the Commission, then “the court is legally authorized to depart so long as the circumstance is consistent with the sentencing factors prescribed by Congress in 18 U.S.C. § 3558(a), with the Guidelines, and, of course, with the Constitution.” Lira-Barraza, 941 F.2d at 746. To the extent that the Sentencing Commission has not considered the conditions or time under which a defendant i's released or detained before trial or" }, { "docid": "7432930", "title": "", "text": "from the guidelines would differentiate criminal defendants on the basis ' of their economic resources, which is clearly contrary to the intent of the sentencing guidelines. Moreover, voluntary payment of restitution is a mitigating circumstance that has been taken into consideration by the Sentencing Commission in formulating the guidelines. Application note 1(c) to USSG § 3E1.1 expressly recognizes that a downward adjustment for acceptance of responsibility may be applicable if the defendant voluntarily paid restitution prior to the adjudication of his or her guilt. Therefore, the district court was authorized to depart from the guidelines based upon O’Malley’s restitution efforts only if, “in light of unusual circumstances, the guideline level attached to that factor is inadequate.” USSG § 5K2.0; see also United States v. Garlich, 951 F.2d 161, 163 (8th Cir.1991) (district court erroneously concluded that it lacked authority to consider the defendant’s voluntary payment of restitution before his adjudication of guilt; “[i]f the district court determines the two-level reduction for acceptance of responsibility inadequately addresses [the defendant’s] restitution, the district court may impose a reasonable sentence outside the guideline range”). While litigating in the district court, O’Malley argued that any restitution amount was inappropriate because Sam’s Club suffered no real financial loss, a position he maintained right up to the point of the district court’s ruling on the amount of the loss. See Sentencing Transcript at 5. Only after that decision was made did O’Malley tender the cashier’s check to pay restitution. Under these circumstances, while O’Malley certainly had a right to dispute the amount of the loss to Sam’s Club, his payment of restitution after his guilt was adjudicated and after the amount of the loss was determined did not qualify as acceptance of responsibility under the guidelines, much less a basis for downward departure. Furthermore, contrary to O’Malley’s argument, the downward departure in the present case is not justified under United States v. Oligmueller. In that case, we held that the amount of the loss resulting from the defendant’s fraudulent attainment of a bank loan should reflect the full amount fraudulently borrowed, without consideration of the defendant’s" }, { "docid": "3866961", "title": "", "text": "district court may want to consider whether this is a factor that would warrant departure. A similar situation arose in United States v. Miller, 991 F.2d 552 (9th Cir.1993), where the sentencing court had departed on the ground that the defendant had two children who would be placed at potential risk, a factor that was found by the Court of Appeals to have been improper inasmuch as the Commission had concluded it is not ordinarily relevant in determining whether to depart. Id. at 553; see United States v. Shoupe, 929 F.2d 116, 121 (3d Cir.1991), Nonetheless, the Court of Appeals noted that the defendant had almost finished serving her six months of home detention at the time the district court held a second sentencing hearing, a fact also cited by the district court in departing from the applicable guideline range. The Court of Appeals stated, in language equally relevant here: We agree it may have been proper to depart because of the six months of home detention Miller had already served. The fact that she’d already been punished to some extent is certainly relevant to what further sentence is needed to punish her and deter others. See 18 U.S.C § 3553(a)(2) (sentence should reflect these and other considerations). And because the Commission seems not to have considered the issue of compensating for time erroneously served, the district court was free to depart. See 18 U.S.C. § 3553(b). Miller, 991 F.2d at 554. We agree. We do not suggest that this is the only possible basis for departure, an inquiry that the Supreme Court emphasized in Koon is primarily within the discretion of the sentencing court. However, we do emphasize that departures based on grounds not mentioned in the Guidelines will be “highly infrequent.” Koon, — U.S. at —, 116 S.Ct. at 2035 (quoting 1995 U.S.S.G. ch. 1, pt: A). As we observed in Bierley, departures not anticipated by the Sentencing Commission in promulgating the Guidelines should be resorted to ■ only in the most “rare occurrences,” Bierley, 922 F.2d at 1069; a sentencing court should be able to articulate ‘“what" }, { "docid": "23236348", "title": "", "text": "U.S.S.G. § 5G1.2(d). B. Standard of Review We review departures from the Sentencing Guidelines under the three-part test of United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc). First, we determine whether the trial court had the legal authority to depart. A district court may depart upward from the applicable guideline range only if it identifies an aggravating circumstance “that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); Lira-Barraza, 941 F.2d at 746. Second, we review for clear error the factual findings in support of the aggravating circumstance identified by the district court as a basis for departure. Finally, we review the reasonableness of the extent of the district court’s departure “in light of the structure, standards and policies of the Act and Guidelines.” Lira-Barraza, 941 F.2d at 746-47, 751. The district court must explain the reasoning for both the direction and degree of its departure in sufficiently specific language to allow us to conduct a meaningful review. 18 U.S.C. § 3553(c)(2); Lira-Barraza, 941 F.2d at 751. C. The Physical Injury Departure The district court indicated that it was departing upward by the equivalent of four offense levels — from level 12 to level 16— to take account of the bite wounds and crushed thumbs suffered by Agents Old-ham and English. Guideline section 5K2.2 authorizes an upward departure in situations where the applicable offense guideline does not provide for a bodily injury adjustment. Streit does not challenge the factual circumstances on which the district court based its decision to depart. The first two prongs of the Lira-Barraza analysis are thus satisfied. The effect of the district court’s physical injury departure was to increase Streit’s sentence from a range of 30-37 months to a range of 46-57 months. The court justified the degree of this departure by analogy to U.S.S.G. § 2A2.2 (Aggravated Assault), which provides for a two-level increase when a defendant’s aggravated assault results in bodily injury. S.T. 55. In arriving at its effective four-level increase, the district court apparently multiplied the two-level increase it derived by" }, { "docid": "3783632", "title": "", "text": "subset of acceptance of responsibility. Yet the district judge’s belief that he had to turn outside § 3E1.1 to find authority to consider repayment, which sets up the prosecutor’s argument, is incorrect. The Sentencing Guidelines permit a judge to reduce the sentence for repayment whether or not the defendant pleads guilty to the charge. Application Note 1(c) to § 3E1.1 lists “voluntary payment of restitution prior to adjudication of guilt” as an independent reason for a two-level acceptance-of-responsibility reduction. Bean repaid the bank before the adjudication of guilt, and the district court therefore was entitled to award a reduction for acceptance of responsibility even though Bean denied guilt. See United States v. Carey, 895 F.2d 318, 323-24 (7th Cir.1990); United States v. Chevalier, 1 F.3d 581, 588 (7th Cir.1993). Nothing in United States v. Seacott, 15 F.3d 1380, 1388-89 (7th Cir.1994), detracts from the express provision of Application Note 1(c) or the approach of cases such as Carey and Chevalier. Although some language in Seacott, taken in isolation, implies that restitution does not afford any ground to depart from the sentence determined under the Guidelines, a reduction under § 3E1.1 is not a “departure.” What is more, the only question before the court in Seacott was whether a district judge may reduce a sentence in order to give the defendant a greater opportunity to pay restitution after conviction. Such a dispensation, we concluded, is improper. Seacott cited and distinguished Carey, 15 F.3d at 1388-89, as standing for the proposition that a court may reward restitution that precedes an adjudication of guilt. Guideline 3El.l(a) permits a reduction of two levels only. Because Bean’s offense level is less than 16, the three-level reduction allowed by § 3El.l(b) is unavailable. To justify the six-level reduction, the district court turned to § 5K2.0, which, following 18 U.S.C. § 3553(b), permits a court to depart when a particular aggravating or mitigating circumstance is present to a degree that the Sentencing Commission has not taken into account. See Carey, 895 F.2d at 323-24. The district court believed that Bean’s repayment was so exceptional that it justified" }, { "docid": "502939", "title": "", "text": "offenses to the authorities, but Carpenter did not qualify for such a departure because he cooperated only after he was discovered. In cooperating with the authorities, Carpenter thus does not appear to have accepted responsibility in a manner “not [thus] adequately taken into consideration” by the Sentencing Commission in formulating section 3E1.1. His cooperation with the authorities cannot therefore act as a predicate for a downward departure under section 5K2.0. Regarding Carpenter’s payment of restitution, we held in United States v. Arjoon, 964 F.2d 167, 171 (2d Cir.1992), that pre-conviction restitution is also a form of acceptance of responsibility “adequately taken into consideration” by the Sentencing Commission in formulating section 3E1.1. Inasmuch as restitution before conviction cannot justify a downward departure, we do not think that compliance with court-ordered restitution after conviction and sentencing can. See also 18 U.S.C. §§ 3613A & 3614 (describing the consequences of failing to pay court-ordered restitution). The same holds true of Carpenter’s efforts to achieve a “genuine” rehabilitation while incarcerated. See August 16 letter at 5. Rehabilitation, even if “genuine,” is not ipso facto sufficient to justify a departure. It must be so “extraordinary” as to not have been taken into account by the Sentencing Commission in formulating the Guidelines. See Bryson, 163 F.3d at 747 (citing United States v. Maier, 975 F.2d 944, 948-49 (2d Cir.1992)). “[Exemplary” behavior while incarcerated is taken into account by the granting of credits toward early release. See 18 U.S.C. § 3624(b). The Sentencing Commission is directed by statute that “[r]ehabilitation ... alone” is not an “extraordinary and compelling” reason for reducing the term of imprisonment for a defendant already serving his or her sentence. 28 U.S.C. § 994(t). Carpenter’s behavior while incarcerated may indicate rehabilitation, but we find nothing in the record to support the conclusion that it was so “extraordinary” as to place it beyond those “circumstances ... adequately taken into consideration” by the Sentencing Commission in formulating the Guidelines. Finally, Carpenter’s post-sentencing work helping new inmates at the halfway house, and his regaining of the trust of his employer, do not establish “extraordinary” rehabilitation. Before" }, { "docid": "23550499", "title": "", "text": "for two types of valid departures. One type is. qualitative: a court may depart in the face of an aggravating or mitigating circumstance ‘of a kind’ not considered by the Commission. The other type is quantitative: a district court may base a departure on factors which, though considered by the Commission, are present ‘to a degree’ not frequently seen in connection with the offender and/or offense of conviction. Honorable Bruce M. Selya & Matthew R. Kipp, An Examination of Emerging Depar ture Jurisprudence Under the Federal Sentencing Guidelines, 67 Notre Dame L.Rev. 1, 22 (1991). Accordingly, courts “have recognized that a defendant’s ameliorative post-arrest conduct may justify a departure even though section 3E1.1 rewards acceptance of responsibility.” Id. at 37 (footnote omitted); see United States v. Garlich, 951 F.2d 161, 163 (8th Cir.1991) (where defendant liquidated his assets prior to indictment to ensure full restitution to banks, district court should have considered whether extent and timing of restitution were sufficiently unusual to warrant downward departure); United States v. Sklar, 920 F.2d 107, 116 (1st Cir.1990) (defendant’s drug rehabilitation may serve as basis for downward departure when present “to a degree not adequately taken into consideration by the acceptance of responsibility reduction,” but totality of circumstances in case not sufficiently unusual to warrant departure); United States v. Carey, 895 F.2d 318, 323 (7th Cir.1990) (unusual payment of restitution may warrant reduction in sentence beyond that granted by § 3E1.1, but departure not justified unless court determines that circumstances are unusual and present to degree substantially in excess of ordinary). We conclude therefore that a sentencing court may depart downward when the circumstances of a case demonstrate a degree of acceptance of responsibility that is substantially in excess of that ordinarily present. It remains then to consider whether there was a sufficient basis for the district court’s exercise of its discretion. The district court found that this case fell outside the heartland of cases to which § 3E1.1 applies primarily because Lieberman not only began to make restitution to the bank shortly after his embezzlement was uncovered, but also entered into an" }, { "docid": "7927571", "title": "", "text": "his illegal activities. We think not. Settling a pending lawsuit scarcely demonstrates contrition. Nor does it indicate a “willingness to adhere to political society’s laws.” United States v. Bean, 18 F.3d 1367, 1369 (7th Cir.1994). In Bean, the defendant, Bill Gene Bean, kited checks, totaling $75,000, “to cover a cash-flow shortage in his recycling business.” Id. at 1368. Bean was charged with committing bank fraud in violation of 18 U.S.C. § 1344. Over a period of two years before trial, Bean repaid the $75,000. He then went to trial, denying that he had intended to defraud a bank, and was convicted by a jury as charged. In these circumstances, the Seventh Circuit observed: The Sentencing Guidelines permit a judge to reduce the sentence for repayment whether or not the defendant pleads guilty to the charge. Application Note 1(c) to § 3E1.1 lists “voluntary payment of restitution prior to adjudication of guilt” as an independent reason for a two-level aeceptance-of-responsibility reduction. Bean repaid the bank before the adjudication of guilt, and the district court therefore was entitled to award a reduction for acceptance of responsibility even though Bean denied guilt. Bean, 18 F.3d at 1368. Unlike Bean, Bennett paid restitution here as part of the settlement of a civil lawsuit. We agree with the Government that Bennett’s payment by way of settlement was not a “voluntary payment of restitution prior to adjudication of guilt,” U.S.S.G. § 3E1.1, comment. (n. 1(c)), that justifies a reduction for acceptance of responsibility. Under U.S.S.G. § 3E1.1, the downward adjustment “must be consistent with the attitude the Commission took toward restitution, which is that restitution is relevant to the extent it shows acceptance of responsibility.” United States v. Miller, 991 F.2d 552, 553 (9th Cir.1993). Accordingly, “the payment [must] have been genuinely voluntary, rather than motivated primarily by a collateral consideration■ such as a desire to settle the civil lawsuit [brought] by the bank[s]. ” Id. (emphasis added). We hold that the district court’s decision to grant Bennett a two-level reduction for acceptance of responsibility was clearly erroneous. C. Use of the November 1, 1988, Guidelines" }, { "docid": "1403182", "title": "", "text": "in support of the departure for “extraordinary acceptance of responsibility” was Grasser’s payment of restitution, which came to around $37,000 when she was sentenced. The pivotal question, then, is whether Grasser’s partial payment of restitution made her acceptance of responsibility present “to a degree” not considered by the Commission. The answer to that question must be “no.” Application Note 1(c) to guideline § 3E1.1 lists “voluntary payment of restitution prior to adjudication of guilt” as an independent reason for a 2-level acceptance of responsibility reduction. (Emphasis added.) Consistent with the application note, we have held that “[voluntary payment of restitution prior to adjudication of guilt can be a basis for finding acceptance of responsibility which would warrant a two level reduction in a defendant’s offense level.” Hendrickson, 22 F.3d at 176 (citing § 3E1.1 Application Note 1(c)). In Hendrickson, however, we explicitly held that “[njeither the payment of restitution nor the payment of a statutorily mandated forfeiture can, in and of itself, be a ground for departing from the Guidelines.” Id. See also United States v. Seacott, 15 F.3d 1380, 1388 (7th Cir.1994) (“a sentencing court could not base a downward departure on the fact that a defendant made restitution to his victim prior to the adjudication of his guilt”) (citing United States v. Carey, 895 F.2d 318, 323 (7th Cir.1990)). In Seacott, we explained the reasoning behind our reluctance to allow departures based on payments of restitution, stating: Allowing sentencing courts to depart downward based on a defendant’s ability to make restitution would thwart the intent of the guidelines to punish financial crimes through terms of imprisonment by allowing those who could pay to escape prison. It would also create an unconstitutional system where the rich could in effect buy their way out of prison sentences. Seacott, 15 F.3d at 1389. Nevertheless, we have held open the possibility that a sentencing court might depart from the guidelines “when the circumstances surrounding the payment of restitution demonstrate a degree of acceptance of responsibility that is truly extraordinary and substantially in excess of that which is ordinarily present.” Hendrickson, 22 F.3d" }, { "docid": "7432929", "title": "", "text": "672, for the proposition that his restitution effort justified the downward departure in the present case. O’Malley-further argues that departure for extraordinary restitution is appropriate in the present ease because “[o]therwise, there is no 'incentive for a defendant to make such substantial and extraordinary effort.” He concludes that even a sentence at the low end of his guideline sentencing range would not “adequately distinguish or award [sic] such extraordinary efforts.” Brief for Appellee at 29. The district court, in its statement of reasons, suggested that O’Malley’s actions were extraordinary because of the extern sive borrowing efforts and financial commitment he was required to make in order to obtain such a sizable bank loan prior to the sentencing hearing. The district court expressly noted “the extraordinary restitution effort of the defendant to take out a loan to pay restitution immediately.” We, too, recognize that O’Malley must have gone to great lengths to have a cashier’s check for $459,047.02 readily available for tender at the sentencing hearing. However, to treat such efforts as warranting a downward departure from the guidelines would differentiate criminal defendants on the basis ' of their economic resources, which is clearly contrary to the intent of the sentencing guidelines. Moreover, voluntary payment of restitution is a mitigating circumstance that has been taken into consideration by the Sentencing Commission in formulating the guidelines. Application note 1(c) to USSG § 3E1.1 expressly recognizes that a downward adjustment for acceptance of responsibility may be applicable if the defendant voluntarily paid restitution prior to the adjudication of his or her guilt. Therefore, the district court was authorized to depart from the guidelines based upon O’Malley’s restitution efforts only if, “in light of unusual circumstances, the guideline level attached to that factor is inadequate.” USSG § 5K2.0; see also United States v. Garlich, 951 F.2d 161, 163 (8th Cir.1991) (district court erroneously concluded that it lacked authority to consider the defendant’s voluntary payment of restitution before his adjudication of guilt; “[i]f the district court determines the two-level reduction for acceptance of responsibility inadequately addresses [the defendant’s] restitution, the district court may impose a" }, { "docid": "2233392", "title": "", "text": "This case clearly does not. The district court departed four levels based on O’Kane’s acceptance of responsibility as demonstrated by his restitution to his employer of the full value of his fraud prior to adjudication; his immediate admission of his conduct to authorities; and his continued cooperation during the investigation. (Appellant’s Adden. at 7.) Our authorities, as well as the Guidelines themselves, make clear that this is an insufficient basis for departure. Departure from the Sentencing Guidelines is warranted only when “the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described.” 18 U.S.C. § 3553(b). Victim restitution is a listed basis for reducing the offense level within the Guideline for acceptance of responsibility. “In determining whether a defendant qualifies under [section 3E.l.(a) ], appropriate considerations include ... voluntary payment of restitution prior to adjudication of guilt.” USSG § 3E1.1, comment. (n.l(c)). That is, in deciding whether a defendant qualifies for the initial adjustment in offense level for acceptance of responsibility, the court should consider whether the defendant has voluntarily made restitution to the victims of his crimes. Since the Commission has explicitly listed restitution as a ground for adjustment within the acceptance of responsibility Guideline, it is not possible to view it as a “circumstance ... not adequately considered” which would move O’Kane out of the heartland of cases and justify a departure under Section 5K2.0 unless something considerably more unusual is at play. This court has recognized that voluntary restitution can be made under circumstances which warrant the district court’s consideration of a departure. In United States v. Garlich 951 F.2d 161 (8th Cir.1991), the defendant had repaid the victims of his fraud over $1.4 million even before he was indicted. Upon entering a plea of guilty, the sentencing court determined that the total harm caused by Garlieh’s crime was only $253,000. In remanding for resentencing we said, “Although the district court gave Garlich this reduction [for acceptance of responsibility], we conclude the" }, { "docid": "18615085", "title": "", "text": "other hand, are not controlled by statute, but are granted, in cases permitted by the Guidelines, largely according to the sentencing judge's discretion. The option of downward departures was included in the Guidelines to account for circumstances relevant to the determination of a just sentence but not considered in setting the Guidelines sentencing ranges. The Guidelines expressly authorize downward departure in a variety of circumstances, such as when the defendant is afflicted with an extraordinary physical impairment (§ 5H1.4), is aged or infirm (§ 5H1.1), provided substantial assistance to authorities (§ 5K1.1), was provoked by the victim (§ 5K2.10), or committed a crime under coercion and duress (§ 5K2.12) or to avoid a greater harm (§ 5K2.11). The Guidelines also authorize downward departures to account for other circumstances not considered by the Sentencing Commission. Section 5K2.0 of the Guidelines states that if the sentencing judge identifies a mitigating circumstance “not adequately taken into consideration” by the Commission, he “may impose a sentence outside the range established by the applicable guideline.” U.S.S.G. § 5K2.0. We have never directly considered whether pre-trial home detention can serve as the basis for downward departure under the Guidelines. Nevertheless, our holding in United States v. Miller, 991 F.2d 552 (9th Cir.1993), makes it clear that time spent in home detention may be relevant in determining the availability of downward departure in some circumstances. In Miller, the district court departed downward to account for the six months that the defendant had already served under an erroneously imposed sentence of home detention. To make the defendant serve the entire Guideline sentence would, according to the district court, have constituted a “travesty”. In upholding the downward departure, we suggested that home detention constituted significant punishment: We agree it may have been proper to depart because of the six months of home detention Miller had already served. The fact that she’d already been punished to some extent is certainly relevant to what further sentence is needed to punish her and deter others. See 18 U.S.C. § 3553(a)(2) (sentence should reflect these and other considerations). And because the Commission seems" }, { "docid": "23291767", "title": "", "text": "with authority to depart downward based on extraordinary restitution, we remand this case for reconsideration of Garlich’s sentence. See United States v. Brown, 903 F.2d 540, 545 (8th Cir.1990). A district court has discretion to depart downward from a sentencing guidelines range if the court finds a “mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (1988); see also U.S.S.G. § 5K2.0. A district court can also depart from the guidelines based on a factor the Commission considered if the court finds that “in light of unusual circumstances, the guideline level attached to that factor is inadequate.” U.S.S.G. § 5K2.0. In other words, “When a court finds an atypical case, one to which a particular guideline linguistically applies but [in which the defendant’s mitigating] conduct significantly differs from the norm, the court may consider whether a departure is warranted.” Id. ch. 1, pt. A(4)(b). A government motion is not a prerequisite to a departure based on unusual circumstances. Compare U.S.S.G. § 5K2.0 with U.S.S.G. § 5K1.1 (requiring government motion before departure for substantial assistance to authorities); see also United States v. Harotunian, 920 F.2d 1040, 1042-43 (1st Cir.1990). A defendant’s voluntary payment of restitution before adjudication of guilt is a factor considered in determining whether the defendant qualifies for a two-level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1 n. 1(b). Although the district court gave Garlich this reduction, we conclude the district court should consider whether the extent and timing of Garlich’s restitution are sufficiently unusual to warrant a downward departure. See U.S.S.G. § 5K2.0; United States v. Brewer, 899 F.2d 503, 509 (6th Cir.), cert. denied, — U.S. —, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Carey, 895 F.2d 318, 322-23 (7th Cir.1990). If the district court determines the two-level reduction for acceptance of responsibility inadequately addresses Garlich’s restitution, the district court may impose a reasonable sentence outside the guidelines range. See United States v. Smith, 909 F.2d 1164, 1169 (8th Cir.1990), cert. denied, — U.S. —, 111" }, { "docid": "7927572", "title": "", "text": "entitled to award a reduction for acceptance of responsibility even though Bean denied guilt. Bean, 18 F.3d at 1368. Unlike Bean, Bennett paid restitution here as part of the settlement of a civil lawsuit. We agree with the Government that Bennett’s payment by way of settlement was not a “voluntary payment of restitution prior to adjudication of guilt,” U.S.S.G. § 3E1.1, comment. (n. 1(c)), that justifies a reduction for acceptance of responsibility. Under U.S.S.G. § 3E1.1, the downward adjustment “must be consistent with the attitude the Commission took toward restitution, which is that restitution is relevant to the extent it shows acceptance of responsibility.” United States v. Miller, 991 F.2d 552, 553 (9th Cir.1993). Accordingly, “the payment [must] have been genuinely voluntary, rather than motivated primarily by a collateral consideration■ such as a desire to settle the civil lawsuit [brought] by the bank[s]. ” Id. (emphasis added). We hold that the district court’s decision to grant Bennett a two-level reduction for acceptance of responsibility was clearly erroneous. C. Use of the November 1, 1988, Guidelines Manual Effective November 1, 1989, the loss table in U.S.S.G. § 2Fl.l(b)(l) was amended. Among other things, the amendment “increasefd] the offense levels for offenses with larger losses to provide additional deterrence and better reflect the seriousness of the conduct.” U.S.S.G. App. C, amend. 154. All of the line-of-credit advances that corresponded with the nine counts of conviction were obtained prior to the November 1,1989, amendment to the loss table. Consequently, when Bennett was sentenced in May 1993, there was an issue as to whether using the version of the Guidelines Manual then in effect (i.e., the November 1, 1992, edition) — which included the amended loss table — would violate the Ex Post Facto Clause of the United States Constitution. U.S. Const, art. I, § 9, cl. 3; see United States v. Havener, 905 F.2d 3, 5 (1st Cir.1990) (“[T]he Constitution’s [E]x [P]ost [F]acto [C]lause forbids the application of any law or rule that increases punishment to preexisting criminal conduct.” (emphasis in original)). With this concern in mind, the district court, pursuant to U.S.S.G." }, { "docid": "1403181", "title": "", "text": "that should result in a sentence different from that described.’” United States v. Hendrickson, 22 F.3d 170, 174 (7th Cir.1994) (citing 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0; United States v. Frazier, 979 F.2d 1227, 1229 (7th Cir.1992)). Thus, a departure is justified only if the pertinent sentencing factor (1) is “of a kind, or [ (2) is present in the case] to a degree, not adequately taken into consideration by the Sentencing Commission .... ” 18 U.S.C. § 3553(b). The pertinent sentencing factor here— acceptance of responsibility — is obviously not “a mitigating circumstance of a kind ... not adequately taken into consideration by the Sentencing Commission .... ” Id. In U.S.S.G. § 3E1.1, the Commission recognized that acceptance of responsibility is a mitigating circumstance and provided for either a 2- or 3-level reduction when the factor is present. Grasser got a 3-point reduction for timely acceptance of responsibility, and there is no fuss about that. But could she get 6 more points? We don’t think so. The only circumstance the district court cited in support of the departure for “extraordinary acceptance of responsibility” was Grasser’s payment of restitution, which came to around $37,000 when she was sentenced. The pivotal question, then, is whether Grasser’s partial payment of restitution made her acceptance of responsibility present “to a degree” not considered by the Commission. The answer to that question must be “no.” Application Note 1(c) to guideline § 3E1.1 lists “voluntary payment of restitution prior to adjudication of guilt” as an independent reason for a 2-level acceptance of responsibility reduction. (Emphasis added.) Consistent with the application note, we have held that “[voluntary payment of restitution prior to adjudication of guilt can be a basis for finding acceptance of responsibility which would warrant a two level reduction in a defendant’s offense level.” Hendrickson, 22 F.3d at 176 (citing § 3E1.1 Application Note 1(c)). In Hendrickson, however, we explicitly held that “[njeither the payment of restitution nor the payment of a statutorily mandated forfeiture can, in and of itself, be a ground for departing from the Guidelines.” Id. See also United States" } ]

[ { "docid": "22556211", "title": "", "text": "Mr. Justice White delivered the opinion of the Court. These cases began when appellants, minority political parties and their candidates, qualified voters supporting the minority party candidates, and independent unaffiliated candidates, brought four separate actions in the United States District Court for the Western District of Texas against the Texas Secretary of State seeking declaratory and injunctive relief against the enforcement of various sections of the Texas Election Code. The American Party of Texas sought ballot position at the general election in 1972 for a slate of candidates for various statewide and local officers, including governor and county commissioner. The New Party of Texas wanted ballot recognition for its candidates for the general election for governor, Congress, state representative and county sheriff. The Socialist Workers Party made similar claims with respect to its candidates for governor, lieutenant governor and United States Senator. Laurel Dunn, a nonpartisan candidate, at tempted to run for the United States House of Representatives from the Eleventh Congressional District. In his action, he represented himself and other named independent candidates for state and local offices. Finally, Robert Hainsworth sought election as state representative from District No. 86. In these actions, it was alleged that, by excluding appellants from the general election ballot, various provisions of the Texas Election Code infringed their First and Fourteenth Amendment right to associate for the advancement of political beliefs and invidiously discriminated against new and minority political parties, as well as independent candidates. Appellants sought to enjoin the enforcement of the challenged provisions in the forthcoming November 1972 general election. They also challenged the failure of the Texas law to require printing minority party and independent candidates on absentee ballots and the exclusion of minority parties from the benefits of the McKool-Stroud Primary Law of 1972. The individual cases involving the parties in No. 72-887 were consolidated, and a statutory three-judge District Court was convened. Following a trial, the District Court denied all relief after holding that, in their totality, the challenged provisions served a compelling state interest and did not suffocate the election process. Raza Unida Party v. Bullock, 349" } ]

[ { "docid": "22217840", "title": "", "text": "note 21. . Section 1983 states, in relevant part: \"Every person who, under color of any statute, ordinance, or regulation, custom, or usage, of any state ... 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 in an action at law, suit in equity, or other proper proceeding for redress. ...\" 42 U.S.C. § 1983 (emphasis added). Significantly, neither the word \"position\" nor “office” is used in the statute. Cf. Mesa v. California, 489 U.S. 121, 135, 109 S.Ct. 959, 968, 103 L.Ed.2d 99 (1989) (defining \"under color of office” to mean “in the performance of [the official’s] duties”). . Technically, Barney and the other Fourteenth Amendment cases referred to infra involve the question whether the actions of a state official constituted “state action” for the purpose of the Fourteenth Amendment. However, these cases are relevant to the under-color-of-state-law inquiry because \"in a § 1983 action brought against a state official, the statutory requirement of action 'under color of state law’ and the 'state action’ requirement of the Fourteenth Amendment are identical.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982). . See also Lugar, 457 U.S. at 933, 102 S.Ct. at 2744, where a debtor brought a § 1983 claim against his corporate creditor and its president, alleging that they deprived him of his property without due process by obtaining a prejudgment attachment of the property pursuant to a Virginia statute. The Court agreed with the defendants’ contention that no state action occurred. \"As a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments.\" Id. at 936, 102 S.Ct. at 2753 (citation omitted). “In 1883, this Court in the Civil Rights Cases, 109 U.S. 3 [3 S.Ct. 18, 27 L.Ed. 835], affirmed the essential dichotomy set forth in [the Fourteenth] Amendment between deprivation by the State," }, { "docid": "4458487", "title": "", "text": "at the outset that the courts of appeals are divided on the question whether actions taken by a union pursuant to an agency-shop provision in a collective bargaining agreement constitute state action. Compare Price v. UAW, 795 F.2d 1128 (2d Cir.1986) (no state action); Kolinske v. Lubbers, 712 F.2d 471 (D.C.Cir.1983) (same); with Beck v. Communications Workers of Am., 776 F.2d 1187 (4th Cir.1985) (state action); Linscott v. Millers Falls Co., 440 F.2d 14 (1st Cir.1971) (same). The Supreme Court has explicitly left this issue open. See Communications Workers of Am. v. Beck, 487 U.S. 735, 761, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988) (“We need not decide whether the exercise of rights permitted, though not compelled, by § 8(a)(3) [of the National Labor Relations Act] involves state action”)- For essentially the reasons outlined by the District of Columbia and Second Circuits, we agree that state action is not present in these circumstances. We add the following comments addressing the specific arguments that White has advanced. A. To establish that challenged conduct was state action, a plaintiff must demonstrate two things. First, the conduct at issue must either be mandated by the state or must represent the exercise of a state-created right or privilege. Am. Manufacturers Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Second, the party who engaged in the challenged conduct must be a person or entity that can “ ‘fairly be said to be a state actor.’ ” Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)); see also Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir.1999). Because we hold that White has failed to make the second showing required to establish state action, we need not reach the question whether he has made the first. In determining whether a person or entity can be fairly described as a state actor, “it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a" }, { "docid": "5339970", "title": "", "text": "to Fed.R.Civ.P. 52(a), findings of fact by a district judge are not reversed unless “clearly erroneous.” Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 990 F.2d 865, 870 (6th Cir.1993). We review de novo conclusions of law and mixed questions of law and fact. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir.1996); Sandler v. AII Acquisition Corp., 954 F.2d 382, 384-5 (6th Cir.1992). State Action Requirement It is undisputed that First and Fourteenth Amendment protections, codified in 42 U.S.C. § 1983, are triggered only in the presence of state action and that a private entity acting on its own cannot deprive a citizen of First Amendment rights. See, e.g., Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (“most rights secured by the Constitution are protected only against infringement by governments”); Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (“It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state.”). Memphis in May contends that the district court erred when it ruled that Memphis in May, despite its status as a private corporation, operated as a state actor in ejecting Lansing from the area between the barricades. However, a private entity can be held to constitutional standards when its actions so approximate state action that they may be fairly attributed to the state. See, e.g., American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, -, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Supreme Court in Lugar identified a two-part approach to the question of “fair attribution,” effectively requiring that the action be taken (a) under color of state law, and (b) by a state actor. See Lugar, 457 U.S. at 937, 102 S.Ct. 2744. In this circuit we have applied three tests to help in determining when the Lugar conditions are met. These are: (1) the public function test; (2) the state compulsion test;" }, { "docid": "541975", "title": "", "text": "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. This statute, promulgated as part of the Civil Rights Act of 1871, provides “the party injured” with a cause of action for violations of constitutional rights by “every person,” that is, both private persons and private entities, but liability is imposed only for deprivations carried out under color of law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). “In cases construing section 1983, ‘under color’ of law has been treated consistently as equivalent to the ‘state action’ requirement under the Fourteenth Amendment.” Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 215 (4th Cir.1993) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)). As the Supreme Court recently reaffirmed, two principles guide state action determinations: [S]tate action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible” and that “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” American Manufacturers Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). In this case, our analysis of state action turns on whether Chestnut Ridge and the members of its Executive Committee “may fairly be said to be ... state actor[s].” American Manufacturers, 526 U.S. at 50, 119 S.Ct. 977. A handful of contexts have been identified in which we can be confident that the conduct of an ostensibly private actor is under color of law for purposes of section 1983. The first exists where, “ ‘in light of all the circumstances,’ ... the Government did more than adopt a passive position" }, { "docid": "23670214", "title": "", "text": "Id. at 1949 (internal quotation marks omitted). Although “we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 1949-50. “[CJonclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996). Ill Section 1983 “provides remedies for deprivations of rights under the Constitution and laws of the United States when the deprivation takes place under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” Gorenc v. Salt River Project Agric. Improvement & Power Dist., 869 F.2d 503, 505 (9th Cir.1989) (internal quotation marks omitted). In order to recover under § 1983 for conduct by the defendant, a plaintiff must show “that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see also Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). The state-action element in § 1983 “excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (internal quotation marks omitted). As we have explained, “[s]tate action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 955 (9th Cir.2008) (en banc) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001)). “[Cjourts have developed a variety of approaches” for determining whether such a close nexus is present. Lee, 276 F.3d at 554 (noting that the Supreme Court in Brentwood “list[ed] seven approaches to the issue”); see id. at 554 n. 3;" }, { "docid": "19656047", "title": "", "text": "Hein & Co., Inc. 1997) (1947) (Crimes against humanity committed against German nationals are subject to punishment “only where there is proof of conscious participation in systematic government organized or approved procedures.... ”). Indeed, this explains why Sosa specifically held that, before jurisdiction is accepted over an ATCA cause of action against a private actor, it must be determined “whether international law extends the scope of liability for a violation of a given norm to ... a private actor.... ” 542 U.S. at 732 n. 20, 124 S.Ct. 2739. Cf. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (linking the color-of-law element of 42 U.S.C. § 1983 to the underlying state-action requirement of the Fourteenth Amendment, and holding that both exclude from their reach “merely private conduct, no matter how discriminatory or wrongful”) (internal quotation marks and citation omitted). We have held that case law construing 42 U.S.C. § 1983 is “a relevant guide to whether a defendant has engaged in official action for purposes of jurisdiction under the Alien Tort Act.” Kadic, 70 F.3d at 245. As Judge Newman observed, “[a] private individual acts under color of law within the meaning of section 1983 when he acts together with state officials or with significant state aid.” Id. (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). Subsequently, the Supreme Court has cautioned that the language from Lugar, which Judge Newman paraphrased, “must not be torn from the context out of which it arose,” Sullivan, 526 U.S. at 58, 119 S.Ct. 977, namely, an ex parte application for a writ of attachment. This admonition is a useful reminder that the “under color of law” cases arise in varying contexts. Many, including cases on which plaintiffs rely, have been limited to their facts. Id. at 55-59, 119 S.Ct. 977. Perhaps the largest single category of cases under color of law are those in which the primary offender or tortfeasor is a private party, and the issue turns on whether “seemingly private behavior ‘may" }, { "docid": "23480181", "title": "", "text": "tion and its employees and agents act under color of state law for purposes of 42 U.S.C. § 1983 when they perform surgery on seized pets against the owner’s wishes or without the owner’s knowledge. This case therefore presents an issue of first impression for our Court. Section 1983 provides that “[e]very person who, under color of any [state] statute, ordinance, regulation, custom, or usage ... 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. “Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir.2005) (internal quotation marks omitted). “A plaintiff pressing a claim of violation of his constitutional rights under § 1983 is thus required to show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003); see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n. 2, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (“If a defendant’s conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.”). “[S]tate action requires both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,’ and that ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.’ ” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct." }, { "docid": "22201364", "title": "", "text": "the analysis for each is identical. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (stating “[I]t is clear that in a § 1983 action brought against a state official, the statutory requirement of action ‘under color of state law’ and the ‘state action’ requirement of the Fourteenth Amendment are identical.”); United States v. Price, 383 U.S. 787, 794, n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir.1998); Moore v. Williamsburg Reg'l Hosp., 560 F.3d 166, 178 (4th Cir.2009) (“The same analysis applies to whether an action was taken ‘under color of state law’ as required by § 1983 and whether the action was state action.”); Haavistola v. Cmty. Fire Co., 6 F.3d 211, 215 (4th Cir.1993). It has been observed that “ ‘merely private conduct, no matter how discriminatory or wrongful[,]’ ” fails to qualify as state action. See Mentavlos, 249 F.3d at 301 (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)). This is so, in part, to “ ‘preserve[ ] an area of individual freedom by limiting the reach of federal lavif and ‘avoiding] imposition] [up]on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.’ ” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (quoting Lugar, 457 U.S. at 936-37, 102 S.Ct. 2744). In sum, “ ‘private activity \"will generally not be deemed “state action” unless the state has so dominated such activity as to convert it to state action: “Mere approval of or acquiescence in the initiatives of a private party” is insufficient.’ ” Wahi, 562 F.3d at 616 (quoting DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir.1999)). Nevertheless, there are infrequently arising circumstances under which the actions of an ostensibly private party will be deemed to satisfy the color-of-law requirement. We" }, { "docid": "22192315", "title": "", "text": "The controlling question with respect to Black Smokers’ claims under Bivens, supra, and the federal Constitution is whether defendant tobacco companies should be regarded as federal actors. In Bivens, the Supreme Court found that a damages claim arose under the federal Constitution where a federal agent acting under color of federal authority violated the Fourth Amendment. Id. A Bivens action, which is the federal equivalent of the § 1983 cause of action against state actors, will lie where the defendant has violated the plaintiffs rights under color of federal law. Alexander v. Pennsylvania Dep’t of Banking, No. Civ. 93-5510, 1994 WL 144305, at *3 (E.D.Pa. April 21, 1994). Black Smokers also make “direct constitutional” claims under the Fourteenth and Fifth Amendments. As the District Court noted in its opinion, the Fourteenth Amendment only applies to actions of the states and not to the federal government; therefore, the District Court properly granted defendants’ motion to dismiss the Fourteenth Amendment claims. For Black Smokers’ Bivens and Fifth Amendment claims to succeed, Black Smokers must establish that defendants are federal actors. Because defendants’ conduct cannot properly be regarded as federal, these claims must fail. In order to determine whether the conduct of a private party should be attributed to the federal government, courts apply the “state action” analysis set forth by the Supreme Court in Lugar v. Edmondson Oil Co., 457 U.S. 922, 937-42, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Supreme Court succinctly summarized the two-part test of Lugar in its decision in Edmonson v. Leesvitte Concrete, 500 U.S. 614, 620, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). There, the Court stated that Lu-gar requires courts to ask “first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in [federal] authority ... and second, whether the private party charged with the deprivation could be described in all fairness as a [federal] actor.” Leesville Concrete, 500 U.S. at 620, 111 S.Ct. 2077 (applying Lugar) (citations omitted). Citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)," }, { "docid": "16258651", "title": "", "text": "relief.” Id. (quotation omitted). IV. DISCUSSION To state a claim under § 1983, Plaintiffs must allege that they were deprived of a right “secured by the Constitution and laws” of the United States and that this 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). On appeal Plaintiffs contend that the district court erred when it concluded that the complaint failed to satisfy the color of state law requirement of § 1983. Plaintiffs argue that the involvement of the police in searching Moss and Yanaki’s home and seizing their property pursuant to the Search and Enforcement Orders suffices to establish conduct committed under color of law. To be under color of law, the deprivation of a federal right “must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible” .and “the party charged with the deprivation must be á person who may fairly be said to be a state actor ... because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Applying this analytical framework in Lugar, the Court determined that the plaintiffs allegation that private conduct unlawful under state law deprived the plaintiff of his property without due process failed to state a claim under § 1983. Id. at 940, 102 S.Ct. 2744. The Court reasoned that the conduct “could not be ascribed to any governmental decision; rather [defendants] were acting contrary to the relevant policy articulated by the State.” Id. The Court concluded that invocation of a state “statute without the grounds to do so could in no way be attributed to a state rule or a state decision.” Id. Similarly, this court has held that a private litigant’s use of" }, { "docid": "23088468", "title": "", "text": "2764, 73 L.Ed.2d 418 (1982) (citation and internal quotation marks omitted); see also Kitchens v. Bowen, 825 F.2d 1337, 1340 (9th Cir.1987) (“[T]he standards utilized to find federal action ... are identical to those employed to detect state action.”) (citation and internal quotation marks omitted). As this court has recognized in Collins v. Womancare, 878 F.2d 1145, 1151 (9th Cir.1989), the Supreme Court has adopted a two-part test for answering that question. First, the deprivation must result from a governmental policy. See id. In other words, the deprivation “must be caused by the exercise of some right or privilege created by the [government] or a rule of conduct imposed by the [government].” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Neither party disputes that the IRC and INS requirements that employers obtain their employees’ social security numbers satisfy this criterion. Both are rules of conduct imposed by the federal government that caused Plaintiffs deprivation. Second, “the party charged with the deprivation must be a person who may fairly be said to be a [governmental] actor.” Id. The Court adopted that test because “ § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrong.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) (citation and internal quotation marks omitted). Indeed, “[w]ithout a limit such as this, private parties could face ... litigation whenever they seek to rely on some ... rule governing their interactions with the community surrounding them.” Lugar, 457 U.S. at 937, 102 S.Ct. 2744. When addressing whether a private party acted under color of law, we therefore start with the presumption that private conduct does not constitute governmental action. See Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992) (“Only in rare circumstances can a private party be viewed as a ‘state actor’ for section 1983 purposes.”); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.1991) (“[P]rivate parties are not generally acting under color of state law.”). In order for private conduct to constitute governmental" }, { "docid": "21014996", "title": "", "text": "F.3d 192, 194 (6th Cir.1995) (internal quotation marks and citation omitted). A plaintiff may not proceed under § 1983 against a private party “no matter how discriminatory or wrongful” the party’s conduct. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (internal quotation marks and citations omitted). Nevertheless, there are circumstances under which private persons may, by their actions, become “state actors” for § 1983 purposes. “Private persons, jointly engaged with state officials in [a] prohibited action, are acting under color of law for purposes of the statute. To act under color of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (internal quotation marks and citation omitted). Therefore, a private party can fairly be said to be a state actor if (1) the deprivation complained of was “caused by the exercise of some right or privilege created by the State” and (2) the offending party “acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Generally, “a private party’s mere use of the State’s dispute resolution machinery, without the ‘overt, significant assistance of state officials,’ cannot [be considered state action].” Am. Mfrs., 119 S.Ct. 977, 526 U.S. at 54 (quoting Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988)). Finally: This circuit recognizes three tests for determining whether private conduct is fairly attributable to the state: the public function test, the state compulsion test, and the nexus test. The public function test requires that the private entity exercise powers which are traditionally exclusively reserved to the state.... The state compulsion test requires proof that the state significantly encouraged or somehow coerced the private party, either" }, { "docid": "23461244", "title": "", "text": "the Does had failed to state a claim against her in her official capacity, and that she was entitled to qualified immunity in her individual capacity. The district court granted summary judgment for White in her official capacity, but denied her motion as to her individual capacity. White appeals this denial of summary judgment on her qualified immunity claim, asserting that the Does have failed to state a § 1983 claim against her, and that in any event she is entitled to qualified immunity. II. A. To state a claim under § 1983, plaintiffs must allege two elements: first, that they were deprived of a right or interest secured by the Constitution and laws of the United States, and second, that the deprivation occurred under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988). Where an asserted interest is protected by a constitutional provision that operates only against the State, such as those of the Fourteenth Amendment, plaintiffs must also allege state action to satisfy the first step of alleging an actionable deprivation. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 2750, 73 L.Ed.2d 482 (1982). Hence, in alleging a violation of the Due Process Clause of the Fourteenth Amendment, the under color of state law requirement of § 1983 is usually overlapped by an allegation of state action made in asserting the constitutional violation. The Fourteenth Amendment’s state action requirement may be nominally distinct from § 1983’s under color of state law requirement, but the two inquiries are related; a showing of state action is sufficient to establish action under color of state law, id. at 935 & n. 18, 102 S.Ct. at 2752 & n. 18, and “it is clear that in a § 1983 action brought against a state official, the statutory requirement of action ‘under color of state law’ and the ‘state action’ requirement of the Fourteenth Amendment are identical,” id. at 929, 102 S.Ct. at 2749. Accordingly, in § 1983 suits alleging a violation of the Due Process Clause" }, { "docid": "23480182", "title": "", "text": "plaintiff pressing a claim of violation of his constitutional rights under § 1983 is thus required to show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003); see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n. 2, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (“If a defendant’s conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.”). “[S]tate action requires both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,’ and that ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.’ ” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (emphasis omitted). “Conduct that is formally ‘private’ may become so entwined with governmental policies or so impregnated with a governmental character that it can be regarded as governmental action.” Rendell-Baker v. Kohn, 457 U.S. 830, 847, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (internal quotation marks omitted). But a private entity does not become a state actor for purposes of § 1983 merely on the basis of “the private entity’s creation, funding, licensing, or regulation by the government.” Cranley v. Nat’l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir.2003). Rather, “there must be such a close nexus between the [s]tate and the challenged action” that the state is “responsible for the specific conduct of which the plaintiff complains.” Id. at 111 (internal quotation marks omitted). Supreme Court cases on the subject of state action “have not been a model of consistency,” and we therefore have “no single test to identify state actions and state actors. Rather, there are a host of factors that can bear on the" }, { "docid": "23547390", "title": "", "text": "Cir.2004). Id. at 782 (alteration in original). 2. We next consider the principle that, to be held liable under section 1983, a private entity must have acted under color of state law. a. When a plaintiff brings a section 1983 claim against a defendant who is not a government official or employee, the plaintiff must show that the private entity acted under the color of state law. This requirement is an important statutory element because it sets the line of demarcation between those matters that are properly federal and those matters that must be left to the remedies of state tort law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Jackson v. Metro. Edison Co., 419 U.S. 345, 349-51, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Both the Supreme Court and the lower federal courts have acknowledged the difficulty of determining whether a private entity has acted under the color of state law. As our colleagues on the Second Circuit have noted, this determination constitutes “one of the more slippery and troublesome areas of civil rights litigation.” Int’l Soc’y for Krishna Consciousness v. Air Canada, 727 F.2d 253, 255 (2d Cir.1984) (quotation marks omitted). However, we have not been left foundering in uncharted waters; recent years have witnessed a long line of decisions in which the Supreme Court has given us significant guidance. At its most basic level, the state action doctrine requires that a court find such a “close nexus between the State and the challenged action” that the challenged action “may be fairly treated as that of the State itself.” Jackson, 419 U.S. at 351, 95 S.Ct. 449 (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972)). In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Supreme Court wrote that “[t]he ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of" }, { "docid": "23658650", "title": "", "text": "1871 creates a private right of action against [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or territory or the District of Columbia, 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____ 42 U.S.C. § 1983 (Supp. V 1981). Plaintiffs here complain that the automatic supersedeas fails to accord them their constitutional right to due process before depriving them of their property interest. Because the Fourteenth Amendment creates this due process right, the right only runs against a “state.” Thus, plaintiffs must show a deprivation by defendants which satisfies both section 1983’s “under color of state law” requirement and the Fourteenth Amendment’s “state action” requirement. The Supreme Court has stated, however, that “[i]f the challenged conduct ... constitutes state action as delimited by our prior decisions, then that conduct was also action under color of state law and will support a suit under § 1983.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 935, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); accord Jack son v. Temple University, 721 F.2d 931, 932-933 (3d Cir.1983); Community Medical Center v. Emergency Medical Services, 712 F.2d 878, 879 n. 3 (3d Cir.1983). We therefore need only embark on one unified inquiry for purposes of the due process clause and section 1983. Our primary guidance in that inquiry comes from three recent Supreme Court opinions. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). Since the Supreme Court’s state action trilogy, the Court of Appeals for the Third Circuit has given some further guidance on the issue of state action. See Jackson v. Temple University, 721 F.2d 931 (3d Cir.1983); Nguyen v. United States Catholic Conference, 719 F.2d 52 (3d Cir.1983); Community Medical Center v. Emergency Medical Services," }, { "docid": "11509912", "title": "", "text": "a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment.\"); see also Norman, 502 U.S. at 288 n. 8, 112 S.Ct. 698; Republican Party v. Faulkner County, 49 F.3d 1289, 1293 n. 2 (8th Cir.1995) (\"In election cases, equal protection challenges essentially constitute a branch of the associational rights tree.”).. . See Anderson, 460 U.S. at 786, 103 S.Ct. 1564 (\" '[T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.’ ”) (citation omitted); Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (same); Rhodes, 393 U.S. at 30, 89 S.Ct. 5 (\"In the present situation, the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters ... to cast their votes effectively.”) . For the kind of conduct at issue here, the \"under color of state law” standard of § 1983 and the \"state action” requirement for a claim under the Constitution are synonymous. See Hafer, 502 U.S. at 28, 112 S.Ct. 358 (“[I]n § 1983 actions the statutory requirement of action ‘under color of state law is just as broad as the Fourteenth Amendment’s 'state action’ requirement.”); Tarkanian, 488 U.S. at 182 n. 4, 109 S.Ct. 454; see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 & n. 18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (holding conduct that satisfies \"state action” requirement of Fourteenth Amendment also satisfies \"under color of state law” requirement, but noting that conduct satisfying latter may sometimes not satisfy former). . Although we found state action, we rejected plaintiffs' challenges in both Georgia and Bode on the merits. See Georgia, 447 F.2d at 1280; Bode, 452 F.2d at 1310. . Brown rejected an attack by Illinois' uncommitted Wigoda delegates on their unseating and enjoined them from further prosecuting an Illinois state court action they had brought against those" }, { "docid": "19775776", "title": "", "text": "1307, 1321-22 (E.D.Pa.1973) (holding that requiring lawyers to provide their Social Security numbers annually to the Pennsylvania Supreme Court certainly “does not rise to a breach of any federal constitutional rights.”), aff'd without opinion, 487 F.2d 1394 (3d Cir.1973). Therefore, in this case, Plaintiffs claims that his constitutional right to privacy was violated because he was required to provide a social security number fail to state claims upon which relief can be granted and should be dismissed. B. Bivens Action Plaintiff also fails to assert properly a Bivens action against Defendants to for alleged violations of the First, Fourth, and Fifth Amendments of the Federal Constitution. A Bivens action is the federal equivalent of the Section 1983 cause of action and will lie where the defendant has violated the plaintiffs rights under color of federal law. See Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir.2001). Federal action requires 1) an alleged constitutional deprivation caused by the exercise of some right or privilege created by the [Federal Government] or by a rule of conduct imposed by the [Federal Government] and 2) that “the party charged with the deprivation must be a person who may fairly be said to be a [Federal] actor.” See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937-42, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)); see also Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3d Cir.2001)(stating that courts use the same test for determining state action enunciated in Lugar to determine whether there is federal action under Bivens ) 1. Caused by a Rule of Conduct Imposed by the Federal Government Plaintiff contends his termination was federal action because the “federal government has specifically authorized and approved [Plaintiffs] termination under the color of law.” Compl. ¶ 85. “Action taken by private entities with the mere approval or acquiescence of the State is not state action.” Sullivan, 526 U.S. at 52, 119 S.Ct. at 986. Defendants, however, assert that Plaintiffs termination was compelled" }, { "docid": "1796332", "title": "", "text": "Richard raises are irrelevant. Because Richard’s § 1983 claim merely serves as an instrument for evading Rooker-Feldman, that doctrine bars his claim. To state a claim under § 1983, a plaintiff must allege facts tending to show that the defendant has acted “under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Sullivan, 526 U.S. at 50, 119 S.Ct. 977 (internal quotations omitted). A plaintiff must show that the party charged with depriving the plaintiff of her federal right is an entity that can be fairly described as a state actor. Lugar, 457 U.S. at 937, 102 S.Ct. 2744. This Court has previously outlined the various tests that the Supreme Court employs to determine whether a private party has acted under color of state law. Bass v. Parkwood, 180 F.3d 234, 241-43 (5th Cir.1999) (applying the tests to hold that a private mental institution did not act under color of state law by committing the plaintiff). According to the public function test, a private entity acts under color of state law when the entity performs a function which is “exclusively reserved to the state.” Flagg Bros., 436 U.S. at 157-58, 98 S.Ct. 1729. (internal quotations omitted); Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.1989). The state compulsion (or coercion) test holds the state responsible “for a private decision only when [the state] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (internal quotations omitted). Similarly, the nexus or state action test finds state" }, { "docid": "1796331", "title": "", "text": "n. 16, 103 S.Ct. 1303. This Court has determined that issues are “inextricably intertwined” when a plaintiff casts a complaint in the form of a civil rights action simply to circumvent the Rooker-Feldman rule. Liedtke, 18 F.3d at 317. The Feldman holding appears to squarely fit Richard’s situation. The Cox court’s findings that allow for certification are “inextricably intertwined” with Richard’s constitutional challenge to the state’s compliance with due process requirements. A federal court cannot examine the due process deficiencies in Cox without disturbing the underlying judgment. Moreover, the Liedtke holding is also applicable here. In order to comply with Liedtke, a plaintiff cannot assert a § 1983 claim to circumvent the Rooker-Feldman doctrine. 18 F.3d at 317. However, as discussed below, Richard’s § 1983 claim is clearly untenable. His blatant nonconformity with the requirements of § 1983 thus suggests that he has merely cast his complaint in the form of a civil rights action in an attempt to circumvent Rooker-Feldman. Given that his underlying § 1983 argument fails, the class action procedural issues that Richard raises are irrelevant. Because Richard’s § 1983 claim merely serves as an instrument for evading Rooker-Feldman, that doctrine bars his claim. To state a claim under § 1983, a plaintiff must allege facts tending to show that the defendant has acted “under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Sullivan, 526 U.S. at 50, 119 S.Ct. 977 (internal quotations omitted). A plaintiff must show that the party charged with depriving the plaintiff of her federal right is an entity that can be fairly described as a state actor. Lugar, 457 U.S. at 937, 102 S.Ct. 2744. This Court has" } ]

[ { "docid": "3712989", "title": "", "text": "no previous disposition towards commission of the deed. Id. The initial burden of bringing to light some evidence of entrapment must be shouldered by the accused. See Kadis v. United States, 373 F.2d 370, 374 (1st Cir.1967). “A factual issue sufficient to require submission to a jury arises only if [the accused’s] evidence amount[s] to more than a mere scintilla.” Fera, 616 F.2d at 596. See also United States v. Luce, 726 F.2d 47, 49 (1st Cir.1984); Kadis, 373 F.2d at 373-74. Only if a defendant makes out a threshold showing that a government agent turned him from a righteous path to an iniquitous one does the government's obligation affirmatively to disprove entrapment mature. See United States v. Rodrigues, 433 F.2d 760, 761 (1st Cir.1970), cert. denied, 401 U.S. 943, 91 S.Ct. 950, 28 L.Ed.2d 224 (1971). As part and parcel of his entry-level burden, the defendant must adduce evidence tending fairly to show his unreadiness to commit the offense. United States v. Espinal, 757 F.2d 423, 425-26 (1st Cir. 1985); United States v. Kakley, 741 F.2d 1, 3 (1st Cir.), cert. denied, 469 U.S. 887, 105 S.Ct. 261, 83 L.Ed.2d 197 (1984); Fera, 616 F.2d at 596. None was forthcoming here. The record, even when viewed most hospitably to the appellant, indicates merely that Riccotti created a criminal opportunity by asking Coady to involve himself, and sweetened the pot with an offer of payment. The appellant, without more, leaped at the chance to participate. It is well settled that mere solicitation cannot be equated with entrapment, Espinal, 757 F.2d at 425, and that entrapment does not arise just because government agents resort to pretense. Fera, 616 F.2d at 596. Here, Coady — even if his story was to be believed— proved nothing beyond these (insufficient) facts. In sum, there was an utter absence of any evidence that the appellant was unprepared to commit the malefaction or that he was corrupted by any government agent. At most, law enforcement personnel furnished Coady with the occasion to perpetrate a crime which he was not otherwise undisposed to commit. He was, on" } ]

[ { "docid": "2006415", "title": "", "text": "at government instigation? Into this mix must, of course, be put the fact that certain serious crimes, “victimless” in the sense that no party wishes disclosure, cannot be effectively investigated without significant governmental involvement in illegal activities. See, e.g., Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring); United States v. Porter, 764 F.2d 1, 8 (1st Cir.1985). The tension among these various concerns is reflected in the complexity of the courts’ analyses of the entrapment question. With respect to the entrapment defense per se, the focus is clearly on “ ‘the intent or predisposition of the defendant to commit the crime.’ ” Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976) (plurality opinion) (quoting United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973)). Only after the defendant has made a threshold showing that “a government agent turned him from a righteous path to an iniquitous one” does the burden of disproving entrapment shift to the government. United States v. Coady, 809 F.2d 119, 122 (1st Cir.1987). To this there is one exception. Even a willing defendant may claim a violation of due process if the government’s conduct has reached a “ ‘demonstrable level of outrageousness.’ ” United States v. Porter, ante (collecting cases and quoting Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring)). Mainly these cases involve alleged overinvolvement on the government’s part in manufacturing the crime. E.g., Hampton, ante; United States v. Twigg, 588 F.2d 373 (3d Cir.1978). Even here, a defendant may be barred from claiming outrageousness if he has been too active himself. See United States v. Arteaga, 807 F.2d 424, 427 (5th Cir.1986). But, of course, outrageous conduct may take other forms, and might well be found in a threat of serious physical harm. No such threat, however, was directed to John Bradley, and he has no claim. Bradley argues, whether with" }, { "docid": "17991850", "title": "", "text": "Therefore, we will not review the court’s discretionary decision. D. Defendant White’s Claims 1. Entrapment The entrapment defense protects “an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law.” Jacobson v. United States, 503 U.S. 540, 553-54, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). As we have previously noted: “Entrapment is called a defense, but it is settled that once the defendant has made a threshold showing, the burden shifts to the government to prove beyond a reasonable doubt either that there was no undue government pressure or trickery or that the defendant was predisposed.” United States v. Acosta, 67 F.3d 334, 338 (1st Cir.1995). Since this is a disjunctive test, the entrapment defense fails if the government can prove beyond a reasonable doubt either that 1) it did not improperly induce the illegal activity or 2) the defendant was otherwise predisposed. See, e.g., Mathews v. United States, 485 U.S. 58, 62-63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); United States v. Gendron, 18 F.3d 955, 961 (1st Cir.1994). White claims that there was insufficient evidence to prove either the absence of improper inducement or predisposition. We disagree with both contentions. Given the disjunctive nature of the test, we can fulfill our appellate function by elaborating our disagreement on either inducement or predisposition. We choose to focus on inducement. As we held in Gendron, inducement means more than simply organizing a “sting” operation and giving the defendant the opportunity to commit a crime. Gendron, 18 F.3d at 961. See also United States v. Gifford, 17 F.3d 462, 468 (1st Cir.1994) (“Neither mere solicitation nor the creation of opportunities to commit an offense comprises inducement as that term is used in the entrapment jurisprudence.”). “An ‘inducement’ consists of an ‘opportunity’ plus something else — typically, excessive pressure by the government upon the defendant or the government’s taking advantage of an alternative, non-criminal type of motive.” Gendron, 18 F.3d at 961. White claims that Weeks, the police informant, used excessive pressure to force him to sell drugs. He claims that Weeks repeatedly" }, { "docid": "22165112", "title": "", "text": "are not in serious dispute. The parameters of the entrapment defense are largely to be found from the four principal cases in which the defense has been considered by the Supreme Court, Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); and Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). In Sorrells v. United States, where the Court first recognized the defense of entrapment, the Court held the defendant was entitled to have the jury consider whether his acts of possessing and selling one-half gallon of whiskey in violation of thé National Prohibition Act were instigated by the prohibition agent who implanted in the “mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that [Government officials] may prosecute.” 287 U.S. at 442, 53 S.Ct. at 212. The nature of the defense was outlined more fully when the Court next considered the defense a quarter of a century later in Sherman v. United States. Chief Justice Warren, writing for the majority of the Court, stated that “[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” 356 U.S. at 372, 78 S.Ct. at 820. In concluding that entrapment had been established as a matter of law, the Court determined from the undisputed testimony of the prosecution’s witnesses that the defendant was induced to sell narcotics by the government informer and that he was not predisposed, i.e., that he engaged in conduct he would not otherwise have attempted. The Court noted, “Entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials.” Id. (emphasis in original). In United States v. Russell, the Court expressly disapproved of the decisions of the lower federal courts which had expanded the entrapment defense beyond the Court’s" }, { "docid": "23601723", "title": "", "text": "his car was broken down. Fischel reluctantly agreed to do so. On the way to their destination, Ludwig informed Fischel that the purpose of the venture was to complete a sale of cocaine. He described to Fischel the terms of the sale and the quantity of cocaine involved. Fischel had no desire to participate in the transaction, but gave Ludwig a ride because he felt sorry for him. On arriving at the Chariot Inn, Fischel responded to Officer Schmidt’s questions only because he knew the answers. Fischel testified that he was simply playing a prac tieal joke and was lying when he asserted that he had access to four pounds of cocaine. On the witness stand, Fischel categorically denied having control over the cocaine, the right to sell it, or knowledge of its sources. Fisehel’s story does not fit into the theory of entrapment. The essence of the entrapment defense is that a defendant should not be convicted for having committed a crime, without predisposition, only because of the government’s creative activity in inducing the crime. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Anderton, 629 F.2d 1044 (5th Cir. 1980). See also Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) “[W]hen the criminal design originates with the officials of the government, and they implant within the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute,” the entrapment defense bars conviction. Sherman v. United States, 356 U.S. at 372, 78 S.Ct. at 820-21; United States v. Anderton, 629 F.2d at 1046. Fischel argues that he was entrapped because of the following chain of circumstances: (1) The government had set up an undercover drug operation. (2) Jim Marlin, a government agent, induced Ludwig to recruit other drug buyers. (3) Ludwig became the government’s unwitting pawn" }, { "docid": "2006414", "title": "", "text": "F.2d 1158, 1168 (2d Cir.1980) (2-1 decision), post. Both answers are simplistic, and are best viewed after an analysis of the reasons why entrapment is recognized as a defense. On so doing it is readily apparent that the basic components may be as diverse as Bradley’s and the government’s contentions suggest. In part this is because there are practicalities as well as what might be termed ethical principles. We start with a given: The defendant would not have committed this particular crime had it not been for the government activity. It is offensive that the government should turn law-abiding citizens into criminals. At the same time, the defendant did commit a crime and, depending upon the degree of the inducement, his character fell short of what is socially mandated. Most crimes are the result of an inducement of one sort or another; from Adam onward temptation has not been a per se excuse. Is what is peculiarly repugnant about entrapment the government agent’s own conduct, or that an apparently innocent citizen has become a criminal at government instigation? Into this mix must, of course, be put the fact that certain serious crimes, “victimless” in the sense that no party wishes disclosure, cannot be effectively investigated without significant governmental involvement in illegal activities. See, e.g., Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring); United States v. Porter, 764 F.2d 1, 8 (1st Cir.1985). The tension among these various concerns is reflected in the complexity of the courts’ analyses of the entrapment question. With respect to the entrapment defense per se, the focus is clearly on “ ‘the intent or predisposition of the defendant to commit the crime.’ ” Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976) (plurality opinion) (quoting United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973)). Only after the defendant has made a threshold showing that “a government agent turned him from a righteous path to an iniquitous one”" }, { "docid": "1078431", "title": "", "text": "but instead in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense but was induced to commit them by the Government. Sorrells [v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) ] and Sherman [v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) ] both recognize “that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,” 287 U.S., at 441, 53 S.Ct., at 212; 356 U.S., at 372, 78 S.Ct., at 820-21. Nor will the mere fact of deceit defeat a prosecution, see, e.g., Lewis v. United States, 385 U.S. 206, 208-209, 87 S.Ct. 424, 425-26, 17 L.Ed.2d 312 (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play. United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 1644-45, 36 L.Ed.2d 366 (1973). The office of the entrapment defense is to draw the line “between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman v. United States, supra at 372, 78 S.Ct. 820-26. Where the issue of entrapment is raised by the evidence, “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson v. United States, — U.S. —, —, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992). To facilitate that determination, the defendant “may examine the conduct of the government agent.” Sherman v. United States, supra at 373, 78 S.Ct. at 821. “[0]n the other hand, the accused will be subjected to an appropriate and searching inquiry into his own conduct and predisposition’ as bearing on his claim of innocence.” Id., quoting Sorrells v. United States, supra at 451, 53 S.Ct. at 216. The" }, { "docid": "22165180", "title": "", "text": "public disapproval and to measure an unpopular cause against the highest ideals and aspirations of the time. The rights conferred upon our society by judges of the Third Article emanated from cases in which the defendants were unpopular and generally regarded as transgressors — Dollree Mapp, Danny Escobedo, and Ernesto Miranda quickly come to mind. In each case, a court, not a jury, drew the line of demarcation between permissible and impermissible police conduct to insure that enforcers of society’s laws would not violate established moral frontiers while exercising their stewardship; it was federal judges, unmindful of editorials and broadcast plaudits, who chose to stand tall and unbending. Like District Judge John P. Fullam, those federal judges were unwilling to relegate the formulation of these protections to the “coquetry of public opinion, which has her caprices” in the jury room. II. Let me clear the air as to what I perceive case law to regard as legitimate and, therefore, permissible, undercover police work, and that which goes beyond the pale. In the permissible category I put all undercover activity that searches out contemplated or ongoing criminal conduct and even results in actual participation in the illegal enterprise. In this same category I would justify an agent’s inducement of others to engage in crime, so long as there is proof of predisposition by the others to participate in the illegal activity. Where, as here, there is absolutely no proof that the defendants had any disposition to commit an illegal act but for the government’s inducement, however, then the government’s actions are impermissible, and the defense of entrapment is available as a matter of law — and it is for a judge and not a jury to blow the whistle on the improper conduct. The entrapment defense thus implicates two interrelated but discrete elements: inducement and predisposition. See Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v." }, { "docid": "18626137", "title": "", "text": "new element into the entrapment doctrine alters both the doctrine and the policy concerns identified by the Supreme Court as animating that doctrine. In Russell, Justice Rehnquist explained that, from the Court’s first recognition of the entrapment doctrine in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), “the thrust of the entrapment defense was held to focus on the intent or predisposition of the defendant to commit the crime.” Russell, 411 U.S. at 429, 93 S.Ct. at 1641 (emphasis added). “Predisposition, ‘the principal element in the defense of entrapment,’ Russell, [411 U.S.] at 433, [93 S.Ct. at 1643], focuses upon whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.” Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (quoting Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958); Russell, 411 U.S. at 436, 93 S.Ct. at 1645). That determination is based upon the intent of the defendant. A defendant is protected by that defense “[i]f the result of the governmental activity is to ‘implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission.’ ” Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (quoting Sorrells, 287 U.S. at 442, 53 S.Ct. at 212-13). Because predisposition concerns the defendant’s state of mind at the time of the government inducement, it is usually an issue of fact for the trier of fact to decide. Mathews, 485 U.S. at 63, 108 S.Ct. at 886-87. The “readiness” of the defendant has an established role in the determination of whether a defendant is predisposed to commit an offense. It is circumstantial evidence that is relevant and probative evidence of whether the defendant was in fact predisposed to commit the offense. Indeed, the classic formulation of the predisposition factor, in the opinion of Judge Learned Hand in United States v. Sherman, 200 F.2d 880 (2d Cir.1952), treats" }, { "docid": "23601724", "title": "", "text": "crime. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Anderton, 629 F.2d 1044 (5th Cir. 1980). See also Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) “[W]hen the criminal design originates with the officials of the government, and they implant within the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute,” the entrapment defense bars conviction. Sherman v. United States, 356 U.S. at 372, 78 S.Ct. at 820-21; United States v. Anderton, 629 F.2d at 1046. Fischel argues that he was entrapped because of the following chain of circumstances: (1) The government had set up an undercover drug operation. (2) Jim Marlin, a government agent, induced Ludwig to recruit other drug buyers. (3) Ludwig became the government’s unwitting pawn in luring victims to the trap. (4) Fischel, without predisposition to commit a crime, fell into the trap only because he was induced by his feelings of pity for Ludwig. Fischel argues that trial evidence supported each link in this chain and required the judge to allow the jury to consider his entrapment offense. We recently articulated the burden of production on a defendant seeking an entrapment instruction. In this circuit, before the judge must instruct the jury on entrapment, a defendant must show (1) lack of predisposition to commit the crime and (2) some governmental involvement and inducement more than just providing the opportunity or facilities to commit the crime. United States v. Leon, 679 F.2d 534, 538 (5th Cir. 1982) (emphasis in original). See also United States v. Anderton, 679 F.2d 1199, 1201 (5th Cir. 1982); United States v. Andrew, 666 F.2d 915, 922-23 (5th Cir. 1982). Moreover, to raise an entrapment defense the defendant must admit commission of the acts that are the subject of prosecution. United States v. Nicoll, 664 F.2d" }, { "docid": "6735907", "title": "", "text": "in criminal enterprises. . . The appropriate object of this permitted activity, frequently es sential to the enforcement of the law, is to reveal the criminal design; . A different question is presented when a criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they prosecute. Sorrells v. United States, 287 U.S. 435, 441-42, 53 S.Ct. 210, 212-13, 77 L.Ed. 413 (1932). The Court has on several occasions reaffirmed this subjective focus on the defendant’s predisposition to commit the crime as the essential element of the entrapment defense. See, e. g., Hampton, supra; United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The determination of where a criminal intent originates, however, is at times difficult, particularly when the Government takes an active role in cultivating the opportunities in which the defendant’s criminal intent is allowed to gestate. As Chief Justice Warren stated in Sherman, supra, 356 U.S. at 372, 78 S.Ct. at 821, “a line must be drawn between the trap for the unwary innocent and a trap for the unwary criminal.” In Sherman, the Court reversed a narcotics conviction because a government informant had persuaded the defendant, who had been attempting to avoid narcotics, to obtain for him a source of drugs. The Court in overturning the conviction stated: “[T]he Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted. Law enforcement does not require methods such as this.” Id. at 376, 78 S.Ct. at 822. We must accordingly consider whether Bocra possessed an independent criminal disposition to bribe Lemp or whether Lemp in fact induced Bocra to make a bribe he otherwise would not have made. The evidence was highly disputed at trial. Lemp’s version of the facts was" }, { "docid": "11558281", "title": "", "text": "never intended that his conduct be punished. Sorrells v. U.S., 287 U.S. 435, 52 S.Ct. 210, 77 L.Ed. 413 (1932); U.S. v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). “Objective” entrapment is a term applied to either of two different concepts. Under one view of “objective” entrapment the focus is not upon the propensities and predispositions of the individual defendant, but instead upon an objective standard of “persons who would normally avoid crime and through self-struggle resist ordinary temptations”, Sherman v. U.S., 356 U.S. 369, 384, 78 S.Ct. 819, 826, 2 L.Ed.2d 848 (Frankfurter, J., concurring), in order to determine whether the inducement tendered by the government agent was unacceptable. The second view of “objective” entrapment focuses upon the conduct of the government agents in each particular case to determine whether that conduct “falls below standards, to which common feelings respond, for the proper use of governmental power”. U.S. v. Russell, 411 U.S. at 441, 93 S.Ct. at 1647 (Stewart, J., dissenting). However, and despite eloquent arguments in several dissenting and concurring opinions, Sorrells, 287 U.S. 435, 52 S.Ct. 210, 77 L.Ed. 413; Sherman, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; and Hampton, 425 U.S. 484, 486, 96 S.Ct. 1646, 1648, 48 L.Ed.2d 113 the “objective” approach to entrapment has never been accepted by any majority of the Supreme Court. Some confusion has arisen because “objective” entrapment, the view that over-involvement of the government in the commission of a crime requires dismissal of an indictment, has also been called “entrapment as a matter of law”. Further semantic confusion has arisen, however, because the term “entrapment as a matter of law” has also been applied to a situation where, on the evidence presented, no jury could find beyond a reasonable doubt, that the defendant was predisposed to commit the crime that was induced by the government agents. Sherman v. U.S., 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; see U.S. v. Jannotti, 501 F.Supp. at 1200. Under that view, “entrapment as a matter of" }, { "docid": "23665010", "title": "", "text": "sales). Alternatively, the government argues that even if there was sufficient evidence to charge the jury on the affirmative defense of entrapment, the instruction given correctly stated the law and in no way prejudiced substantial rights of defendant. A. Raising the Defense “Entrapment occurs ‘when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ ” United States v. Buckley, 586 F.2d 498, 501 (5th Cir. 1978), cert. denied, - U.S.--, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979), quoting Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 213, 77 L.Ed. 413 (1932). See generally Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (defense of entrapment not available where defendant concedes a predisposition to commit the crime in question); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (no entrapment as a matter of constitutional or statutory law where government agent provided defendant with essential and difficult-to-obtain ingredient for manufacture of methamphetamine); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (entrapment established as a matter of law where government informer made repeated requests of defendant to obtain narcotics, and defendant capitulated, after initial refusals, only when informer resorted to sympathy). Where the defense of entrapment is at issue the court’s analysis is bifurcated, dealing with two factual questions. [1] n such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it. United States v. Benavidez, 558 F.2d 308, 310 (5th Cir. 1977), quoting United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir. 1952) (Hand, J.). Accord Pierce v. United States, 414 F.2d 163, 166" }, { "docid": "23512404", "title": "", "text": "government to rebut his claim of “inducement,” nor was it sufficient to show (beyond a reasonable doubt) his “predisposition” to commit the crime. Consequently, he says, particularly in light of a recent Supreme Court case that accepted rather similar arguments, Jacobson v. United States, — U.S. -, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the law requires a judgment of acquittal. It may help in evaluating Gendron’s argument if we set forth in simplified terms our understanding of the entrapment defense and its elements. (For more comprehensive accounts, see, e.g., Rodriguez, supra; S.Rep. No. 307, 97th Cong., 1st Sess. 118-30 (1981); LaFave & Scott, Substantive Criminal Law § 5.2 (1986); Louis M. Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 1981 Sup.Ct.Rev. 111.) The Supreme Court has described that defense as resting upon an assumption that Congress, when enacting criminal statutes, does not intend the statute to apply to violations arising out of (1) the government’s “abuse” of its crime “detection” and law “enforcement” efforts by “instigati[ng]” the criminal behavior and “lur[ing]” to commit the crime (2) persons who are “otherwise innocent.” Sorrells v. United States, 287 U.S. 435, 448, 53 S.Ct. 210, 215, 77 L.Ed. 413 (1932) (emphasis added). Consequently, the entrapment doctrine forbids punishment of an “otherwise innocent” person whose “alleged offense” is “the product of the creative activity” of government officials. Id. at 451, 53 S.Ct. at 215 (emphasis added). As the Supreme Court has recently stated, When the Government’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene. Jacobson, — U.S. at -, 112 S.Ct. at 1543 (emphasis added). Since the Court has repeatedly expressed concern about both government “abuse” of its enforcement powers (or the like) and the “otherwise law-abiding citizen” (or the like), it is not surprising that the defense has two parts, one that focuses upon government “inducement” and the other upon the defendant’s “predisposition.” In describing “inducement,” courts have distinguished between proper and improper law enforcement activities." }, { "docid": "20360913", "title": "", "text": "of predisposition on the part of the defendant to engage in the criminal conduct.” United States v. Ellis, 23 F.3d 1268, 1271 (7th Cir.1994) (citing Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988)). The Supreme Court has described the defense of entrapment as follows: In their' zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Sorrells v. United States, 287 U.S. 435, 442 [53 S.Ct. 210, 213, 77 L.Ed. 413] (1932); Sherman v. United States, 356 U.S. 369, 372 [78 S.Ct. 819, 820-21, 2 L.Ed.2d 848] (1958). Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. United States v. Whoie, 925 F.2d 1481, 1483-84 (D.C.Cir.1991). Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell the drugs, and, if the offer is accepted, make an arrest on the spot or later. Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 1540-41, 118 L.Ed.2d 174 (1992) (emphasis added). Thus the government must prove that a defendant “was predisposed to violate the law before the Government intervened.” Id. at 549 n. 2, 112 S.Ct. at 1541 n. 2. Accordingly, the district court gave the jury the following instruction: One of the issues in this case is whether the defendant has been entrapped. A defendant who has been entrapped must be found not guilty. If the defendant had no prior intent or disposition to commit the offense charged and was induced or persuaded to do so by law enforcement officers or their agents, then she was entrapped. If, however, the defendant had a prior intent or predisposition to commit the offense" }, { "docid": "2582974", "title": "", "text": "Again, of course, we point out that our review of this challenge to evidentiary sufficiency is a very limited one. The Government entraps a defendant and precludes conviction when its agents prevail upon and induce him to commit a crime which he had no predisposition to commit. See generally United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Although there remains room for a due process challenge to outrageous Government conduct instigating an offense, Russell, supra, 411 U.S. at 431-32, 93 S.Ct. 1637; Hampton v. United States, 425 U.S. 484, 491-95, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (Powell, J., concurring), “entrapment” as a defense “is not of a constitutional dimension.” Russell, supra, 411 U.S. at 433, 93 S.Ct. at 1643. Given the existence of Government inducement (which raises the question, but which does not itself foreclose prosecution, see Sherman, supra, 356 U.S. at 372, 78 S.Ct. 819; Sorrells, supra, 287 U.S. at 441, 53 S.Ct. 210) inquiry about entrapment, as “definitively construed” in Russell, is “focused on the question of predisposition.” Hampton, supra, 425 U.S. at 492, 96 S.Ct. at 1651 n. 2 (Powell, J., concurring); id. at 488-89 (opinion of the Court plurality). The line to be drawn is that “between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman, supra, 356 U.S. at 372, 78 S.Ct. at 821. Under these principles, we have no difficulty agreeing with appellant that his testimony raised the question of entrapment. He testified that he had never dealt in drugs before the incidents in question here, that he had a clean record without criminal involvement, that he was a hard working man attempting to support his family in Mexico but was at the pertinent times unemployed and desperate for money, that he initially refused to cooperate with Hernandez in the latter’s search for drugs, and that only after two personal visits and four telephone" }, { "docid": "19989036", "title": "", "text": "States, 296 F.2d 512, 517 (1st Cir. 1961). . But see Sherman v. United States, 356 U.S. 369, 380, 78 S.Ct. 819, 824, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring in result): Sorrells v. United States, 287 U.S. 435, 458, 53 S.Ct. 210, 218, 77 L.Ed. 413 (Roberts, J.). . Since the defense of entrapment was first recognized in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); see note 1 supra, the Court has been split on whether the focus of the inquiry should be on defendant’s predisposition or on the conduct of the government agent. A majority of the court in both Sorrells and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), appeared to subscribe to what Justice Stewart has called the “subjective” approach, United States v. Russell, 411 U.S. 423, 440, 93 S.Ct. 1637, 1646-1647, 36 L.Ed.2d 366 (1973) (Stewart, J., dissenting). The subjective approach focuses on the predisposition of the defendant. Therefore, regardless of the government’s level of involvement in the crime, the defense is not available unless the defendant was not predisposed to commit the crime charged. Whether this is an accurate reading of the majority opinions in Sorrells or Sherman is unimportant, for the Court’s opinion in Russell holds that predisposition is the key: This Court’s opinions in Sorrells v. United States, supra and Sherman v. United States, supra, held that the principal element in the defense of entrapment was the defendant’s predisposition to commit the crime.... We decline to overrule these cases. 411 U.S. at 443, 93 S.Ct. at 1648; accord, Hampton v. United States, 425 U.S 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976) (Rehnquist, J.). A minority of the Justices have expressed a preference for the “objective” approach, which focuses on the government’s conduct. Their position was summed up by Justice Stewart, dissenting in Russell: (T]he question is whether — regardless of the predisposition to crime of the particular defendant involved — the governmental agents have acted in such a way as is likely to instigate or create" }, { "docid": "11558294", "title": "", "text": "“sting” operation, which presented to defendants a false and fictitious but convincing “scenario” of a wealthy sheik willing to pay cash for promises of assistance in his immigration to the United States. Defendants argue that this scenario induced them to participate in criminal events they otherwise would not have engaged in, simply because absent the government’s actions they would not have had the opportunity to do so — at least with this sheik. The central defect in defendants’ argument is that it simply does not represent the law as established by the United States Supreme Court. As noted in the “general discussion”, section V, supra, eloquent dissents have urged that objective entrapment be adopted as a constitutional principle so that whenever a government agent provided the impetus for a crime, prosecution would be barred. If that were the law, clearly these convictions would have to be dismissed; indeed, if that were the law, these prosecutions would never have been brought. However, and as already noted, whenever the dissenting or concurring justices on the Supreme Court have urged objective entrapment as a principle of constitutional law or as a basis for invoking the supervisory power, see Hampton, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113; Sorrells, 287 U.S. 435, 52 S.Ct. 210, 77 L.Ed. 413; Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; and Sherman, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, the majority has rejected the concept. Thus, except for the possible availability of an “outrageous governmental conduct” argument, discussed below, defendants’ entrapment claims in these cases are restricted to principles of subjective entrapment, where the creative activity of the government entraps into criminal conduct a defendant who was not predisposed to commit the crime. As already noted, the focus of this defense is upon whether the defendant was predisposed to commit the crime. Predisposition is generally a question of fact to be determined by the jury. Of all the defendants before the court in these three cases, only defendant Lederer requested that the issue of entrapment be submitted to the jury, and, of course," }, { "docid": "22165181", "title": "", "text": "put all undercover activity that searches out contemplated or ongoing criminal conduct and even results in actual participation in the illegal enterprise. In this same category I would justify an agent’s inducement of others to engage in crime, so long as there is proof of predisposition by the others to participate in the illegal activity. Where, as here, there is absolutely no proof that the defendants had any disposition to commit an illegal act but for the government’s inducement, however, then the government’s actions are impermissible, and the defense of entrapment is available as a matter of law — and it is for a judge and not a jury to blow the whistle on the improper conduct. The entrapment defense thus implicates two interrelated but discrete elements: inducement and predisposition. See Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Entrapment is a “relatively limited defense,” Russell, 411 U.S. at 435, 93 S.Ct. at 1644 that “focus[es] on the intent or predisposition of the defendant to commit the crime.” Id. at 429, 93 S.Ct. at 1641. When the entrapment issue is joined, the burden is on the government “to disprove the whole defense beyond a reasonable doubt.” United States v. Watson, 489 F.2d 504, 510 (3d Cir. 1973); see Government of the Virgin Islands v. Cruz, 478 F.2d 712, 717 & n.5 (3d Cir. 1973). The defense is a matter of statutory interpretation, rooted in the notion that Congress does not intend to punish a defendant who has committed all the elements of a proscribed offense if he was induced to commit them by the government. Russell, 411 U.S. at 433-35, 93 S.Ct. at 1643-44; Sorrells, 287 U.S. at 445-51, 53 S.Ct. at 214-16. The prosecution is not defeated by proof that the government has participated in deceit or merely provided an opportunity" }, { "docid": "23512406", "title": "", "text": "It is proper (i.e., not an “inducement”) for the government to use a “sting,” at least where it amounts to providing a defendant with an “opportunity” to commit a crime. E.g., Sorrells, 287 U.S. at 441, 53 S.Ct. at 212; Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958); United States v. Coady, 809 F.2d 119, 122 (1st Cir.1987); United States v. Espinal, 757 F.2d 423, 425 (1st Cir.1985). Without this kind of law enforcement weapon, it would often prove difficult, or impossible, to stop certain seriously criminal activity, particularly activity involving drugs, or corruption, or other crimes in which no direct participant wants the crime detected. See Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring in judgment); United States v. Bradley, 820 F.2d 3, 6 (1st Cir.1987). An improper “inducement,” however, goes beyond providing an ordinary “opportunity to commit a crime.” Jacobson, — U.S. at -, 112 S.Ct. at 1541. An “inducement” consists of an “opportunity” plus something else — typically, excessive pressure by the government upon the defendant or the government’s taking advantage of an alternative, non-criminal type of motive. A “sting” that combines an ordinary opportunity with these extra elements runs the risk of catching in the law enforcement net not only those who might well have committed the crime elsewhere (in the absence of the sting), but also those who (in its absence) likely would never have done so. Insofar as the net catches the latter, it stretches beyond its basic law enforcement purpose. Some examples of improper “inducement” may help. Courts have found a basis for sending the entrapment issue to the jury (or finding entrapment established as a matter of law) where government officials: (1) used “intimidation” and “threats” against a defendant’s family, United States v. Becerra, 992 F.2d 960, 963 (9th Cir.1993); (2) caked every day, “began threatening” the defendant, and were belligerent, United States v. Groll, 992 F.2d 755, 759 (7th Cir.1993); (3) engaged in “forceful” solicitation and “dogged insistence" }, { "docid": "23512405", "title": "", "text": "commit the crime (2) persons who are “otherwise innocent.” Sorrells v. United States, 287 U.S. 435, 448, 53 S.Ct. 210, 215, 77 L.Ed. 413 (1932) (emphasis added). Consequently, the entrapment doctrine forbids punishment of an “otherwise innocent” person whose “alleged offense” is “the product of the creative activity” of government officials. Id. at 451, 53 S.Ct. at 215 (emphasis added). As the Supreme Court has recently stated, When the Government’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene. Jacobson, — U.S. at -, 112 S.Ct. at 1543 (emphasis added). Since the Court has repeatedly expressed concern about both government “abuse” of its enforcement powers (or the like) and the “otherwise law-abiding citizen” (or the like), it is not surprising that the defense has two parts, one that focuses upon government “inducement” and the other upon the defendant’s “predisposition.” In describing “inducement,” courts have distinguished between proper and improper law enforcement activities. It is proper (i.e., not an “inducement”) for the government to use a “sting,” at least where it amounts to providing a defendant with an “opportunity” to commit a crime. E.g., Sorrells, 287 U.S. at 441, 53 S.Ct. at 212; Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958); United States v. Coady, 809 F.2d 119, 122 (1st Cir.1987); United States v. Espinal, 757 F.2d 423, 425 (1st Cir.1985). Without this kind of law enforcement weapon, it would often prove difficult, or impossible, to stop certain seriously criminal activity, particularly activity involving drugs, or corruption, or other crimes in which no direct participant wants the crime detected. See Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring in judgment); United States v. Bradley, 820 F.2d 3, 6 (1st Cir.1987). An improper “inducement,” however, goes beyond providing an ordinary “opportunity to commit a crime.” Jacobson, — U.S. at -, 112 S.Ct. at 1541. An “inducement”" } ]

[ { "docid": "18588427", "title": "", "text": "610, 4 Mont.B.R. 414, 418 (Bankr.D.Mont.1987), which held: “In this case, evidence of the debtor, which I find credible, shows the prevailing rate is 9% on 20 year contracts for deed, with interest rates on commercial loans fixed at 2% over prime at 8¥t%.” In a subsequent case, In re Martin, 78 B.R. 598, — Mont.B.R. — (Bankr.D.Mont.1987), the Court concluded from the evidence that a 20 year term was not reflective of market unless structured on a 20 year payment with a ten year balloon payment. In this case, I find from the evidence that a 20 year loan is available on the open market from a commercial lender when the debt is less than 60% of the value of the collateral. See also, In re Martin (Heart L Ranch), 66 B.R. 921 (Bankr.D.Mont.1986) (debt secured by agricultural land may be extended over 20 years). I note the first mortgage holder FLB has a 35 year term on its loan. I conclude the rate of interest proposed in the Modified Plan of 10%% is fair market rate of interest and the term of repayment over 20 years is likewise reasonable. I further conclude, based on the Debtor’s projection of income and expenses, that the Plan is feasible, and all payments proposed to be made under the Plan can be so made. IT IS ORDERED: (1) The Debtor’s Amended Chapter 12 Plan is confirmed; (2) The Debtor shall pay to the Trustee all sums provided in the Plan, at the time provided; (3) The value of collateral securing debts due holders of secured claims is fixed at the values stated in the Plan; (4) Upon completion of the Plan according to its final terms, all judgments and U.C.C. filings shall be satisfied; and (5) The life of this Plan is three years." } ]

[ { "docid": "18160086", "title": "", "text": "less-than-literal interpretation of § 1225(a)(5)(B)(i) is impermissible because the concept of adequate protection may not be used in deciding whether a reorganization plan should be confirmed. We find no merit in this contention. The confirmation requirements of § 1225(a) implicitly embody the concept of adequate protection for a secured creditor’s claim. See also Farm Bankruptcy Guide ¶ 4.08[2][b], at 4-95 (“debtor’s good faith obligation, and perhaps constitutional considerations as well, will require that the creditor’s interest in its collateral be protected at all times during the plan repayment period”). The lien retention requirement'itself is not met if payments under the plan to reduce the principal amount of the claim will not keep pace with the depreciation of the lien collateral. In re Borg, 88 B.R. 288, 292 (Bankr.D.Mont.1988). In addition, the requirement of adequate protection is also contained in § 1225(a)(5)(B)(ii) and § 1225(a)(6), which require that the secured creditor receive payments under the plan at least equal to the present value of its claim and that the debtor will be able to make all those payments. In re Adam, 92 B.R. 732, 735 (Bankr.E.D.Mich.1988). C. Measured against the interpretation we have adopted, the debtors’ plan in this case falls short of meeting Chapter 12’s lien retention requirement. Rather than providing that the bank retain a lien on the herd sufficient to adequately protect its secured claim, the plan replaces the bank’s entire equity cushion in the herd with a second mortgage on agricultural land encumbered by a first mortgage in excess of $400,000. Such a provision does not satisfy § 1225(a)(5)(B)(i). The mortgage granted the bank is much less liquid and carries with it different risks than a lien on cattle, for which the bank had bargained. The debtors’ plan denies the bank too much of the benefit of that bargain. We recognize that an interpretation of § 1225(a)(5)(B)(i) which permits the debtor to replace a creditor’s lien on livestock with a lien on any type of collateral, no matter how illiquid or encumbered, would give livestock operations an even greater chance of obtaining confirmation of a Chapter 12" }, { "docid": "14779561", "title": "", "text": "be paid on December 31, 1988. The annual payment for the subsequent twenty-four years will be $31,142.37. Section 1225(a)(5)(B)(ii) provides that the court shall confirm a plan, with regard to secured claims, if the plan provides that “the value, as of the effective date of the plan, of property to be distributed by ... the debtor under the plan on account of such claim is not less than the allowed amount of such claim.” The United States Court of Appeals for the Eighth Circuit has concluded that the appropriate interest rate to provide a creditor with the present value of their claim is the “ ‘prevailing rate’ for a loan with a term equal to the payout period in the particular case, with due consideration to the existence and quality of any security and the risk of subsequent default.” United States v. Neal Pharmacal Co., 789 F.2d 1283, 1289 (8th Cir.1986). See also, In re Monnier Bros., 755 F.2d 1336, 1339 (8th Cir.1985). The best evidence of what an appropriate interest rate-ought to be is what a similar new loan to a debtor in similar circumstances would cost in the financial marketplace. In re Claeys, 81 B.R. 985, 993 (Bankr.D.N. D.1987); In re Konzak, 78 B.R. 990, 992 (Bankr.D.N.D.1987); In re Rott, 73 B.R. 366, 374 (Bankr. D.N.D.1987). Aetna introduced the testimony of Michael Hall, an accountant employed with a Denver mortgage corporation specializing in agricultural loans. Hall testified that in the current market an agricultural loan amortized over twenty-five years carries an interest rate of 11¼% if it has a five-year balloon payment. He noted that the longer the period of time for which an interest rate is fixed, the greater the risk to the bank and consequently the higher the rate of interest required. In Hall’s opinion the rate of interest the Rotts would be charged in the open market for a twenty-five year amortization with no balloon payment on agricultural real estate would be 11% to 12%. The Debtors introduced the testimony of Garland Weidrich, a farm consultant and employee of the Union Bank in Halliday, North" }, { "docid": "4769867", "title": "", "text": "date of the plan, recognizing the time-value of money. H.R. No. 95-595, 95th Congress, 1st Session, reprinted in 2 App. Collier On Bankruptcy (15th Ed.1988). Thus if the proponent of the plan attempts to cram down a class of secured creditors by making deferred cash payments under § 1129(b)(2)(A)(i)(II), the Court is required, inter alia, to value the future cash stream by establishing the present value of the deferred payments provided for under the plan. The Debtor asserts that payment to Freddie Mac of the ACDCI in the manner prescribed by the Plan produces the same result as if the money were paid to Freddie Mac immediately upon confirmation. So long as the treatment provided to the secured creditors meets the present value test, the Debtor argues, it makes no economic (monetary) difference whether interest (at 10% per annum) is paid annually or capitalized and paid on December 1, 1999. The Debtor relies on the following cases in support of its position: In re Pikes Peak Water Company, 779 F.2d 1456 (10th Cir. 1985); In re Parker, 46 B.R. 106 (Bankr.N.D.Ga.1985); In re Fowler, 83 B.R. 39 (Bankr.D.Mont.1987); In re Big Hook Land and Cattle Company, 81 B.R. 1001 (Bankr.D.Mont.1988). These cases, however, are distinguishable. In Pikes Peak, a case decided under Chapter 11, the Court addressed the issue of confirmation pursuant to § 1129(b)(2)(A)(iii). This subsection is not at issue in the instant case. Likewise, in Fowler, the Court did not have before it the issue of deferred interest. In Big Hook, another Chapter 12 case, the Court held that negative amortization satisfied the requirements of § 1225(a)(5) of the Code. Such a determination, however, was not disputed by Freddie Mac. Finally, the Debtor cites In re Parker, a case decided under Chapter 13. In Parker the Court addressed the issue of whether the negative amortization aspect of a note rendered the lender’s security interest inadequately protected. This is not the issue before the Court today. Thus the cases presented by the Debtor in support of its position are unpersuasive. In addition to relying on the aforementioned cases, the" }, { "docid": "1160933", "title": "", "text": "can make the payments over the life of the plan pursuant to § 1225(a)(6), the plan is confirmable and can be “crammed down” over the objections of a secured creditor regardless of its normal lending practices and policies or the terms and conditions of the required loan instruments. See In re White, 36 B.R. 199, 203 (Bankr.D.Kan.1983), citing, In re Benson, 9 B.R. 854 (Bankr.N.D.Ill.1981), In re Hollanger, 15 B.R. 35 (Bankr.W.D.La.1981), and Wachovia Bank and Trust Co. v. Harris, 455 F.2d 841 (4th Cir.1972). See also, In re O’Farrell, 74 B.R. 421, 423-24, supra; In re Retzlaff 64 B.R. 137, 140 (Bankr.N.D.Iowa 1986); In re Mulnix, 54 B.R. 481, 484 (Bankr.N.D.Iowa 1985); In re Timber Tracts, Inc., 70 B.R. 773, 778 (Bankr.D.Mont.1987), and In re Martin, 66 B.R. 921 supra, which has a lengthy discussion of § 1129 and pursuant to § 1129(b) confirmed the debtor’s plan which restructured a secured creditor’s note and mortgage from seven to twenty years over the objection of the secured creditor. The Martin court quoted with approval from In re Hollanger, 15 B.R. 35, 47 supra, where the court stated: As one commentary has noted, bankruptcy courts may “cramdown” feasible plans of reorganization under the Bankruptcy Code, where such plans seek to achieve restructuring of mortgage debts secured by real estate, as follows: (1)the term of any mortgage debt may be extended; (2) payments required by the mortgage debt of either principal or interest may be postponed; and (3) deferred or reduced payments of principal or interest may be added to the mortgage balance. Id. at 930. Section 1222(b)(2) expressly provides that the plan may modify any lien. Sections 1222(b)(3) and (5) state any default may be cured or waived. Thus, once the Debtor has otherwise complied with the “cram-down” requirements of § 1225 all of the foregoing may be accomplished by the Debtor’s plan as it relates to Equitable’s mortgage. As stated by the Court in In re Pikes Peak Water Co., 779 F.2d 1456 (10th Cir.1985): “... the dissenting secured claimant will be receiving the ‘indubitable equivalent’ ... Stated another way," }, { "docid": "18981708", "title": "", "text": "applicable interest rate, In re American Trailer, 419 B.R. at 440, the Court finds the adjustment proposed by the Debtors of 2.25% above the prime rate adequately adjusts for the risk associated with the Plan and the extended repayment term (discussed below) while providing the Bank with the value of its interest in Debtors’ collateral. Length of Repayment Term on the Bank’s Claim The Bank objects to the Debtors’ proposal to extend the repayment terms of the loans to 12 years. Section 1129 does not specifically prohibit a debtor from altering the original repayment period on a loan. See e.g., In re Mulberry Agr. Enterprises, Inc., 113 B.R. 30, 32-33 (D.Kan. 1990). As quoted by the Mulberry court, Bankruptcy Judge Pusateri stated in In re White, 36 B.R. 199, 203 (Bankr.D.Kan. 1983): The Court believes that § 1129 does not per se prohibit long term payouts. If the mathematical requirements of § 1129(b)(2)(A)(i)(II) are satisfied, if the creditor is adequately protected under the plan, pursuant to the general fair and equitable requirement of § 1129(b)(2), and if the debtors can prove they can make payments over the life of the plan pursuant to § 1129(a)(ll), then the plan is confirma-ble and can be crammed down on a rejecting class of secured claim holders, regardless of normal lending practices or policies. Id. at 33. See also In re Mulnix, 54 B.R. 481, 484 (Bankr.Iowa 1985) (“The legislative history to Section 1129(b) states that, to be fair and equitable, debtor’s plan has to satisfy only one of the three conditions as the plan relates to a secured creditor.... Here, debtor has proposed to allow creditor to retain her lien and to be paid present value. Thus, the minimum statutory test has been met.”) (citations omitted). Nevertheless, in determining whether a stretched out repayment period is fair and equitable, courts often look to the applicable markets, when at all possible, to determine what is reasonable, and should consider the preexisting contract length and the customary length of repayment for similar loans. See, e.g., In re Torelli, 338 B.R. 390, 397 (Bankr.E.D.Ark. 2006) (citing" }, { "docid": "9031493", "title": "", "text": "be paid over time and through the plan. Periodic payments to a secured creditor under a Chapter 13 plan in an amount necessary to protect the creditor's interest in depreciating collateral are \"periodic payments\" as such term is used in section 1325(a)(5)(B)(iii)(I). Labeling them as \"adequate protection\" does not change that result, but rather invites the \"elevat[ion] of form over substance ... to sidestep statutory requirements.\" In re Hamilton , 401 B.R. 539, 543 (1st Cir. BAP 2009). See also In re Ehiorobo, No. 13-24713-SVK, 2015 WL 394363, at *3 (Bankr. E.D. Wis. Jan. 29, 2015), aff'd sub nom. Ehiorobo v. Talmer Bank & Tr., No. 15-C-0169, 2015 WL 3936936 (E.D. Wis. June 26, 2015). Regardless of the label affixed to the \"current contractual installment payments\" and the \"arrearage\" to be made on Associated Bank's claim under the Debtor's plan, they, too, are periodic payments within the meaning of the statute. Section 1325(a)(5)(B)(iii) requires the total monthly payments on such claim-regardless of label and regardless of whether through the trustee or direct-to be in equal amounts unless the creditor consents to different treatment. The second line of cases that permit the two-stage approach, the so-called Erwin approach \", holds that section 1325(a)(5)(B)(iii) only requires equal monthly plan payments by the debtor to the trustee, and not mandate equal monthly payments to a creditor. In re Erwin, 376 B.R. 897, 902 (Bankr. C.D. Ill. 2007). These cases construe the requirements of section 1325(a) to bind the debtor and creditors, but not the trustee whose obligations to make distributions are governed by section 1326(b). 376 B.R. at 902. Thus, they conclude that section 1325(a)(5)(B)(iii) only requires a debtor to propose equal payments to a trustee, and does not mandate equal payments by the trustee to a secured creditor. Id. But this court finds Erwin's reading of subsection (5)(B)(iii) to be no less strained than the approach proposed by the DeSardi line of cases. As the court in In re Williams, we \"can find no support for the holding ... that the term 'equal monthly amounts' in § 1325(a)(5)(B)(iii) references payments to the" }, { "docid": "10214012", "title": "", "text": "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 by the trustee or the debtor under the plan on account of such claim is not less than the allowed amount of such claim....” The Code permits deferred payments over extended periods regardless of the prior financial arrangements between the parties and subsequent acceleration of the obligation due, so long as the contingencies of § 1225(a)(5)(B)(i) & (ii) are satisfied; i.e. ... the mathematical requirements are met, the creditor is adequately protected under the plan, and the debtors can prove they can make payments over the life of the plan. See, In re White, 36 B.R. 199, 203 (Bkrtcy.D.Kan.1983) and cases cited therein dealing with statutorily permissible deferred payments under Chapter 11; see also In re Mulnix, 54 B.R. 481 (Bkrtcy.N.D.IA 1985). Loans secured by real estate are frequently made for terms of thirty (30) years and the Court finds that this is a reasonable term for such a payback. As to the payments being made annually, the Court concurs with the conclusion reached by Samuel J. Gerdano and A. Thomas Small in their overview of the new Chapter 12 as printed in American Bankruptcy Institute, Legislative Seminar: Bankruptcy Developments 1986, (1986); Chapter 12—Adjustment of Debt of a Family Farmer with Regular Annual Income, at page 52. “The title of Chapter 12, ‘Adjustment of Debts of a Farmer with a Regular Annual Income’ and the definition of family farmer with regular income indicate that annual payments are permissible”. Federal Land Bank has further objected to the rate of interest which the debtors have proposed to pay on the written down secured claim. The plan provides for interest to be paid at the rate of nine (9%) percent per annum. The purpose of the interest payment to be paid on the secured claim under the plan is to provide the creditor with the value “as of the effective date of the plan” of its secured claim." }, { "docid": "9338939", "title": "", "text": "ORDER JOHN L. PETERSON, Bankruptcy Judge. On September 4, 1987, the Court denied confirmation of the Debtor’s Chapter 12 Revised Plan on grounds the Plan was not feasible, the Plan failed to commit the net disposable income, if any, to payment of unsecured claims, and the Plan did not propose to pay each secured creditor the present value of their allowed secured claim. In re Big Hook Land & Cattle Co., 77 B.R. 793 (Bankr.D.Mont.1987). The Debtor then amended the Plan on September 18, 1987 (filed September 21, 1987) to provide for a change in operations by running of cattle on shares, which adds about $12,000.00 additional income to the operation annually, and proposes to pay Federal Land Bank of Spokane (FLB) and Milk River PCA (PCA) in full over 20 years at 10%% interest per year. Hearing on confirmation of the Amended Plan, together with objections filed by FLB and PCA, was held on October 29, 1987. All parties have now submitted memorandums in support of their respective positions. PCA claims the Plan understates its secured claim, does not provide for payment of present value in accordance with § 1225(a)(5), disputes the interest rate proposed in the Plan as not being a market rate of interest, and contends the Plan is not feasible. FLB’s objections are along the same line, except it concedes the Plan properly fixed the amount of its secured claim. The record developed at the confirmation hearing which led to the September 4, 1987, Order has been incorporated into the present record as well as the Court taking judicial notice that the prime rate of interest is now 8%% (being 9% at the date of hearing). In the Order of September 4,1987,1 noted that “PCA has a second lien on land and improvements, and a first lien on livestock and equipment. PCA and Debtors agree that the value of its collateral is $58,585.00 and the debt due PCA as of June 1, 1987, was $144,462.00, thereby leaving PCA in an undersecured position”. Included in the valuation of $58,585.00 was livestock at $24,650.00. PCA now claims that" }, { "docid": "10214011", "title": "", "text": "the plan is not well taken. The debtors propose to submit all disposable income to the plan, and the liquidation analysis presented upon hearing shows a greater return to holders of unsecured claims under the plan than that realizable under a Chapter 7 proceeding. (See, §§ 1225(b)(1)(B) and 1225(a)(4)). The principal objection of F.L.B. is to the debtors’ proposal to pay the allowed secured claim of F.L.B. over a thirty year term at 9% interest. F.L.B. contends that the proposed annual payments extending for a period of thirty years is contrary to the provisions of its original note and mortgage. Section 1222 of the Bankruptcy Code specifically authorizes deferred payments: \"... the plan ... may provide for payment of allowed secured claims consistent with Section 1225(a)(5) of this title ... over a period exceeding the period permitted under section 1222(c).” (i.e. 3-5 years), (emphasis supplied). (See, § 1222(b)(9)). Section 1225(a)(5) states in pertinent part that “the court shall confirm a plan if — (5) with respect to each allowed secured claim provided for by 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 by the trustee or the debtor under the plan on account of such claim is not less than the allowed amount of such claim....” The Code permits deferred payments over extended periods regardless of the prior financial arrangements between the parties and subsequent acceleration of the obligation due, so long as the contingencies of § 1225(a)(5)(B)(i) & (ii) are satisfied; i.e. ... the mathematical requirements are met, the creditor is adequately protected under the plan, and the debtors can prove they can make payments over the life of the plan. See, In re White, 36 B.R. 199, 203 (Bkrtcy.D.Kan.1983) and cases cited therein dealing with statutorily permissible deferred payments under Chapter 11; see also In re Mulnix, 54 B.R. 481 (Bkrtcy.N.D.IA 1985). Loans secured by real estate are frequently made for terms of thirty (30) years and the Court finds" }, { "docid": "12485280", "title": "", "text": "satisfied. These cases did not take a creditor’s reluctance in making long-term loans into consideration when making a decision as to whether the plan was fair and equitable: The Court believes that § 1129 does not per se prohibit long term payouts. If the mathematical requirements of § 1129(b)(2)(A)(i)(II) are satisfied, if the creditor is adequately protected under the plan, pursuant to the general fair and equitable requirement of § 1129(b)(2), and if the debtors can prove they can make payments over the life of the plan pursuant to § 1129(a)(ll), then the plan is confirmable and can be crammed down on a rejecting class of secured claim holders, regardless of normal lending practices or policies. In re Mulberry Agric. Enter., Inc., 113 B.R., at 33 (quoting In re White, 36 B.R. 199, 203 (Bankr.D.Kan.1983)). The Mulberry Agric. court concluded that “[t]he law appears to support the stretch out of lending terms, despite the original intentions of the lenders, given the satisfaction of other prerequisites which have not been challenged here.” In re Mulberry Agric. Enter., Inc., 113 B.R., at 33. In In re Martin, 66 B.R. 921 (Bankr.D.Mont.1986), the court confirmed a plan which restructured a note and mortgage from 7 to 20 years, over the dissent of the secured creditors. The court concluded that the Code allows mortgage debts to be extended. ‘As one commentary has noted, bankruptcy courts may ‘cram down’ feasible plans of reorganization under the reorganization provisions (e.g. section 1129) of the new Bankruptcy Code, where such plans seek to achieve restructuring of mortgage debts secured by real estate as follows: (1) The term of any mortgage debt may be extended; (2) Payments required by the mortgage debt of either principal or interest may be postponed; and (3) Deferred or reduced payments of principal or interest may be added to the mortgage balance.’ In re Martin, 66 B.R., at 930 (quoting In re Hollanger, 15 B.R. 35, 47 (Bankr.W.D.La.1981)). The Martin court found the restructuring to be reasonable considering the creditor “will retain its lien on the real property as a first mortgage holder and," }, { "docid": "1160888", "title": "", "text": "judicial notice of the October 19, 1987 order, and finds that the value of Equitable’s allowed secured claim pursuant to § 1225(a)(5)(B)(ii) is $521,265.00. The Court upon examination of the record and the Debtor’s plan finds that Sections 1225(a)(2) and (3) have been complied with. The Court further finds that the Debtor’s plan also meets the requirements of § 1225(a)(4), or the “best interest of creditors test” based upon the stipulation of the parties and the trustee at the previous hearing as to the confirmation of the Debt- or’s original plan, and that this requirement has been satisfied by the Debtor’s amended plan which provides for an annual minimum payment of $7,842.20 per year for three years to unsecured creditors. The Court will next address that portion of the Debtor’s plan which proposes to pay Equitable an interest rate of 8.98% per annum on its allowed secured claim. Section 1225(a)(5)(B)(ii) like § 1325(a)(5)(B)(ii) and § 1129(b)(2)(A)(i)(II), provides that the Debtor must pay to the holder of an allowed secured claim, “the value, as of the effective date of the plan, of property to be distributed by the trustee or the Debtor under the plan on account of such claim is not less than the allowed amount of such claim; ...” (Emphasis added). As stated in In re Martin, 66 B.R. 921 (Bankr.D.Mont.1986): As to secured creditors, the plan may be confirmed under 1129(b)(2)(A)(i) if the secured creditor retains a lien securing the amount of its allowed secured claim and it receives deferred cash payment having a present value, as of the effective date of the plan, equal to the present value of the collateral. Ahlers, at 401. (In re Ahlers, 794 F.2d 388 (8th Cir.1986)). Moreover, the allowed secured claim must equal the value of the collateral at the time the plan is confirmed. 11 U.S.C. 506(a). In that regard, “application of the test under [11 U.S.C. 1129(b)(2)(A)] also requires a valuation of the consideration as of the effective date of the plan” and “[T]his contemplates a present value analysis that will discount value to be received in the future;" }, { "docid": "18981707", "title": "", "text": "have both taken on full-time factory jobs and have earned enough to save up $33,000 to fund their farming operation. (They were not able to farm in prior years because they did not have the cash necessary to plant a crop.) They have been able to make $1,300 monthly payments to the Bank for the majority of their bankruptcy case, and have paid approximately $75,000 to the Bank since they first filed in 2005 (not including the $25,000 the Bank received on account of the 2008 storm damage). Furthermore, the collateral in this case is real estate. There is no evidence the real estate is depreciating or is in any danger of depreciating. The Bank agrees it is oversecured on all its loans. Finally, based on the Court’s conclusions regarding feasibility of the Debtors’ Plan, the Court finds the proposed duration of payments under the Plan to be reasonable. The Debtors propose to pay the Bank over 12 years, and the FSA over 20 years. Although longer repayment terms may justify an increase in the applicable interest rate, In re American Trailer, 419 B.R. at 440, the Court finds the adjustment proposed by the Debtors of 2.25% above the prime rate adequately adjusts for the risk associated with the Plan and the extended repayment term (discussed below) while providing the Bank with the value of its interest in Debtors’ collateral. Length of Repayment Term on the Bank’s Claim The Bank objects to the Debtors’ proposal to extend the repayment terms of the loans to 12 years. Section 1129 does not specifically prohibit a debtor from altering the original repayment period on a loan. See e.g., In re Mulberry Agr. Enterprises, Inc., 113 B.R. 30, 32-33 (D.Kan. 1990). As quoted by the Mulberry court, Bankruptcy Judge Pusateri stated in In re White, 36 B.R. 199, 203 (Bankr.D.Kan. 1983): The Court believes that § 1129 does not per se prohibit long term payouts. If the mathematical requirements of § 1129(b)(2)(A)(i)(II) are satisfied, if the creditor is adequately protected under the plan, pursuant to the general fair and equitable requirement of § 1129(b)(2)," }, { "docid": "4769868", "title": "", "text": "re Parker, 46 B.R. 106 (Bankr.N.D.Ga.1985); In re Fowler, 83 B.R. 39 (Bankr.D.Mont.1987); In re Big Hook Land and Cattle Company, 81 B.R. 1001 (Bankr.D.Mont.1988). These cases, however, are distinguishable. In Pikes Peak, a case decided under Chapter 11, the Court addressed the issue of confirmation pursuant to § 1129(b)(2)(A)(iii). This subsection is not at issue in the instant case. Likewise, in Fowler, the Court did not have before it the issue of deferred interest. In Big Hook, another Chapter 12 case, the Court held that negative amortization satisfied the requirements of § 1225(a)(5) of the Code. Such a determination, however, was not disputed by Freddie Mac. Finally, the Debtor cites In re Parker, a case decided under Chapter 13. In Parker the Court addressed the issue of whether the negative amortization aspect of a note rendered the lender’s security interest inadequately protected. This is not the issue before the Court today. Thus the cases presented by the Debtor in support of its position are unpersuasive. In addition to relying on the aforementioned cases, the Debtor argues, essentially, that money paid in a lump sum is equivalent to money paid in installments. While the Court acknowledges that a sufficiently large balloon payment on December 1,1999 may amount to the present value of the debt, the Court believes that the fair and equitable standards of § 1129(b)(2) require consideration of factors in addition to the mathematical accuracy of the computation of payments in the Plan. Section 1129(b)(2) does not state that a plan which satisfies the standards contained in subpar-agraph (A)(i)(II) is “fair and equitable”. It merely states that the concept of “fair and equitable” as applied to dissenting classes of secured creditors includes the treatment contained in § 1129(b)(2)(A)(i)(II). Section 102(3) of the Code states that the words “includes” and “including” as used in the Code are not limiting. Thus, a plan which satisfies the standards set forth in § 1129(b)(2) may or may not be “fair and equitable”. Freddie Mac argues that negative amortization of the deferred and capitalized post-confirmation interest never satisfies the “fair and equitable” standards of" }, { "docid": "18981711", "title": "", "text": "years not unreasonable); In re O’Farrell, 74 B.R. 421, 423 (Bankr.N.D.Fla.1987) (thirty years is a reasonable period for a loan secured by real estate); In re Martin, 66 B.R. 921 (Bankr.D.Mont.1986) (stretchout of note and mortgage from seven to twenty years confirmed)). In this case, the Debtors have provided for the Bank to retain its lien, and have provided for the payment of a fair interest rate so that the Bank will receive the present value of its claim. As discussed earlier, the upward adjustment of 2.25% to the prime rate is sufficient to compensate the Bank, in part, for the lengthened repayment term given that the Debtors are likely to be able to make payments under their Plan, the Bank is oversecured, and the collateral is improved farmland unlikely to depreciate in value. Although Mr. Montgomery testified that the Bank’s practice is to hold fixed rate loans of terms no longer than 5 years, the documents filed together with the Bank’s proof of claim show that the Bank does indeed make loans with terms at least as long as ten years. Two of the loans giving rise to the Bank’s claim originally had ten year terms, including the loan secured by the Debtors’ home. Given that the collateral securing the Bank’s claim is improved farmland, the Court finds a repayment term of 12 years is both fair and equitable. Cramdown of FSA’s Claim FSA’s loans to Debtors are cross-collat-eralized and secured by certain personal property, primarily consisting of farm equipment, as well as a junior lien on the Debtors’ Home Tract and a first lien on the Debtors’ Remaining Tracts. Debtors propose to surrender some equipment while retaining the remainder of their personal property. Debtors propose to retain all their real property. The Plan provides that FSA will keep its first lien on the Remaining Tracts and the Debtors’ personal property as security for the debt owed FSA, but that FSA will release its junior lien on the Home Tract in exchange for a $4,000 lump sum treatment. FSA objects to the Debtors’ attempt to “bifurcate” its claim secured" }, { "docid": "1160932", "title": "", "text": "rate, and that generally, the best evidence of what a reasonable discount rate is for a given principal, term and risk, is the rate the debtor would pay for such a loan in the marketplace absent the event of bankruptcy. In re Konzak, 78 B.R. 990, 992 (Bankr.D.N.D.1987), See also, Matter of Southern States Motor Inn, 709 F.2d 647, 652-53, supra. The risk of default for reorganizing Debtor may be at least as great as that of a nonreorganizing debtor. U.S. v. Neal Pharmacal, 789 F.2d 1283, 1288, supra. In fact in a Chapter 12 certain risks can be heightened. Matter of Doud, 74 B.R. 865, 869 (Bankr.S.D.Iowa 1987); Matter of Wichmann, 77 B.R. 718, 721 (Bankr.D.Neb.1987). Finally, the Court will address for future reference the fact that the Debtor’s plan contemplates a 30 year stretchout on the Equitable’s mortgage. Section 1222(b)(9) does not per se prohibit long term payouts so that the terms of the loan documente are modified. If the mathematical requirements of § 1225(a)(5)(B)(ii) are satisfied and the Debtors show that they can make the payments over the life of the plan pursuant to § 1225(a)(6), the plan is confirmable and can be “crammed down” over the objections of a secured creditor regardless of its normal lending practices and policies or the terms and conditions of the required loan instruments. See In re White, 36 B.R. 199, 203 (Bankr.D.Kan.1983), citing, In re Benson, 9 B.R. 854 (Bankr.N.D.Ill.1981), In re Hollanger, 15 B.R. 35 (Bankr.W.D.La.1981), and Wachovia Bank and Trust Co. v. Harris, 455 F.2d 841 (4th Cir.1972). See also, In re O’Farrell, 74 B.R. 421, 423-24, supra; In re Retzlaff 64 B.R. 137, 140 (Bankr.N.D.Iowa 1986); In re Mulnix, 54 B.R. 481, 484 (Bankr.N.D.Iowa 1985); In re Timber Tracts, Inc., 70 B.R. 773, 778 (Bankr.D.Mont.1987), and In re Martin, 66 B.R. 921 supra, which has a lengthy discussion of § 1129 and pursuant to § 1129(b) confirmed the debtor’s plan which restructured a secured creditor’s note and mortgage from seven to twenty years over the objection of the secured creditor. The Martin court quoted with approval from" }, { "docid": "14783180", "title": "", "text": "to § 1222(a)(2), must be paid in full; b) unsecured claims; c) secured claims which will be fully satisfied during the life of the plan, where the creditor’s rights have been modified; and, d) the cure of an arrearage on a secured claim where the debtor will maintain the current payments otherwise required of it, as contemplated by § 1222(b)(5). The ultimate thrust of these requirements is that the only payments which may be made directly to creditors by the debtor are those on account of secured claims, which will survive the plan and be excepted from the debtors’ discharge, pursuant to 11 U.S. C. § 1228(a)(1), and the regular payments which the debtor has elected to maintain. Consequently, if the debtor modifies the rights of a secured creditor and the payments to it will exceed the life of the plan, the debtor may make those payments directly, rather than through the trustee. Similarly, if the debtor elects to cure defaults on a long term debt, while maintaining the current payments otherwise required of it, the current payments may be paid directly by the debtor. The payments designed to cure the arrearage must, however, be paid through the trustee. Finally, if a secured creditor’s payments are not altered in any way, the debtor may make payments directly, regardless of their duration. See In re Erickson Partnership, supra, 83 B.R. at 728-29; In re Crum, 85 B.R. 878, 879 (Bankr.N.D.Fla.1988); In re Land, 82 B.R. 572, 579-80 (Bankr.D.Colo.1988). See also In re Wright, 17 B.C.D. 105, 106, 82 B.R. 422 (Bankr.W.D.Va.1988); In re Evans, 66 B.R. 506 (Bankr.E.D.Pa.1986); Matter of Reines, 30 B.R. 555, 562 (Bankr.D.N.J.1983). But see In re Hildebrandt, 79 B.R. 427, 429 (Bankr.D.Minn.1987). Measuring the plans currently before the court against these standards, neither complies. Both plans contemplate that, at least to some extent, payments to priority creditors, which would not be considered part of debtor’s normal operating expenses, will be made directly by the debtors, rather than through the trustee. The plans, also, propose to modify the rights of some secured creditors and, yet, fully satisfy these" }, { "docid": "18160085", "title": "", "text": "to adequately protect the creditor’s secured claim over the course of the plan repayment period. See Underwood, 87 B.R. at 597; Simmons, 86 B.R. at 162; Milleson, 83 B.R. at 701; Hansen, 77 B.R. at 726; Wobig, 73 B.R. at 295. Accordingly, the plan must provide that the value of the herd will be maintained at a level sufficient to ensure that the creditor will recover the balance remaining on its claim in the event the debtor defaults on plan payments. The determination of the appropriate margin of protection must take into account the risk of fluctuations in livestock prices during the repayment term. See Underwood, 87 B.R. at 596-97; Milleson, 83 B.R. at 701. Furthermore, depending upon the level of over-collateralization provided for in the plan, it may be essential that the plan contain additional safeguards, such as monthly collateral reports, allowance of inspection by the creditor or trustee upon reasonable notice, or monthly interest payments. See Wobig, 73 B.R. at 295; Farm Bankruptcy Guide ¶ 4.08[2][b], at 4-97. The bank contends that a less-than-literal interpretation of § 1225(a)(5)(B)(i) is impermissible because the concept of adequate protection may not be used in deciding whether a reorganization plan should be confirmed. We find no merit in this contention. The confirmation requirements of § 1225(a) implicitly embody the concept of adequate protection for a secured creditor’s claim. See also Farm Bankruptcy Guide ¶ 4.08[2][b], at 4-95 (“debtor’s good faith obligation, and perhaps constitutional considerations as well, will require that the creditor’s interest in its collateral be protected at all times during the plan repayment period”). The lien retention requirement'itself is not met if payments under the plan to reduce the principal amount of the claim will not keep pace with the depreciation of the lien collateral. In re Borg, 88 B.R. 288, 292 (Bankr.D.Mont.1988). In addition, the requirement of adequate protection is also contained in § 1225(a)(5)(B)(ii) and § 1225(a)(6), which require that the secured creditor receive payments under the plan at least equal to the present value of its claim and that the debtor will be able to make all" }, { "docid": "1084646", "title": "", "text": "secured claim ordinarily should not increase. First Union’s only other objection pertaining to debtor’s proposed application of payments is to the allocation of $180,000.00 toward the first four payments under debt- or’s plan. That objection is overruled. In re Sherwood Square Associates, 87 B.R. 388 (Bankr.D.Md.1988); See also Beau Rivage, 126 B.R. at 640. In accordance with the above, debt- or can apply $2,975,834.00 of the post-petition payments to First Union’s claim of $14,036,000.00 to reduce First Union’s claim to the value of the Project which is $12,036,200.00, and debtor can apply $180,-000.00 of the post-petition payments to payments due under the plan. As stated at the beginning of this Order, First Union raised other objections to the debtor’s plan, and debtor raised objections to First Union’s plan. It appears, however, that a number of these other objections may be moot as a result of the Court’s ruling on the interest rate and the application of payments. Rather than speculate as to which issues remain outstanding at this juncture, the parties are directed to appear on January 8, 1992 at 10:00 a.m. in Courtroom 1708 and advise the Court which factual or legal issues remain to be adjudicated in order to determine which plan should be confirmed. IT IS SO ORDERED. . Oaks has challenged First Union’s acquisition of an interest in the Wrap Note in an adversary proceeding. . This number reflects payments through December, 1991. . See C. Frank Carbiener, Present Value in Bankruptcy: the Search for an Appropriate Cramdown Discount Rate, 32 S.D.L.Rev. 42, 43 (Fall 1987); Waltraud S. Scott, Deferred Cash Payments to Secured Creditors in Cram Down of Chapter 11 Plans: a Matter of Interest, 63 Wash.L.Rev. 1041 (1988); Matter of Jordan, 130 B.R. 185, 187-189 (Bankr.D.N.J.1991). . See 11 U.S.C. §§ 1129(a)(7)(A)(ii), (a)(7)(B), (a)(9)(B)(i), (a)(9)(C), (b)(2)(A)(i)(II), (b)(2)(B)(i), (b)(2)(C)(i), 1225(a)(4), 1225(a)(5)(B)(ii), 1325(a)(4), (a)(5)(B)(ii). .Two other Eleventh Circuit cases deal with this language, but these cases do not address the method for calculating the interest rate. See Foster Mortgage Corp. v. Terry (In re Terry), 780 F.2d 894 (11th Cir.1986); Travelers Ins. Co. v. Bullington, 878" }, { "docid": "18843532", "title": "", "text": "in its objection to confirmation asserts that the 9.8% fixed rate of interest that the Debtors propose to pay per annum over the life of the Plan is unsatisfactory in that it does not reflect an interest rate that the market would impose upon an obligation of similar terms and risk. This rate, the Bank maintains, does not afford it the present value of its allowed claim. The United States Constitution, the Bankruptcy Code, and case law clearly establish that a secured creditor in bankruptcy is entitled to the full value of its allowed claim. In re Kloberdanz, 83 B.R. 767, 770 (Bankr.D.Colo.1988). Section 1225(a)(5)(B) of the Bankruptcy Code provides that a court shall confirm a plan of reorganization over the objection of a secured creditor if the plan provides that the creditor will retain the lien securing its claim and will receive a value, as of the effective date of the plan, that is not less than the allowed amount of its claim. 11 U.S.C. § 1225(a)(5)(B). This subsection allows a farm debtor to “cram down” a plan of reorganization onto the holder of an allowed secured claim in situations in which the creditor refuses to accept the proposed plan, provided that, among other things, the value of the secured creditor’s claim is demonstrably preserved. See In re Fenske, 96 B.R. 244, 248 (Bankr.D.N.D.1988). In order for a secured creditor to receive a value that is at least equal to the allowed amount of its claim as of the effective date of a plan, the payments provided under a plan of reorganization must be discounted by an appropriate rate of interest, thus providing the creditor with the present value of its claim. In re Edwardson, 74 B.R. 831, 835-36 (Bankr.D.N.D.1987). Stated differently, when a debtor’s plan of reorganization proposes to pay the holder of a secured claim in deferred installments, the value of the proposed payments must not be less than the allowed amount of the secured claim. Accordingly, a discount factor must be applied to the proposed stream of payments in order to determine the present value of" }, { "docid": "3961656", "title": "", "text": "in order to pay the total amount of payment originally confirmed. The debtors seek permission to extend the payment period to five years from the date of confirmation, thus allowing them to make smaller monthly payments than would be required by the earlier deadline imposed by measuring the payment period from the date on which the first payment is due. The trustee correctly argues that the point to begin measuring the five-year repayment period is the date the first payment is due. The appropriate time from which to calculate the length of the Chapter 13 plan is the date at which the debtor is first obligated to begin making payments. In re Duckett, 139 B.R. 6, 8 (Bankr.E.D.Tex.1992). See also In re Woodall, 81 B.R. 17, 18 (Bankr.E.D.Ark.1987); In re Neill, 158 B.R. 93, 97 (Bankr.N.D.Ohio 1993); In re Howell, 76 B.R. 793 (Bankr.D.Or.1986). To allow the payment limitation period to begin at confir mation would allow for intentional delays in achieving confirmation to manipulate the mandatory time periods set forth in § 1322(c). In re Cobb, 122 B.R. 22, 27 (Bankr.E.D.Pa.1990). Additionally, commencing the time length of the payment period from confirmation would impose an additional burden on the debtors, not authorized by the Code, requiring the making of pre-petition payments due pursuant § 1326(a)(1), but not counting those payments under the term set forth in the plan. The five-year maximum repayment period imposed by § 1322(c) and § 1329(e) would be impermissi-bly extended by the amount of time passing between filing and confirmation. Precedent in the district agrees with calculation of the repayment period from the date the debtor is first obligated to begin making payments. In re Green, 169 B.R. 480, 483 (Bankr.S.D.Ga.1994, Walker, J.). I agree with the starting point established in Green and find that the Chapter 13 payment period commences with the date the first payment is required to be made under § 1326(a)(1). The “disposable income” test found in § 1325(b)(1)(B) supports this analysis. Under this test, a court may not approve a plan over the objection of the trustee or the holder" } ]

[ { "docid": "5607239", "title": "", "text": "explicitly concluded that the government had satisfied the requirements of Fed.R.Evid. 801(d)(2)(E), yet nonetheless struck the disputed evidence because of Rule 403 concerns. Although this was a somewhat unorthodox use of the Rule 801(d)(2)(E) model, we think that, as a theoretical matter, it was within the court’s authority. Cf. United States v. Van Nuys, 707 F.Supp. 465, 468 (D.Colo.1989) (concluding, after trial, that a significant amount of testimony admitted under Rule 801(d)(2)(E) should have been excluded pursuant to Rule 403). As to the standard of review, all roads lead to Rome. We review a trial court’s balancing under Rule 403 for abuse of discretion. United States v. Marrero-Ortiz, 160 F.3d 768, 774 (1st Cir.1998). We likewise review decisions to deny motions for mistrial for abuse of discretion. United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994). We discern no abuse here. The trial court found that the challenged statements were tangential to the core conspiracies of robbery and attempted murder alleged in the indictment. Concerned that the unfairly prejudicial effect of the statements might outweigh their probative value, the court struck the evidence and instructed the jury to disregard it. The appellant argues that this palliative was insufficient because the court could not unring the bell — the evidence was so inflammatory that, once it was aired, no reasonable juror could be expected to disregard it. Whether or not a jury can be expected, under proper instructions, to disregard particular evidence is a judgment call, and one as to which appellate courts typically cede a high degree of deference to the trial court. E.g., United States v. Freeman, 208 F.3d 332, 344 (1st Cir.2000) (upholding district court’s determination that curative instruction regarding evidence provisionally admitted but later stricken sufficiently shielded defendant from unfair prejudice). We do not think that the limits of that deference were tested here. To be sure, the statements attributed to Sutherland were unhelpful to the appellant, but their content was not shocking when measured against the rough-and-tumble evidence properly admitted in the case. Moreover, it is routinely presumed that jurors will follow curative instructions and" } ]

[ { "docid": "20329712", "title": "", "text": "twice blurted out that the defendant had suffered a gunshot wound in an event unrelated to the drug trafficking conspiracy with which he was charged. See id. at 672. The district judge gave a contemporaneous curative instruction on each occasion, and refused to declare a mistrial. We upheld the ruling. See id. Here, as in Bello-Perez, the trial court’s handling of the witness’s rash comment was well within the broad range of its discretion. The analogy operates on at least three levels. First, here, as in Bello-Perez, the offensive information, though unfit for jury consumption, was not of a kind that might be thought irredeemably to poison the well. The fact that Roman pleaded guilty had no bearing upon appellant’s primary line of defense-mistaken identity-and had nothing to do with the government’s attempt to prove that Rivera-Gomez was the man who accompanied Roman during the carjacking spree. Second, the strength of the government’s overall ease is frequently a cardinal factor in evaluating the denial of a mistrial motion. Here, as in Bello-Perez, the prosecution’s case was extremely robust. There is a correspondingly small risk, therefore, that Lama-Canino’s wayward remark could have been the straw that broke the dromedary’s back. See United States v. Scelzo, 810 F.2d 2, 5 (1st Cir.1987). Third, permitting the trial to proceed is more palatable because, as in Bello-Perez, the judge gave an immediate curative instruction-a device that we have regularly endorsed as a means of dispelling potential prejudice. See United States v. Chamorro, 687 F.2d 1, 6 (1st Cir.), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613 (1982). We not only believe that the language used by the court fit the occasion, but we also take heed that appellant did not-then or now-suggest a more felicitous phrasing. At the expense of carting coal to Newcastle, we note, too, that the judge, in a commendable abundance of caution, again admonished the jurors in his final instructions that appellant alone was on trial, and that Roman’s guilt or innocence was not a matter with which they should concern themselves. We are confident that these" }, { "docid": "15239725", "title": "", "text": "law that we don’t assign to a person a bad character or bad trait of character because of something that he may or may not have done in the past and let that carry-over as evidence of guilt of something that may or may not have happened at a later time. Does everyone understand that? I am sure that you do and I am sure you believe in that and I am sure that you will just disabuse your mind of anything you heard about that yesterday afternoon and we will proceed to try this case and each of these defendants on the evidence that the government may present in this case about this alleged offense and not allow anything else to influence your de- cisión and particularly that remark yesterday afternoon. The court has explored it. I have made a determination that it was unintentional, it was inadvertent; and it was hot intended to prejudice your minds in any way and I am asking you now if you feel that you can and will disabuse your minds of that remark and will not allow it to prejudice you in any way in your consideration of the facts and of the guilt or innocence of these accused. Everybody who can do that raise your hand, would you, please. The court observes for the record that all hands are raised. Evidence as to prior crimes committed by a defendant is generally inadmissible in attempting to establish guilt of a crime for which the defendant is on trial. Fed.R.Evid. 404(b). However, the general rule is that the subsequent striking of erroneously admitted evidence accompanied by a clear and positive instruction to the jury to disregard cures the error. United States v. Wells, 431 F.2d 432, 433 (6th Cir.), cert. denied, 400 U.S. 967, 91 S.Ct. 380, 27 L.Ed.2d 388 (1970). From the record, there is sufficient evidence that the district court gave a clear and positive instruction to the jury to disregard Trammel’s statement. Therefore, the appellants’ assertion that the district court erred in denying a mistrial is unfounded. D. PROBABLE CAUSE" }, { "docid": "976892", "title": "", "text": "question cannot properly be characterized as a comment on appellant’s failure to take the witness stand. We agree with the latter position. The district court was justified in characterizing the prosecutor’s remark as “most oblique,” and in concluding that “it would appear improbable that the jury, unlike defense counsel and the Court, grasped its possible import.” The prosecutor, again, having called attention to defense counsel’s opening remark that it would be shown that appellant was going to use the stationwagon for a date with a girl, said: “Any proof of that in this lawsuit? Only what the defendant said, and he never once vouched for his credibility.” In context, the words “he never once vouched” could well be taken as a reference not to the appellant but to his trial counsel or to his failure to present supporting proof. Furthermore, counsel for the defense made no objection at the time of the allegedly improper remark. Under the rule of United States v. Nasta, 398 F.2d 283, 285 (2d Cir. 1968), such an objection must be made immediately: “Finally, where as here the comments are at most ambiguous, an instruction to the jury will suffice to avoid possible prejudice. It is appropriate, therefore,, to require counsel to make an immediate objection and request curative instructions. Since counsel did not do this but merely moved for a mistrial at the conclusion of the summations, appellant is precluded from raising the issue now. [Citing cases.]” In the case at bar, the defense did not even do what had been done in Nas-ta, namely, to call for a mistrial at the conclusion of the summation. A motion was made after the verdict to set it aside because of “certain errors” committed, but no specific reference was made to the passage here in question. The judge did give careful instructions to the jury on the issue of self-incrimination, which instructions must be viewed as having cured any misunderstanding held by jury members who may have interpreted the remark in question as a comment on the failure to take the stand. Finally, even if appellant’s characterization" }, { "docid": "15188310", "title": "", "text": "Nevertheless, the military judge did not declare a mistrial, but instead issued curative instructions to the members that this evidence was inadmissible and that they should completely disregard this testimony. Id. at 55. Then-Judge Cox, writing for a unanimous Court, found no “extraordinary circumstances” that required a mistrial because “the adverse impact” of this inculpatory evidence was neutralized by these curative instructions. Id. at 57. Turning to the present case, we note that the legal authorities cited by appellant do not establish a per se rule that a mistrial must be declared when a prosecutor testifies in a case in which he is prosecuting. See generally Robinson v. United States, 32 F.2d 505, 510 (8th Cir.1929) (although testimony by prosecutor does not require reversal, prosecutor should not testify “except under most extraordinary circumstances”). Thus, we doubt such a rule exists for a prosecution expert who somehow acts as a prosecutor in front of the members. Moreover, the trial judge granted the defense’s alternative request to fully cross-examine this prosecution expert and reveal her pro-prosecutorial conduct to the members. Any bias, beyond that normally attributed to the party who called her, was therefore fully disclosed to the members. Also, the military judge gave a particularly focused instruction to the members on evaluating this witness’ credibility, which tended to disparage Dr. Cooper’s testimony and was generally detrimental to the prosecution’s case. See United States v. Balagna, supra (curative instructions even in extreme cases may suffice to avoid mistrial). Finally, we are not convinced that Dr. Cooper’s conduct was so prejudicial to the defense that curative instructions were unlikely to cure it. United States v. Klein, 546 F.2d 1259, 1262-63 (5th Cir. 1977), quoted in United States v. Escalante, 637 F.2d 1197, 1203 (9th Cir.1980). In sum, we find no abuse of discretion when the trial judge refused to grant a mistrial. INADEQUATE ALTERNATE REMEDY The specified issue further questions the legal adequacy of the remedial actions ordered by the trial judge in lieu of declaring a mistrial. Appellant argues that his military judge had inherent authority to disqualify an expert witness in" }, { "docid": "15333836", "title": "", "text": "its probative value is substantially outweighed by its unfairly prejudicial effect). One of the police officers nevertheless let slip a mention of the gun during his trial testimony. The appellant objected and sought a mistrial. The district court struck the offending portion of the answer and gave the jury an emphatic curative instruction: “The stun gun has nothing to do with this case.... So you should not infer that there is anything improper about the presence of the stun gun there because there wasn’t, and you should not consider it in your deliberations because it had nothing to do with this case.” Having taken these prophylactic measures, the court refused to declare a mistrial. The appellant assigns error to this ruling, asserting that no instruction could cure the prejudice inherent in the mere mention of the stun gun. In his view, that reference, in conjunction with Joy’s testi mony about the appellant’s alleged attempt to flee, inevitably would have led the jury to believe that the appellant harbored a propensity for violence. The district court rejected this hypothesis. So do we. When a witness strays into forbidden territory, the usual remedy is to strike the wayward remark and instruct the jury to disregard it. See, e.g., United States v. Bradshaw, 281 F.3d 278, 284 (1st Cir.2002); Fierro, 32 F.3d at 617. In all but the rare case, that remedy, if properly executed, will suffice to safeguard the aggrieved party’s rights. Perscrutation of the record persuades us that this case falls within the general rule, not within the long-odds exception to it. Four factors heavily influence our judgment. First, the witness’s allusion to the stun gun, taken in context, was rather innocuous. Second, the lower court supportably found that the comment was inadvertent. Third, the court’s response was swift and pointed. It struck the offending reference and gave a blunt curative instruction on the spot. The appellant did not fault the wording of the instruction at the time and does not do so now. Finally, there is a strong presumption that jurors will follow clear instructions from the presiding judge. See" }, { "docid": "21556629", "title": "", "text": "entitled to present evidence as to the nature of the injury inflicted by Local 42, namely the onset of post traumatic stress syndrome, an illness which had its genesis in Vietnam. Local 42 did not object to that ruling when given, and it cannot now argue that Doty’s preexisting physical condition is irrelevant. D. References to Sewall Carrying a Weapon Local 42 next argues that, at trial, Doty introduced evidence tending to show that Sewall carried a gun, that the evidence was' prejudicial, and that it was intended only to incite the passions and prejudices of the jury. We, like the district court, disagree. In the first of the instances in which the weapon was mentioned, the witness slipped in a reference to a gun without probing by counsel. The court ruled that the testimony was inadmissible, and offered, at the close of all the evidence, to instruct the jury to disregard the statement. This offer was never accepted. Instead, Local 42 moved for a mistrial on the grounds that the mention of the gun was so prejudicial that a curative instruction would not suffice to cure the damage done. The district court/using its discretionary powers, denied the motion. See, e.g., Standard Indus., Inc. v. Mobile Oil Corp., 475 F.2d 220, 228-29 (10th Cir.) (“matter of declaring mistrial, or not, because of improper, voluntary statements of a witness” is “of necessity ... a matter peculiarly within the sound discretion of the trial judge”), cert. denied, 414 U.S. 829, 94 S.Ct. 55, 61, 38 L.Ed.2d 63 (1973). Upon review, we find no abuse of discretion. Nor can we say that the one other gun reference of which Local 42 complains on appeal was unfairly prejudicial or irrelevant. In that second reference, Doty offered testimony to prove he knew that Se-wall carried a gun to union meetings. This testimony was offered to discredit Sewall’s contention that Doty assaulted him, rather than the reverse, as Doty alleged. The district court, holding that the evidence was relevant to Doty’s state of mind at the time of the assault, allowed its introduction. Within the context" }, { "docid": "1701290", "title": "", "text": "Explaining its decision to release those portions of the transcripts, the district court said: “Even though it appears that Christopher was programmed by the government to lead [Beasley’s first counsel] on, the fact that Christopher indicated he could be bought is something that’s Brady material.” After defense counsel had reviewed the redacted transcripts, Beasley’s counsel indicated that he intended to call Beasley’s first counsel as a witness. The government took the position that it should be permitted to use the complete transcripts, rather than the redacted versions that were provided to defense counsel, in cross-examining Beasley’s first counsel; Beasley’s counsel vehemently disagreed. Later, however, before the district court made a ruling on this dispute, Beasley’s counsel said: “In talking to Mr. Beasley, Your Honor, we’re not going to call [Beasley’s first counsel]. So the whole issue is just a dead issue.” Thus, Beasley cannot now complain, as he does in his appellate briefs, of the “risk” that the government would be permitted to cross-examine Beasley’s first counsel with information about which defense counsel were unaware. Moreover, our review of the record indicates that Beasley was not in any way prejudiced by the district court’s handling of this sensitive matter. Accordingly, this argument is -without merit. Finally, Beasley argues that the district court erred in denying his motion for a mistrial. During his cross-examination of Christopher, Beasley’s counsel asked Christopher how long he had known Beasley. In response, Christopher said: “I met him in prison in ... the ’70s.” Beasley’s counsel objected to this reference to Beasley having been in prison and moved for a mistrial. The district court denied the motion for a mistrial, but gave the following curative instruction: Ladies and gentlemen of the jury, the last remark of this witness about meeting someone in prison, you must disregard that. Pay no attention to it. It has nothing to do with this case. Put it out of your mind. The district court also instructed Christopher not to volunteer information about someone being in prison. This court has said: “While use of such words as ‘jail,’ ‘prison,’ ‘arrest’ are, generally" }, { "docid": "22352257", "title": "", "text": "that claim is well founded, strike the offending evidence. Next, unless the court believes that the evidence is seriously prejudicial and that a curative instruction will be an insufficient antidote, the court should proceed with the trial after instructing the jury to disregard the evidence. Declaring a mistrial is a last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury’s exposure to the evidence is likely to prove beyond realistic hope of repair. In this instance, Judge Devine followed the standard paradigm as closely as possible, considering appellants’ delay in offering the mistrial motion. Three factors persuade us that he handled the situation in an appropriate manner. First, courts have long recognized that, within wide margins, the potential for prejudice stemming from improper testimony or comments can be satisfactorily dispelled by appropriate curative instructions. See, e.g., United States v. Figueroa, 900 F.2d 1211, 1216 (8th Cir.), cert. denied 496 U.S. 942, 110 S.Ct. 3228, 110 L.Ed.2d 675 (1990); United States v. Ferreira, 821 F.2d 1, 5-6 (1st Cir.1987); United States v. Cirrincione, 780 F.2d 620, 635 (7th Cir.1985). The instructions given here pass the test of appropriateness; indeed, appel lants have not suggested any way in which they might have been improved. Second, Judge Devine did not allow sores to fester. Rather, he halted Commander Gerry’s testimony in midstream and instructed the jurors to discard the faulty evidence. Swiftness in judicial response is an important element in alleviating prejudice once the jury has been exposed to improper testimony. See, e.g., United States v. Pryor, 960 F.2d 1, 2-3 (1st Cir.1992); United States v. Hernandez, 891 F.2d 521, 523 (5th Cir.1989), cert. denied, 495 U.S. 909, 110 S.Ct. 1935, 109 L.Ed.2d 298 (1990). In this case, the judge could scarcely have acted more celeritously. [47] Third, appellate courts inquiring into the effectiveness of a trial judge’s curative instructions should start with a presumption that jurors will follow a direct instruction to disregard matters improvidently brought before them. See United States v. Olano, — U.S. -, -, 113 S.Ct. 1770," }, { "docid": "5813516", "title": "", "text": "of prejudice when it sustained the appellant’s contemporaneous objection and instructed the jury to ignore the offending statement. See, e.g., id. at 1185. 2. At trial, Figueroa stated that she left Puerto Rico for Milwaukee “because [she] found out that on August 10th the crew and the boat had been arrested in St. Maarten.” In summation, the prosecutor put a twist on this testimony, suggesting that Figueroa, after betraying the conspiracy by giving information to Agent Ayala, fled to Milwaukee “to protect herself.” The appellant objected, arguing that the statement implied that Figueroa feared that those conspirators still at large (or their cohorts) might attempt to do her harm. The trial court sustained the objection and cautioned the jury that the “statement is stricken and you should not take it in consideration for anything in this case.” The court simultaneously denied the appellant’s motion for a mistrial. Viewed in light of the copious evidence of guilt that permeates the record, we cannot say that this remark warrants reversal. Though the prosecutor’s statement was untoward, its impact could not have been great. The phrase “to protect herself’ is inherently ambiguous, and there was no intimation that the witness feared that the defendant might try to injure her. We think that, on balance, the objectionable phrase represents no more than an isolated comment, unlikely to smear the appellant with facts not in evidence, and that the judge’s curative instruction sufficed to quell any prejudice. We therefore reject the appellant’s plaint that the wayward comment requires us to set aside his conviction. On the same basis, we likewise reject his plaint that the district court erred in failing to grant his motion for a mistrial. See United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994) (explaining that “it is only rarely — and in extremely compelling circumstances — that an appellate panel, informed by a cold record, will venture to reverse a trial judge’s on-the-spot decision that the interests of justice do not require aborting an ongoing trial”), cert. denied, - U.S. -, 115 S.Ct. 919, 130 L.Ed.2d 799 (1995). 3. The" }, { "docid": "2293283", "title": "", "text": "testimony had been admitted as evidence of the conspiracy that Freeman could not get a fair trial on the witness tampering charges. Second, the trial court had exacerbated the prejudicial effect of the conspiracy evidence by allowing the government to present the hearsay testimony of a coconspirator, only to strike that evidence once it determined that the government had failed to show the existence of a conspiracy by a preponderance of the evidence. Third, even if the court properly submitted the conspiracy charge to the jury, the “bad acts” evidence admitted in support of that charge substantially prejudiced the jury’s consideration of the witness tampering charges. As with any review of a denial pi a motion for a mistrial, we consider the totality of the circumstances to determine whether the defendant has demonstrated the kind of “clear” prejudice that would render the court’s denial of his motion for a mistrial a “manifest abuse of discretion.” United States v. Torres, 162 F.3d 6, 12 (1st Cir.1998). In conducting this inquiry, we are mindful that the trial court has a “superior point of vantage,” and that “it is only rarely — and in extremely compelling circumstances — that an appellate panel, informed by a cold record,-will venture to reverse a trial judge’s on-the-spot decision.” United States v. Fierro, 32 F.3d 611, 617 (1st Cir.1994). Where “a curative instruction is promptly given, a mistrial is warranted only in rare circumstances implying extreme prejudice.” Torres, 162 F.3d at 12 (emphasis added). This is so because a mistrial is viewed as a “last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury’s exposure to the evidence is likely to prove beyond realistic hope of repair.” United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir.1993). We conclude that the trial court did not abuse its discretion by denying Freeman’s motion for a mistrial for the following reasons: (A) the court properly denied the motion for a judgment of acquittal on the conspiracy charge; (B) the minimal hearsay statements of a coconspirator, later stricken" }, { "docid": "5813517", "title": "", "text": "impact could not have been great. The phrase “to protect herself’ is inherently ambiguous, and there was no intimation that the witness feared that the defendant might try to injure her. We think that, on balance, the objectionable phrase represents no more than an isolated comment, unlikely to smear the appellant with facts not in evidence, and that the judge’s curative instruction sufficed to quell any prejudice. We therefore reject the appellant’s plaint that the wayward comment requires us to set aside his conviction. On the same basis, we likewise reject his plaint that the district court erred in failing to grant his motion for a mistrial. See United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994) (explaining that “it is only rarely — and in extremely compelling circumstances — that an appellate panel, informed by a cold record, will venture to reverse a trial judge’s on-the-spot decision that the interests of justice do not require aborting an ongoing trial”), cert. denied, - U.S. -, 115 S.Ct. 919, 130 L.Ed.2d 799 (1995). 3. The appellant also criticizes the prosecutor’s underscoring of the paucity of evidence supporting the appellant’s theory of the case. He objects particularly to the prosecutor pointing out that his character witnesses were not present in St. Maarten on the day of the denouement, and inviting the production of a percipient witness who could offer an alternative explanation of the events of August 10. The appellant’s point is that the prosecutor impermissibly drew attention to the appellant’s silence. See United States v. Lilly, 983 F.2d 300, 306-07 (1st Cir.1992) (reaffirming that the Fifth Amendment prohibits a prosecutor, directly or indirectly, from asking the jury to draw a negative inference from a defendant’s silence). These statements did not transgress the appellant’s Fifth Amendment rights. When a defendant suggests that a prosecutor adverted to his silence, we must examine the challenged statement in context. See id. at 307. The key to our inquiry is “whether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and" }, { "docid": "8250913", "title": "", "text": "seconds and two dozen words in a nearly six-month marathon of a trial. See Johnson, 26 F.3d at 679 (references to codefendant’s guilty plea harmless beyond a reasonable doubt because the forbidden references were “relatively innocuous in that they occurred solely during the opening statements of a trial that produced nearly 1500 pages of testimony”); Blevins, 960 F.2d at 1260-65 (same conclusion where guilty pleas of six nontestifying codefendants were briefly referenced three times during a seven-day trial). Third, the district court timely responded to the improper statements, instructing the jury to disregard Graham’s statement the day after it happened (refraining from doing so earlier only at the request of defense counsel), and immediately striking Howard’s statement. See Carter v. United States, 281 F.2d 640, 641-42 (D.C.Cir.1960) (reference to guilty plea of codefendant was harmless in part because the trial court immediately struck the remark and instructed the jury to disregard it). The court, moreover, reinforced those specific curative measures with a general instruction at the close of trial admonishing the jury to disregard stricken testimony in reaching its verdict. We presume that juries follow the court’s curative instructions unless there is reason to doubt compliance in a particular case. See Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987); McLendon, 378 F.3d at 1114 & n. 6. There is no such reason here. Fourth and finally, given the strength and breadth of the evidence against appellants, it is implausible that those two obscure comments made in passing had any impact at all on the jury’s deliberations. See Johnson, 26 F.3d at 677 (The “general principle” that mention of a prior conviction is reversible error “gives way when the evidence against the defendant(s) is so overwhelming that any error is rendered harmless beyond a reasonable doubt.”); Blevins, 960 F.2d at 1264 (finding harmless error where the evidence was overwhelming). Accordingly, “in light of the overwhelming evidence of guilt in this case, any prejudice which may have remained despite the judge’s admonition to the jury may be said to be harmless.” Carter, 281 F.2d" }, { "docid": "5813515", "title": "", "text": "and the district court interrupted the prosecutor’s summation with an admonition to the jury that “[t]he objection was sustained so the statement is stricken and should not be taken in consideration by you.” We have consistently held that an immediate curative instruction dilutes (and usually fully dissipates) the potential prejudice from an improper statement. See, e.g., United States v. Rivera-Gomez, 67 F.3d 993, 998 (1st Cir.1995); Sepulveda, 15 F.3d at 1185. Viewing this statement in context, see Sepulveda, 15 F.3d at 1187, we see no reason why the usual praxis should not apply. The appellant’s theory of the ease, as expressed in his opening statement, was that he was “not part of [the] criminal organization.” By like token, defense counsel acknowledged the conspiracy and referred to it in summation as an “orchestra,” conducted by Maisonet and others, in which appellant did not even play second fiddle. Given the appellant’s stated theory of the case, the prosecutor’s remark cannot easily be labelled as either “inappropriate” or “harmful.” And, moreover, the lower court cured any reasonable possibility of prejudice when it sustained the appellant’s contemporaneous objection and instructed the jury to ignore the offending statement. See, e.g., id. at 1185. 2. At trial, Figueroa stated that she left Puerto Rico for Milwaukee “because [she] found out that on August 10th the crew and the boat had been arrested in St. Maarten.” In summation, the prosecutor put a twist on this testimony, suggesting that Figueroa, after betraying the conspiracy by giving information to Agent Ayala, fled to Milwaukee “to protect herself.” The appellant objected, arguing that the statement implied that Figueroa feared that those conspirators still at large (or their cohorts) might attempt to do her harm. The trial court sustained the objection and cautioned the jury that the “statement is stricken and you should not take it in consideration for anything in this case.” The court simultaneously denied the appellant’s motion for a mistrial. Viewed in light of the copious evidence of guilt that permeates the record, we cannot say that this remark warrants reversal. Though the prosecutor’s statement was untoward, its" }, { "docid": "7146255", "title": "", "text": "1965). We find, moreover, no error in the court’s instruction relating to the defense of entrapment. Not only does the instruction properly set forth all the constituent elements of the defense in clear and understandable language, but also that portion of it, which appellant finds objectionable, is encompassed in his own “requested instruction No. H.” IV. Appellant alleges error in the district court’s refusal to grant a mistrial following certain remarks by the government informer, Miss Robinson, on direct examination. He contends this testimony improperly placed his character in issue in the case. The record reveals the following questions and answers: “Q. What, if anything, did he do? “A. When he came to the room? “Q. Yes. After he came to the room [room 221 of the Diplomat Motel]. “A. The first thing he did was to take a gun from beneath his belt.” Immediately after this remark had been volunteered by the witness, the district court, upon objection, excluded the testimony and instructed the jury to completely disregard it. Despite the court’s action, appellant nonetheless contends that this remark was so highly prejudicial and inflammatory as to warrant the granting of a mistrial. We agree that the 'witness’s remark was objectionable. In view of the corrective measures taken by the court to dissipate the objectionable matter, however, we do not believe it was so prejudicial as to be deserving of a mistrial. There is no indication from the record that the government sought to elicit testimony of this nature. Certainly where, as here, the evidence of guilt is clear and convincing and the improper testimony has been stricken from the jury’s consideration, the refusal to declare a mistrial does not constitute an abuse of discretion. Cf. United States v. Phillips, 375 F.2d 75, 81 (7th Cir. 1967), cert. denied, 389 U.S. 834, 88 S.Ct. 40, 19 L.Ed.2d 95 (1967); Gresham v. United States, 374 F.2d 389-390 (8th Cir. 1967); Evenson v. United States, 316 F.2d 94, 95-96 (8th Cir. 1963). V. Complaint is made of the admission into evidence of the capsules of heroin. Appellant argues that they were" }, { "docid": "15333838", "title": "", "text": "Torres, 162 F.3d at 12; United States v. Sepulveda, 15 F.3d 1161, 1185 (1st Cir.1993). The record provides us with no basis for doubting that the jury did so here. In sum, the mention of the stun gun was an isolated incident, and the trial judge— who saw and heard the witness’s lapsus linguae at first hand and had an opportunity to evaluate the jury’s reaction — concluded that the slip was not particularly consequential. Considering the whole of the record, this conclusion seems eminently reasonable. Apart from sheer speculation, there is nothing to suggest that the unfortunate allusion to the stun gun irretrievably poisoned the well. We hold, therefore, that the district court’s decision to eschew a mistrial was well within the encincture of its discretion. C. The Alleged Instructional Error. The appellant’s remaining claim relates solely to his conviction on count 2 of the indictment. To prove a violation of the statute of conviction, 18 U.S.C. § 1029(a)(3), the government must show that a defendant “knowingly and with intent to defraud possesse[d] fifteen or more ... counterfeit or unauthorized access devices.” In this case, the appellant asked the district court to instruct the jurors that they had to agree on which fifteen devices (i.e., credit cards) were in his possession. The court refused to do so (although it did grant the appellant’s request for a supplemental instruction that required jury unanimity as to which cards were unauthorized). The appellant interposed a timely objection, see Fed.R.Crim.P. 30(d), and now assigns error to the trial court’s refusal of the desired instruction. A party’s entitlement to a unanimity instruction presents a question of law. Consequently, the district court’s answer to that question engenders de novo review. United States v. Pitrone, 115 F.3d 1, 4 (1st Cir.1997). The requirement that a federal jury be unanimous is a bedrock principle of our criminal jurisprudence. See Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999); Schad v. Arizona, 501 U.S. 624, 634 n. 5, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); see generally United States v. Correa-Ventura, 6" }, { "docid": "15333837", "title": "", "text": "rejected this hypothesis. So do we. When a witness strays into forbidden territory, the usual remedy is to strike the wayward remark and instruct the jury to disregard it. See, e.g., United States v. Bradshaw, 281 F.3d 278, 284 (1st Cir.2002); Fierro, 32 F.3d at 617. In all but the rare case, that remedy, if properly executed, will suffice to safeguard the aggrieved party’s rights. Perscrutation of the record persuades us that this case falls within the general rule, not within the long-odds exception to it. Four factors heavily influence our judgment. First, the witness’s allusion to the stun gun, taken in context, was rather innocuous. Second, the lower court supportably found that the comment was inadvertent. Third, the court’s response was swift and pointed. It struck the offending reference and gave a blunt curative instruction on the spot. The appellant did not fault the wording of the instruction at the time and does not do so now. Finally, there is a strong presumption that jurors will follow clear instructions from the presiding judge. See Torres, 162 F.3d at 12; United States v. Sepulveda, 15 F.3d 1161, 1185 (1st Cir.1993). The record provides us with no basis for doubting that the jury did so here. In sum, the mention of the stun gun was an isolated incident, and the trial judge— who saw and heard the witness’s lapsus linguae at first hand and had an opportunity to evaluate the jury’s reaction — concluded that the slip was not particularly consequential. Considering the whole of the record, this conclusion seems eminently reasonable. Apart from sheer speculation, there is nothing to suggest that the unfortunate allusion to the stun gun irretrievably poisoned the well. We hold, therefore, that the district court’s decision to eschew a mistrial was well within the encincture of its discretion. C. The Alleged Instructional Error. The appellant’s remaining claim relates solely to his conviction on count 2 of the indictment. To prove a violation of the statute of conviction, 18 U.S.C. § 1029(a)(3), the government must show that a defendant “knowingly and with intent to defraud possesse[d] fifteen" }, { "docid": "3199289", "title": "", "text": "district court erred in failing to grant a mistrial after a government witness violated an order in limine and testified that appellant was involved in the manufacture of methamphetamine. As a general rule, it is within the discretion of the district court to decide whether a trial has been so tainted by prejudicial testimony that a mistrial should be declared and the decision will only be reviewed for an abuse of discretion. United States v. Encee, 256 F.3d 852, 854 (8th Cir.2001). In addition, the admission of a prejudicial statement is “ ‘ordinarily cured by striking the testimony and instructing the jury to disregard the remark.’ ” United States v. Coleman, 349 F.3d 1077, 1087 (8th Cir.2003) (quoting United States v. Muza, 788 F.2d 1309, 1312 (8th Cir.1986)), cert. denied, 541 U.S. 1080, 124 S.Ct. 2432, 158 L.Ed.2d 996 (2004). However, even if a curative instruction is given, this court must still determine whether the verdict was “substantially swayed” by the prejudicial comment. Id. In making this determination, we must evaluate whether a curative instruction was sufficient in the context of the entire trial, and weigh the prejudice against the strength of the government’s evidence. Id. This court will affirm a conviction, despite the introduction of an inadvertent prejudicial comment, where there was “substantial evidence” of guilt. Id. Although the testimony about methamphetamine was improper, the district court took prompt remedial action to alleviate any possible prejudice by striking the testimony and giving a curative instruction immediately after the misconduct occurred. In addition, the deputy’s reference to appellant’s alleged drug involvement was an isolated incident. While appellant claims that the government elicited testimony about a video monitoring system outside appellant’s house and repeatedly discussed the search warrant for appellant’s residence, the jury never heard of any relationship between appellant’s alleged drug involvement and the monitoring system or search warrant. Thus, there is no reasonable basis to believe that these references could have improperly tainted the jury’s deliberation. Moreover, because there was substantial evidence of appellant’s guilt, any error in the failure to declare a mistrial was harmless. As noted previously," }, { "docid": "22352256", "title": "", "text": "a slightly closer question. Although the district court struck Commander Gerry’s half-completed testimony and told the jurors to disregard what they had heard, appellants assert that the court erred in refusing to grant a mistrial. At the core of appellants’ argument lies their insistence that the judge did no more than hold a farthing candle to the sun; once Gerry’s views were aired, words from the bench, no matter how stentorian the judge’s tone, could not exorcise the resultant prejudice. Granting or denying a motion for a mistrial is a matter committed to the trial court’s discretion. See De Jongh, 937 F.2d at 3; United States v. Chamorro, 687 F.2d 1, 6 (1st Cir.), cert. denied 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613 (1982). The exercise of that discretion always must be informed by the circumstances of the particular case. When, as now, a motion to declare a mistrial has its genesis in a claim that improper evidence came before the jury, the court must first weigh the claim of impropriety and, if that claim is well founded, strike the offending evidence. Next, unless the court believes that the evidence is seriously prejudicial and that a curative instruction will be an insufficient antidote, the court should proceed with the trial after instructing the jury to disregard the evidence. Declaring a mistrial is a last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury’s exposure to the evidence is likely to prove beyond realistic hope of repair. In this instance, Judge Devine followed the standard paradigm as closely as possible, considering appellants’ delay in offering the mistrial motion. Three factors persuade us that he handled the situation in an appropriate manner. First, courts have long recognized that, within wide margins, the potential for prejudice stemming from improper testimony or comments can be satisfactorily dispelled by appropriate curative instructions. See, e.g., United States v. Figueroa, 900 F.2d 1211, 1216 (8th Cir.), cert. denied 496 U.S. 942, 110 S.Ct. 3228, 110 L.Ed.2d 675 (1990); United States v. Ferreira, 821" }, { "docid": "15333835", "title": "", "text": "We conclude that the police officer who stopped and questioned the appellant had reasonable suspicion for doing so; that the scope of the stop was within appropriate limits; that by the time the police arrested the appellant, reasonable suspicion had burgeoned into probable cause; and that the appellant knowingly and voluntarily consented both to a search of the van and to post-arrest questioning. Consequently, we hold that the lower court did not err in denying the appellant’s motion to suppress. B. The Mistrial Motion. We turn next to the appellant’s assertion that the trial judge erroneously denied his motion for a mistrial. We review the denial of a mistrial motion for abuse of discretion. United States v. Torres, 162 F.3d 6, 12 (1st Cir.1998); United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994). The pertinent facts are not disputed. The district court had sustained the appellant’s objection to the admission of any evidence of the discovery of a Taser stun gun in the van. See Fed.R.Evid. 403 (authorizing the court to exclude evidence if its probative value is substantially outweighed by its unfairly prejudicial effect). One of the police officers nevertheless let slip a mention of the gun during his trial testimony. The appellant objected and sought a mistrial. The district court struck the offending portion of the answer and gave the jury an emphatic curative instruction: “The stun gun has nothing to do with this case.... So you should not infer that there is anything improper about the presence of the stun gun there because there wasn’t, and you should not consider it in your deliberations because it had nothing to do with this case.” Having taken these prophylactic measures, the court refused to declare a mistrial. The appellant assigns error to this ruling, asserting that no instruction could cure the prejudice inherent in the mere mention of the stun gun. In his view, that reference, in conjunction with Joy’s testi mony about the appellant’s alleged attempt to flee, inevitably would have led the jury to believe that the appellant harbored a propensity for violence. The district court" }, { "docid": "7863194", "title": "", "text": "the defendants’ foreknowledge of the charges lodged against them or their ability to prepare a defense. Consequently, the variance did not impair the defendants’ substantial rights. 6. The Mistrial Motion. During the trial, Jesus Gambora testified that he had previously identified Torres in a photo spread. This testimony was erroneous. Torres promptly objected and moved for a mistrial. The district court denied the motion, but struck the comment and gave an immediate curative instruction. The appellants now argue that the lower court should have declared a mistrial. We think not. We review a district court’s refusal to declare a mistrial for manifest abuse of discretion and will uphold the court’s ruling unless the movant demonstrates a clear showing of prejudice. See United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir.1995); United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir.1993). Where, as here, a curative instruction is promptly given, a mistrial is warranted only in rare circumstances implying extreme prejudice. See United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994). In this instance, several factors point to upholding the district court’s ukase. First, Torres does not suggest any way in which the curative instruction could have been improved, and he did not contemporaneously object to its content. Second, in view of the trial testimony, the witness’s misstatement was not particularly consequential. Jurors are presumed to follow the trial judge’s instructions, see Sepulveda, 15 F.3d at 1185, and that presumption has not been rebutted here. We need go no further. Having reviewed the record with care, we are fully satisfied that the defendants were fairly tried and justly convicted. Affirmed. . To be sure, a person may have an interest in residential premises other than his own abode sufficient to warrant Fourth Amendment protection. See Minnesota v. Olson, 495 U.S. 91, 98-99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Rakas, 439 U.S. at 142, 99 S.Ct. 421. Here, however, the record indicates that Torres was a casual visitor to the apartment — nothing more — and, thus, not entitled to a legitimate expectation of privacy. . While plain error" } ]

[ { "docid": "22227298", "title": "", "text": "subsequent civil rights action, in part “because the union usually has exclusive control over presentation of the grievance, [and therefore] the employee’s opportunity to be compensated for a constitutional deprivation might be lost merely because it was not in the union’s interest to press his claim vigorously.” Ryan, 13 F.3d at 347 (quotation marks and citation omitted). We think the same can be said of a union’s interests in a subsequent arbitration when the employee first pursues a civil rights action. Therefore, the district court did not err by determining claim preclusion was not appropriate in this instance and did not abuse its discretion in denying the injunctive and declaratory relief sought. C. Attorney Fees: Case No. 99-6101 After the district court granted the defendants’ motions for summary judgment, the defendants jointly moved for the award of attorney fees pursuant to 42 U.S.C. § 1988. While a prevailing plaintiff ordinarily is entitled to attorney fees, see Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), a prevailing defendant in a civil rights action may recover attorney fees only “if the suit ‘was vexatious, frivolous, or brought to harass or embarrass the defendant.’ ” Utah Women’s Clinic, Inc. v. Leavitt, 136 F.3d 707, 709 (10th Cir.1998) (per curiam) (quoting Hensley, 461 U.S. at 429 n. 2, 103 S.Ct. 1933). This is a difficult standard to meet, to the point that rarely will a case be sufficiently frivolous to justify imposing attorney fees on the plaintiff. See Clajon Production Corp. v. Petera, 70 F.3d 1566, 1581 (10th Cir.1995). The dismissal of claims at the summary judgment stage does not automatically meet this stringent standard. See Jane L. v. Bangerter, 61 F.3d 1505, 1513 (10th Cir.1995). The district court specifically avoided finding Captain Mitchell brought the lawsuit for an improper purpose. The district court noted “[t]he Order only resolved that no legal remedy [was] available to [Captain Mitchell] under the facts as supported by the evidence.” As noted earlier, the district court determined Captain Mitchell’s response to the summary judgment motion was inadequate, but that is an entirely" } ]

[ { "docid": "3089123", "title": "", "text": "to the Section 1983 claim, the VanderVossens claimed they were entitled to a judgment on the ground that, as private citizens, they did not act under color of state law. The City Defendants, for their part, claimed they were entitled to a judgment on the grounds that the Seeds failed to assert the actual deprivation of a federal right and, even if they had done so, the City Defendants were nevertheless entitled to qualified immunity. This Court granted the Defendants’ motions on the Section 1983 claim, concluding that the Seeds had failed to present evidence establishing the actual deprivation of a federal right. Before reaching that conclusion, however, the Court determined that the Seeds had presented disturbing evidence that the Defendants conspired to harass them because Mr. Seeds opposed an annexation request made by the Van-derVossens to the City Council. Upon dismissing the Section 1983 claim, the Court remanded to state court the Seeds’ common law claims. The Defendants have now filed motions for attorney fees. II. DISCUSSION A. 42 U.S.C. § 1988 The Defendants seek their attorney fees under 42 U.S.C. § 1988, which gives courts the discretion to award reasonable attorney fees to the prevailing party in a civil rights lawsuit. The standard for awarding attorney fees to a prevailing defendant in a civil rights lawsuit differs significantly from the standard for awarding attorney fees to a prevailing plaintiff. Whereas “a prevailing plaintiff ordinarily is entitled to attorney fees,” Mitchell v. City of Moore, 218 F.3d 1190, 1203 (10th Cir.2000), a prevailing defendant should recover attorney fees only where the “plaintiffs action was frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). The Tenth Circuit has stressed that only in “rare circumstances” is “a suit ... truly frivolous so as to warrant an award of attorney’s fees to the defendant.” Clajon v. Petera, 70 F.3d 1566, 1581 (10th Cir.1995). 1. Summary Judgment The Defendants claim they should recover their attorney fees because the Court’s award of summary judgment in their favor allegedly proves that the Seeds’" }, { "docid": "15995705", "title": "", "text": "court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.... Houston v. Norton, 215 F.3d 1172, 1174 (10th Cir.2000). “[T]he term ‘vexatious’ in no way implies that the plaintiffs subjective bad faith is a necessary prerequisite to a fee award against him.... [A] district court may in its discretion award attorney’s fees to a prevailing defendant ... upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co., 434 U.S. at 421, 98 S.Ct. 694; see also Prochaska v. Marcoux, 632 F.2d 848, 853-54 (10th Cir.1980). Praxair claims Grynberg’s persistence in this lawsuit was clearly frivolous after it became apparent Praxair had no responsibility or involvement with Conoco’s royalty payments. The district court’s order denying Praxair’s request for attorney fees states: Section 3730(d)(4) authorizes the award of attorney’s fees and expenses “if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for the purposes of harassment.” While the claims in this case were properly dismissed on summary judgment, review of the record in this case leaves me unable to find that Relator’s Complaint was clearly frivolous, clearly vexatious, or brought primarily for the purposes of harassment. (R. Supp.App. at 95-96.) Grynberg contends we must assume the district court considered all relevant theories because it set forth the correct standard and referenced its review of the entire record. We disagree. The district court did not hold a hearing on this matter and the truncated order provides no guidance as to whether Praxair’s theory was considered. We recognize that the Christians-burg standard is “a difficult standard to meet, to the point that rarely will a case be sufficiently frivolous to justify imposing attorney fees on the plaintiff.” Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir.2000). However, the Supreme Court has instructed that the district court review the entire course of the litigation in making this" }, { "docid": "8908030", "title": "", "text": "of Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (holding that an unsuccessful civil rights plaintiff in a Title VII action can be liable for attorney's fees only if the court finds \"his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so\"). The DOC does not challenge on appeal the district court's reconsidered decision to disallow attorney's fees in this case. However, English now challenges the district court's award of $2,119.80 in costs to the DOC pursuant to 28 U.S.C. § 1920. We review the district court's award of court costs under § 1920 for abuse of discretion. See Mitchell v. City of Moore, 218 F.3d 1190, 1198 (10th Cir.2000). The district court rightly concluded that a civil rights litigant should look to the general federal statutory entitlement for court costs under § 1920. See Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1258 (\"For items not reimbursable as at torney’s fees under § 1988, the general costs statute, 28 U.S.C. § 1920, is controlling.” (quotations and citations omitted)). Further, despite the protections established for civil rights plaintiffs under Christiansburg Garment, a civil rights plaintiff is not entitled to heightened protection from taxation of costs pursuant to § 1920. See Mitchell, 218 F.3d at 1204 (upholding the “traditional presumption in favor of awarding costs, regardless of whether the prevailing party is a defendant in a civil rights case.”). “[T]he burden is on the prevailing plaintiffs to establish the amount of compensable costs and expenses to which they are entitled. Prevailing parties necessarily assume the risks inherent in a failure to meet that burden.” Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1208 (10th Cir.1986); see also Case, 157 F.3d at 1258. The DOC supported its motion with a spreadsheet page showing disbursements to couriers, a court reporter and other service providers. The spreadsheet contains a list of names of these service providers, the amounts paid, and a blanket assertion that the costs incurred are among those allowed under § 1920." }, { "docid": "10290664", "title": "", "text": "by 85% for the firm of Berle, Kass & Case, and 75% for the other plaintiffs’ counsel, yielding an adjusted fee award of $69,656.37. II. DEFENDANTS’ ATTORNEYS’ FEES Defendants have submitted a request for .attorneys’ fees and expenses total-ling $300,000.77. Prevailing defendants are granted attorneys’ fees under § 1988 only in limited circumstances: A prevailing defendant may recover an attorney’s fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant. See HR Rep. No. 94r-1558, p. 7 (1976); Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 [98 S.Ct. 694, 700, 54 L.Ed.2d 648] (1978) (“[A] district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII ease upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.”) Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2, 103 S.Ct. 1933, 1937 n. 2, 76 L.Ed.2d 40 (1983); Figures v. Board of Public Utilities, 967 F.2d 357, 362 (10th Cir.1992). This court has determined that plaintiffs’ case involved “unrelated claims,” which should be treated as if they had been raised in separate lawsuits. To the extent these claims are frivolous, or meritless, defendants may receive attorneys’ fees involved in responding to them under 42 U.S.C. § 1988. See Hensley, 461 U.S. at 435 n. 10, 103 S.Ct. at 1940 n. 10. An additional basis for such an award is found in the inherent powers of the court. Chambers v. NASCO, Inc., — U.S. -, ---, 111 S.Ct. 2123, 2133-34, 115 L.Ed.2d 27 (1991). To the extent that such claims were unreasonable and prosecuted in bad faith, defendants also may be entitled to an award under 28 U.S.C. § 1927 and Federal Rule of Civil Procedure 11. A. Defendants’ Time Records and Fees Defendants’ time records are clear, concise, and specific. It is also apparent that defendants’ counsel exercised appropriate billing judgment before submitting their records to the court. They did not bill for excessive travel or public relations time, and, with few exceptions, time entries for hearings, meetings," }, { "docid": "8840785", "title": "", "text": "fees to plaintiffs and that it realized that the courts have taken cognizance of this difference by applying special criteria to cases involving requests by defendants for attorney’s fees. Congress took note that the courts have been hesitant to award attorney’s fees to a defendant unless the plaintiff’s action was brought in bad faith or was vexatious, harassing, frivolous or, in the words of Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), unreasonable or without foundation. When Congress enacted § 1988, it was aware of the attitude with which the courts have traditionally approached fee requests by defendants and of the factors that the courts have weighed in considering such awards. Congress did not intend to impose a rigid requirement of bad faith vel non upon § 1988, but simply to ensure that the courts consider bad faith on the Government’s part as one relevant factor in exercising their discretion under the Act. It intended that the courts consider requests by prevailing defendants under § 1988 pursuant to the standards developed in the already existent general case law on awards of attorney’s fees to prevailing defendants. The decisional law on awards of attorney’s fees to prevailing defendants has largely developed in the area of civil rights litigation and it is, therefore, appropriate that we turn to that case law for guidance. In Christiansburg Garment Co. v. EEOC, supra, the Supreme Court articulated the standards which should be applied to requests by prevailing defendants for attorney’s fees under § 706(k) of Title VII, 42 U.S.C. § 2000e-5(k). Emphasizing the different equitable considerations governing awards of attorney’s fees to plaintiffs and defendants, the Court gave its general approval to the criteria applied in United States Steel Corp. v. United States, 519 F.2d 359, 363 (3d Cir. 1975), where fees were denied because the plaintiff’s action had not been “unfounded, meritless, frivolous, or vexatiously brought” and in Carrion v. Yeshiva University, 535 F.2d 722, 727 (2d Cir. 1976), which held that an attorney’s fee award to a successful defendant should be permitted" }, { "docid": "7861203", "title": "", "text": "does not show the nature or the amount of such costs at issue in the motion for attorneys’ fees and costs, nor do the defendants argue on appeal the nature or amount of those additional costs sought. We also observe that the defendants do not assert a separate basis for entitlement to an award of these unspecified costs independent from their asserted right to an award of reasonable attorneys’ fees. The district court considered the defendants’ motion without distinguishing the attorneys’ fees request from the present request for costs, and the defendants do not argue on appeal that the district court erred in considering those requests in tandem. In analyzing the merits of the defendants’ contention that they are entitled to attorneys’ fees and costs, we observe that the defendants base the first part of their argument on the FHAA provision granting district courts the discretion to award attorneys’ fees and costs to a “prevailing party.” See 42 U.S.C. § 3613(c)(2) (providing that “the court, in its discretion, may allow the prevailing party ... reasonable attorney’s fee[s] and costs”); Bryant Woods, 124 F.3d at 606. However, the Supreme Court has held that when an action involves a civil rights matter, and the prevailing party is a defendant, attorneys’ fees may be awarded by a district court only “upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Chris-tiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (construing § 706(k) of Title VII of the Civil Rights Act of 1964). This Court held in Bryant Woods that the above standard in Christiansburg also applies to attorneys’ fees requests for claims brought under the FHAA. 124 F.3d at 606. We hold that this standard is equally applicable to a request for an award of costs pursuant to the FHAA. See Taylor v. Harbour Pointe Homeowners Ass’n, 690 F.3d 44, 50-51 (2d Cir.2012) (analyzing prevailing defendants’ requests for attorneys’ fees and costs together under the Christiansburg standard in Fair Housing Act action). Citing Christiansburg, the" }, { "docid": "10062800", "title": "", "text": "instances of disruptive and vexatious conduct at trial and in pretrial filings, the court found sanctions warranted under both 28 U.S.C. § 1927 and Federal Rule of Civil Procedure 11. The court ordered attorney González to personally pay a third of the attorney’s fee award, or $64,936. The award of attorney’s fees against the plaintiffs was thereby reduced to $129,872. The plaintiffs moved for reconsideration of the two fee orders, which the court summarily denied. This timely appeal followed. II. We begin our analysis with the court’s award of fees under 42 U.S.C. § 1988. Though the parties to civil litigation are typically responsible for their own attorney’s fees under the so-called “American Rule,” see Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), section 1988 grants courts the discretion to award a “reasonable attorney’s fee” to the prevailing parties in suits under various civil rights statutes, including 42 U.S.C. § 1983. See 42 U.S.C. § 1988(b). As we often have recited, an award of fees in favor of a prevailing plaintiff in a civil rights suit is “the rule, whereas fee-shifting in favor of a prevailing defendant is the exception.” Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir.1994). A prevailing defendant may be awarded fees only “‘upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Rosselló-González v. Acevedo-Vilá, 483 F.3d 1, 6 (1st Cir.2007) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)). This standard for awarding attorney’s fees to prevailing defendants in a civil rights suit is difficult to meet, and rightly so. Congress granted parties the prospect of a reasonable attorney’s fee under 42 U.S.C. § 1988 to encourage the prosecution of legitimate civil rights claims; to award fees to prevailing defendants when the history of a case does not justify it undercuts that goal and chills civil rights litigation. See Foster v. Mydas Assocs., Inc., 943 F.2d 139, 146 (1st Cir.1991)." }, { "docid": "3637768", "title": "", "text": "expert on disparate impact. Although Dr. Brandon was not used because there were not enough persons for a proper statistical analysis, Dr. Brandon determined that because the City had promoted no African-Americans, then the Plaintiffs met the EEOC’s required 4/5’s rule. Finally, counsel thought that the testimony of the City’s Human Re source Director supported the Plaintiffs’ claims of discrimination. In August 2000, the Magistrate Judge presided as mediator at a settlement conference between the parties. At the conference, the Defendants 'did not offer any money or promotion to the Plaintiffs, but they did offer to waive approximately $400,000.00 in attorney’s fees if Plaintiffs abandoned their claims. According to the attorneys, prior to August 2000, no one including Defendants’ counsel had ever indicated that Plaintiffs’ suit was frivolous or brought in bad faith. II. ANALYSIS In their motion for fees and costs, Defendants seek attorney’s fees and costs pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1927, and this Court’s inherent power. The Magistrate Judge recommended an award of fees under 42 U.S.C. § 2000e-6(k), 42 U.S.C. § 1988, and 28 U.S.C. § 1927. A. Entitlement to Fees as a Prevailing Party under 42 U.S.C. § 1988 Ordinarily, a prevailing plaintiff in Title VII cases “is to be awarded attorney’s fees in all but special circumstances.” Christiansburg Garment Co. v. E.E.O.C., 484 U.S. 412, 417, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). By contrast, a more stringent standard applies to prevailing defendants who may be awarded attorney’s fees only when a court finds that the plaintiffs claim was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 421, 98 S.Ct. 694. This standard applies equally to awards of attorney’s fees sought under 42 U.S.C. § 1988 by prevailing civil rights defendants. Head v. Medford, 62 F.3d 351, 355 (11th Cir.1995) (citing Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Section 1988(b) permits a court to award attorney’s fees to the “prevailing party” for actions brought “to enforce a provision of sections 1981, 1982, 1983, 1985, and" }, { "docid": "7295956", "title": "", "text": "harassment and retaliation involved the placement of a photocopier near the shared computer. None of these matters constitutes an issue of public concern; they are all individual personal complaints about working conditions. The Department retains the power to fashion an appropriate response to these issues in the workplace, “[T]he First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Connick, 461 U.S. at 149, 103 S.Ct. 1684. The district court appropriately granted judgment as a matter of law on Tang’s First Amendment claim. C. Attorney’s Fees Title VII and § 1988 provide the court with the power to award attorney’s fees to prevailing parties in employment discrimination and civil rights actions, respectively. See 42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988. Although courts are most often faced with motions for attorney’s fees by prevailing plaintiffs, the statutes empower courts to grant fee requests by whichever party prevails. While decisions to grant defendants their fees are, and should be, rare, “a district court may in its discretion award attorney’s fees to a prevailing defendant ... upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). In determining whether this standard has been met, the court must assess the claim at the time the complaint was filed, and must avoid the post-hoe reasoning that, because the plaintiff did not ultimately prevail, the claim must have been frivolous, unreasonable or without foundation. See Andrade v. Jamestown Hous. Auth, 82 F.3d 1179, 1192 (1st Cir.1996) (citing Christiansburg, 434 U.S. at 421-22, 98 5.Ct. 694). After considerable deliberation, the district court reluctantly granted the Department’s motion for attorney’s fees on the ground that the action was frivolous. We review its decision for abuse of discretion. See Casa Marie Hogar Geriatrico, Inc. v. Riveras-Santos, 38 F.3d 615, 618 (1st Cir.1994). Under this standard, we may not simply substitute our judgment for that of the district court; we will" }, { "docid": "12679336", "title": "", "text": "defendant should be approved is set forth in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). In that case, the Supreme Court held that “a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII ease upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 421, 98 S.Ct. at 700. Although Christiansburg Garment dealt with Title VII fee awards, the Supreme Court has subsequently indicated that “[t]he legislative history of § 1988 indicates that Congress intended that ‘the standards for awarding fees be generally the same as under the fee provisions [contained in Title VII] of the 1964 Civil Rights Act.”’ Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983). Thus, the analysis adopted by Christiansburg Garment in determining whether to award.attorney’s fees to a prevailing party is equally applicable to the matter before us. In Christiansburg Garment, the prevailing party was a defendant, whereas in the case at bar the prevailing parties are intervening defendants. The question whether an intervening defendant may also be considered a prevailing party entitled to an award of attorney’s fees is not free from doubt. We are prepared to assume, arguendo, that the answer is in the affirmative. See Donnell v. United States, 682 F.2d 240, 245-49 (D.C.Cir.1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1190, 75 L.Ed.2d 436 (1983). However, for the reasons given in Donnell, we would think that such an award would be justified only where the intervening defendant had clearly made a substantial contribution to the successful result. And, in any event, the district court’s discretionary award of attorney’s fees would be justified only in those situations where, under the Christiansburg Garment standard, the plaintiffs “claim was frivolous, unreasonable, or groundless, or [when] the plaintiff continued to litigate after it clearly became so.” 434 U.S. at 422, 98 S.Ct. at 701. Plaintiff argues that the award of attorney’s fees by the district" }, { "docid": "18213231", "title": "", "text": "attorney’s fees is based upon section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), which provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs____ A prevailing Title VII plaintiff is ordinarily to be awarded attorney’s fees under this provision unless special circumstances would make such an award unjust. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975). There are two policy reasons for awarding attorney’s fees to a prevailing plaintiff: first, a Title VII plaintiff is the chosen instrument of Congress to enforce the civil rights laws in the private sector, and second, an award of attorney’s fees to a prevailing plaintiff is made against a violator of federal law. See Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 418, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978). Because these equitable considerations are absent in the case of a prevailing Title VII defendant, the Supreme Court has declared that a prevailing defendant is entitled to attorney’s fees only in very narrow circumstances: In sum, a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation ... or that the plaintiff continued to litigate after it clearly became so. Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700; see also Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2, 103 S.Ct. 1933, 1937 n. 2, 76 L.Ed.2d 40 (1983) (prevailing defendant may recover attorney’s fees only when suit vexatious, frivolous, or brought to harass or embarrass defendant). This standard adequately deters the bringing of frivolous lawsuits without inhibiting the bringing of meritorious ones. Therefore, assuming that Linden was a prevailing Title VII defendant, it would be entitled to attorney’s fees only if Eichman’s suit was frivolous, unreasonable, or without foundation, or if Eichman continued to litigate after it clearly became so. The decision whether to award attorney’s" }, { "docid": "7150702", "title": "", "text": "applied to prevailing defendants, plaintiff Kirchberg’s original suit was neither frivolous, vexatious, nor brought in bad faith, and because Mrs. Feenstra’s victory conferred no benefit on any broader class, but benefitted only herself. Mrs. Feenstra appeals that decision to this Court. ANALYSIS: Under the “American Rule,” each party is generally required to bear its own attorney’s fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). While recognizing the wisdom of this general rule, Congress has seen fit to enact a number of specific provisions providing for the award of attorney’s fees to the prevailing party under selected statutes protecting various federal rights. See Alyeska, 95 S.Ct. at 1623 n. 33 for a list of these statutes. Since Alyeska was handed down, Congress has enacted more than ninety statutes authorizing the award of attorney’s fees in specified situations. See 4 Fed. Attorney Fee Awards Rep. 2-3 (Harcourt Brace Jovanovich) No. 6 (October 1981). While prevailing defendants in civil rights cases may be awarded attorney’s fees only where plaintiff’s action was frivolous, unreasonable, or without foundation, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978), prevailing plaintiffs in such cases “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) [hereinafter Newman rule]. See also Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 2462, 65 L.Ed.2d 488 (1980); New York Gaslight Club Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 2033, 64 L.Ed.2d 723 (1980); Christiansburg Garment Co., 98 S.Ct. at 698; Northcross v. Board of Education of Memphis City Schools, 412 U.S. 427, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973). The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.A. § 1988 (West 1981), provides that courts may award a reasonable attorney’s fee to a prevailing party in certain civil rights actions. In enacting section 1988, Congress expressly stated that “[a] party seeking to enforce the" }, { "docid": "7861204", "title": "", "text": "attorney’s fee[s] and costs”); Bryant Woods, 124 F.3d at 606. However, the Supreme Court has held that when an action involves a civil rights matter, and the prevailing party is a defendant, attorneys’ fees may be awarded by a district court only “upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Chris-tiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (construing § 706(k) of Title VII of the Civil Rights Act of 1964). This Court held in Bryant Woods that the above standard in Christiansburg also applies to attorneys’ fees requests for claims brought under the FHAA. 124 F.3d at 606. We hold that this standard is equally applicable to a request for an award of costs pursuant to the FHAA. See Taylor v. Harbour Pointe Homeowners Ass’n, 690 F.3d 44, 50-51 (2d Cir.2012) (analyzing prevailing defendants’ requests for attorneys’ fees and costs together under the Christiansburg standard in Fair Housing Act action). Citing Christiansburg, the district court concluded that the plaintiffs’ complaint was not “frivolous, unreasonable, or without foundation,” 434 U.S. at 421, 98 S.Ct. 694, and, accordingly, declined to award attorneys’ fees to the defendants. After reviewing the record and the parties’ arguments, we conclude that the district court did not abuse its discretion in reaching this conclusion and in denying the defendants’ request on this basis. The defendants argue separately, however, that they are entitled to attorneys’ fees and costs based on a provision in the covenants stating that, “[s]hould the Association, Board, Architectural Review Board or the Declarant substantially prevail in any litigation brought by or against an Owner, the Owner shall be required to pay all attorney’s fees and costs of the litigation, including expert witness fees, incurred by any such entity.” The defendants contend that the district court was required under this provision to award them attorneys’ fees and costs, irrespective of the standard set forth in Christiansburg and Bryant Woods. We disagree with the defendants’ argument. Congress’ decision to encourage private civil actions under" }, { "docid": "3637769", "title": "", "text": "2000e-6(k), 42 U.S.C. § 1988, and 28 U.S.C. § 1927. A. Entitlement to Fees as a Prevailing Party under 42 U.S.C. § 1988 Ordinarily, a prevailing plaintiff in Title VII cases “is to be awarded attorney’s fees in all but special circumstances.” Christiansburg Garment Co. v. E.E.O.C., 484 U.S. 412, 417, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). By contrast, a more stringent standard applies to prevailing defendants who may be awarded attorney’s fees only when a court finds that the plaintiffs claim was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 421, 98 S.Ct. 694. This standard applies equally to awards of attorney’s fees sought under 42 U.S.C. § 1988 by prevailing civil rights defendants. Head v. Medford, 62 F.3d 351, 355 (11th Cir.1995) (citing Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Section 1988(b) permits a court to award attorney’s fees to the “prevailing party” for actions brought “to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.] ....” See generally U.S. Steel, LLC, v. Tieco, Inc., 261 F.3d 1275, 1294 (11th Cir.2001); Zaklama v. Mount Sinai Med. Ctr., 906 F.2d 645, 648 n. 2 (11th Cir.1990). Clearly, Defendants were the prevailing party in this case. However, the fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees. Hughes, 449 U.S. at 14, 101 S.Ct. 173 (applying Christiansburg standard to attorney’s fees award under § 1983). Further, even if the law or the facts are somewhat questionable or unfavorable at the outset of litigation, a party may have an entirely reasonable ground for bringing suit. Id. at 15, 101 S.Ct. 173 (citing Christiansburg, 434 U.S. at 422, 98 S.Ct. 694). Hence, a plaintiff may be assessed fees if he continues to litigate a once colorable claim after it becomes obvious that the claim is frivolous, unreasonable," }, { "docid": "3637790", "title": "", "text": "prevailed on the merits of some of his claims, he may be deemed a prevailing party entitled to all costs (including fees) incurred in defending the suit. Under this standard, a prevailing party can redress those rare abusive situations in which a civil rights plaintiff files a blatantly frivolous claim, and then simply dismisses those claims voluntarily to avoid a judicial determination on the merits. 2. Standard Applicable to Prevailing Civil Rights Defendants Neither § 1988(b) nor § 2000e-5 distinguish between prevailing plaintiffs and prevailing defendants. However, the Supreme Court has developed two distinct standards—one for prevailing civil rights plaintiffs and another for prevailing civil rights defendants. Relying on Congress’s intent to cast civil rights plaintiffs in the role of private attorneys general, and on the fact that attorney’s fee awards to prevailing plaintiffs are necessarily awarded against violators of federal law, the Supreme Court has held that a prevailing civil rights plaintiff should ordinarily recover his attorney’s fees unless special circumstances would render such an award unjust. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416—18, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). A far more rigorous standard applies to fee awards to prevailing defendants in civil rights cases. A prevailing defendant may recover its attorney’s fees only where it establishes that the plaintiffs actions were frivolous, unreasonable, or without foundation, even though the action was not brought in subjective bad faith. See Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Christiansburg Garment, 434 U.S. at 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); Cone Corp. v. Hillsborough County, 157 F.R.D. 533, 540 (M.D.Fla.1994). The United States Supreme Court has also made it clear that a litigant’s duty to avoid frivolous litigation is a continuing obligation. Christiansburg, 434 U.S. at 422, 98 S.Ct. 694; Turner v. Sungard Business Systems, Inc., 91 F.3d 1418, 1423 (11th Cir.1996). Advocacy of a claim after it is clearly no longer tenable may subject the plaintiff to attorney’s fees even though the complaint was not initially frivolous. Christiansburg, 434 U.S. at 422, 98 S.Ct. 694. The" }, { "docid": "4994854", "title": "", "text": "and a prevailing defendant, the courts have nevertheless drawn such a distinction. Under controlling precedent, a prevailing civil rights plaintiff is ordinarily entitled to receive an attorney’s fee award as a matter of course. See Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (“[A] prevailing plaintiff should ordinarily recover an attor ney’s fee [under § 1988] unless special circumstances would render such an award unjust.” (internal quotation marks omitted)). A much stricter standard applies, however, when a court is requested to make such an award to a prevailing defendant. See, e.g., Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir.1986) (describing fee award to civil rights defendant as “extreme sanction” reserved only for “truly egregious cases of misconduct”). In order for a prevailing defendant to be entitled to recover attorney’s fees under § 1988, the plaintiffs claim must have been either “ ‘frivolous, unreasonable, or groundless,’ ” or the plaintiff must have “ ‘continued to litigate after [the claim] clearly became so.’ ” Lotz Realty Co., Inc. v. U.S. Dept. of Housing & Urban Dev., 717 F.2d 929, 931 (4th Cir.1983) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)). Indeed, the mere fact that a civil rights plaintiff lost her case does not render her claim frivolous, unreasonable, or groundless. As the Supreme Court explained in this regard: [I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. Christiansburg, 434 U.S. at 421-22, 98 S.Ct. 694; see also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 303 (6th Cir.2008) (“The Sixth Circuit affirms awards of attorney fees [to prevailing defendants under § 1988] only when plaintiffs relitigated already-settled legal matters, and we reverse the award of attorney fees when issues of law" }, { "docid": "15995704", "title": "", "text": "a prevailing party. Accordingly, we find subject matter jurisdiction exists to award attorney fees and proceed to review the district court’s denial of Praxair’s request. B. Denial of Attorney Fees “Under the abuse of discretion standard, the decision of a trial court will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” MK-Ferguson Co., 99 F.3d at 1548-49 (citation and quotation marks omitted). When determining whether a plaintiff should be ordered to pay the defendant’s attorney fees, we apply the standard enunciated in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648(1978). Under this standard: [t]he plaintiffs action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.... [A] plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.... Houston v. Norton, 215 F.3d 1172, 1174 (10th Cir.2000). “[T]he term ‘vexatious’ in no way implies that the plaintiffs subjective bad faith is a necessary prerequisite to a fee award against him.... [A] district court may in its discretion award attorney’s fees to a prevailing defendant ... upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co., 434 U.S. at 421, 98 S.Ct. 694; see also Prochaska v. Marcoux, 632 F.2d 848, 853-54 (10th Cir.1980). Praxair claims Grynberg’s persistence in this lawsuit was clearly frivolous after it became apparent Praxair had no responsibility or involvement with Conoco’s royalty payments. The district court’s order denying Praxair’s request for attorney fees states: Section 3730(d)(4) authorizes the award of attorney’s fees and expenses “if the defendant prevails in the action and the court finds that the claim of the person bringing the" }, { "docid": "3089124", "title": "", "text": "seek their attorney fees under 42 U.S.C. § 1988, which gives courts the discretion to award reasonable attorney fees to the prevailing party in a civil rights lawsuit. The standard for awarding attorney fees to a prevailing defendant in a civil rights lawsuit differs significantly from the standard for awarding attorney fees to a prevailing plaintiff. Whereas “a prevailing plaintiff ordinarily is entitled to attorney fees,” Mitchell v. City of Moore, 218 F.3d 1190, 1203 (10th Cir.2000), a prevailing defendant should recover attorney fees only where the “plaintiffs action was frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). The Tenth Circuit has stressed that only in “rare circumstances” is “a suit ... truly frivolous so as to warrant an award of attorney’s fees to the defendant.” Clajon v. Petera, 70 F.3d 1566, 1581 (10th Cir.1995). 1. Summary Judgment The Defendants claim they should recover their attorney fees because the Court’s award of summary judgment in their favor allegedly proves that the Seeds’ civil rights claims were groundless. See City Defendants’ opening brief at 2; VanderVossens’ opening brief at 14. This Court did find that the Seeds failed to establish the actual deprivation of a federal right. However, the Court did not consider their Section 1983 claim to be so weak as to be labeled groundless. Rather, the Court determined that the Seeds had presented substantial and disturbing evidence that the Defendants conspired to harass them because Mr. Seeds had interfered with the VanderVossens’ annexation request, but that the Seeds had failed to present evidence that the harassment resulted from Mr. Seeds’ political affiliation or that the harassment resulted in the Seeds being treated differently from persons similarly situated. The Court’s determination was not the equivalent of a finding that the Seeds’ Section 1983 claim was groundless, as that term has. been narrowly defined in the civil rights-attorney fees context. The Seeds have highlighted significant distinctions between this case and the rare cases in which courts have awarded attorney fees to prevailing defendants in civil rights lawsuits. See" }, { "docid": "23050711", "title": "", "text": "the costs. II. Attorneys’ Fees The district court’s order denying plaintiffs and defendants’ motions for attorneys’ fees did not determine which party had prevailed for purposes of 42 U.S.C. § 1988, or whether plaintiffs federal claims were frivolous. Again, we properly may determine which party has prevailed so as to be entitled to an award of attorneys’ fees pursuant to 42 U.S.C. § 1988. Ensley Branch, NAACP v. Seibels, 31 F.3d at 1582. See Jones v. Diamond, 636 F.2d at 1381-83. Defendants assert that plaintiff admitted that her federal claim was frivolous, thus entitling them to attorneys’ fees under both 42 U.S.C. § 1988 and Rule 11, Fed.R.Civ.P. Plaintiff contends that the district court did not abuse its discretion by denying defendants ' attorneys’ fees. Ordinarily, a prevailing plaintiff “is to be awarded attorney’s fees in all but special circumstances.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S.Ct. 694, 698, 54 L.Ed.2d 648, 654 (1978) (Title VII). By contrast, a more stringent standard applies to prevailing defendants who may be awarded attorney’s fees only when a court finds that the plaintiffs claim was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co., 434 U.S. at 421, 98 S.Ct. at 700, 54 L.Ed.2d at 657. This standard applies equally to awards of attorneys’ fees sought under 42 U.S.C. § 1988 by prevailing civil rights defendants. Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163, 172 (1980). But, the Supreme Court has cautioned that [i]n applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims .-.. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit. Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700, 54 L.Ed.2d at 657. In" }, { "docid": "1864827", "title": "", "text": "B. Availability of Attorney’s Fees Pursuant to Section 1988 The appellants contend that the district court erred in concluding that the Barnes’ claims were neither legally nor factually frivolous and that it should have awarded them attorney’s fees on both of those bases pursuant to section 1988. Section 1988 provides, in relevant part: “In any action or proceeding to enforce a provision of sections ... 1983 [and] 1985 ... of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.... ” 42 U.S.C. § 1988(b). The “prevailing party” can be either the plaintiff or the defendant but the standard for awarding attorney’s fees to prevailing defendants is more stringent than that for awarding fees to prevailing plaintiffs. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978); L.B. Foster, 123 F.3d at 750-51. As the Supreme Court held in Christiansburg, while prevailing plaintiffs “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust,” a prevailing defendant is entitled to attorney’s fees only “upon a finding that the plaintiffs action was frivolous, unreasonable or without foundation.... ” Chris-tiansburg, 434 U.S. at 416-17, 421, 98 S.Ct. at 698, 700. Nevertheless, it is not necessary that the prevailing defendant establish that the plaintiff had subjective bad faith in bringing, the action in order to recover attorney’s fees. Rather, the relevant standard is objective. See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980). Furthermore, the Supreme Court has indicated that “it is important that a ... court resist the understandable temptation to engage in post hoc reasoning by concluding that because a plaintiff did not ultimately prevail his action must have been unreasonable or without foundation.” Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700. We have relied on several factors in determining whether a plaintiffs unsuccessful civil rights claim was frivolous including whether the plaintiff established a prima facie case, the defendant offered to settle, the" } ]

[ { "docid": "22712283", "title": "", "text": "in person by a known informant who had provided information in the past. We concluded that, while the unverified tip may have been insufficient to support an arrest or search warrant, the information carried sufficient “indicia of reliability” to justify a forcible stop. 407 U. S., at 147. We did not address the issue of anonymous tips in Adams, except to say that “[t]his is a stronger case than obtains in the case of an anonymous telephone tip,” id., at 146. Illinois v. Gates, 462 U. S. 213 (1983), dealt with an anonymous tip in the probable-cause context. The Court there abandoned the “two-pronged test” of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), in favor of a “totality of the circumstances” approach to determining whether an informant’s tip establishes probable cause. Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli—an informant’s “veracity,” “reliability,” and “basis of knowledge”—remain “highly relevant in determining the value of his report.” 462 U. S., at 230. These factors are also relevant in the reasonable-suspicion context, although al lowance must be made in applying them for the lesser showing required to meet that standard. The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is “by hypothesis largely unknown, and unknowable.” Id., at 237. This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry stop. But the tip in Gates was not an exception to the general rule, and the anonymous tip in this case is like the one in Gates: “[It] provides virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller’s] predictions regarding [Vanessa White’s] criminal activities.” 462 U. S., at" } ]

[ { "docid": "23409098", "title": "", "text": "aside erroneous information and material omissions, “there remains a residue of independent and lawful information sufficient to support probable cause.” Id. at 849. B. Probable Cause Once the inaccurate information has been removed from the affidavit, the remaining portions of the affidavit should be reviewed de novo to determine if probable cause still exists. The Fourth Amendment to the Constitution provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. When the affidavit in support of the search warrant is based on information obtained from a confidential informant, “courts assess the information by examining the ‘totality of the circumstances’ bearing upon its reliability.” Smith, 9 F.3d at 1012 (quoting Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Probable cause is “a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ..., including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317 (internal quotation marks omitted). “[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Id. at 232, 103 S.Ct. 2317. Although discredited as a rigid two-pronged test, an informant’s basis of knowledge and veracity remain important factors in a “totality of the circumstances” analysis. See id. at 230-39, 103 S.Ct. 2317. III. The Materiality of the Alleged Inaccuracies in the Probable Cause Determination A. Correcting the Affidavit For Alleged Inaccuracies Applying the standards discussed above, our first task is to correct the affidavit to account for the alleged inaccuracies. Can-field alleges three inaccuracies with the affidavit. First, he claims that the Saab referenced in paragraphs 6 and 7 was not stolen. Second, he claims that 1175 Hanover Avenue was not a house, but an" }, { "docid": "5651420", "title": "", "text": "United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933)). Such facts “need not be based on the direct knowledge and observations of the affiant, but may also come from hearsay information supplied by an informant.” 99 F.3d at 1377 (citing Jones v. United States, 362 U.S. 257, 269-70, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). However, “from whatever source, the information presented must be sufficient to allow the official to independently determine probable cause; ‘his action cannot be a mere ratification of the bare conclusions of others.’ ” 99 F.3d at 1377 (quoting Gates, 462 U,S. at 239, 103 S.Ct. 2317)). This Court applies the “totality of the circumstances” analysis enunciated in Gates to cases involving known, reliable informants. Weaver, 99 F.3d at 1377 (citing United States v. Smith, 783 F.2d 648, 650-51 (6th Cir.1986)). In Gates, the Court described the “totality of the circumstances” test as follows: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. 462 U.S. at 238, 103 S.Ct. 2317. In applying this test, this Court has recognized that “two factors are critical to determining whether an affidavit based on a confidential informant’s tip provides a substantial basis for finding probable cause: (1) an explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles the informant’s tip to greater weight than might otherwise be the case; and (2) corroboration of the tip through the officer’s independent investigative work is significant.” Weaver, 99 F.3d at 1377 (quoting United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.1994)) (citing Gates, 462 U.S. at 234, 103 S.Ct. 2317)) (internal quotation marks omitted). Here, Defendant contends that the warrant was improperly issued because the affidavit was based upon “bare bones” conclusions. Relying upon this Court’s analysis and holding in Weaver," }, { "docid": "20779009", "title": "", "text": "whether the informant has provided accurate information in the past. United States v. Corral, 970 F.2d 719, 727 (10th Cir.1992); see also Gates, 462 U.S. at 243-44, 103 S.Ct. 2317. As for basis of knowledge, a firsthand observation is entitled to greater weight than secondhand information. Tuter, 240 F.3d at 1297-98. Thus, when -the informant’s basis of knowledge is not described on the face of the affidavit, we look to whether the information “contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” Gates, 462 U.S. at 245, 103 S.Ct. 2317. We look for “the kind of highly specific or personal details from which one could reasonably infer that the [informant] had firsthand knowledge about the claimed criminal activity.” Tuter, 240 F.3d at 1298; see also Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (explaining that the provision of accurate “predictive information” can indicate' either veracity or basis of knowledge). As the foregoing authorities demonstrate, “veracity, reliability, and basis of knowledge” are “intertwined.” Gates, 462 U.S. at 230, 103 S.Ct. 2317. These factors are not absolute, independent requirements that must be satisfied in order for probable cause to exist; rather, we evaluate whether these factors as revealed by the facts in the affidavit create “a fair probability that contraband or evidence of a crime will be found in a particular place” on consideration of the totality of circumstances. Id. at 238, 103 S.Ct. 2317. Thus, a deficiency in one factor may be compensated for by a strong showing of another or by other indicia of reliability. Id. at 233, 103 S.Ct. 2317; United States v. Traxler, 477 F.3d 1243, 1247 (10th Cir.2007). Since Gates, the Court has clarified that even reasonable suspicion — a lesser standard than probable cause — “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” J.L., 529 U.S. at 272, 120 S.Ct. 1375. Thus, mere corroboration" }, { "docid": "523707", "title": "", "text": "and practicable (e.g., through police surveillance); and whether a law-enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise. Khounsavanh, 113 F.3d at 284 (quoting Zayas-Diaz, 95 F.3d at 111) (internal quotations and footnote omitted). None of these factors are individually indispensable; rather, “stronger evidence on one'or more factors may compensate for a weaker or deficient showing on another.” Id. (quoting Zayas-Diaz, 95 F.3d at 111). Strother argues that the warrant application failed to establish CW-l’s reliability because CW-l’s track record was limited to one instance of locating an individual wanted by the police. He also contends that the warrant application was deficient as to the nexus element: i.e., whether there was probable cause to believe that firearms were likely to be found at the searched residence. We disagree and hold that the totality of the circumstances set forth in the application demonstrates probable cause. We need not decide whether the supporting affidavit’s recitation of CW-l’s prior assistance to the authorities is sufficient, standing alone, to establish his reliability. Here, CW-l’s reliability was bolstered by the detail he provided about Strother’s criminal activities — including drug trafficking, fraudulent check cashing, and illegal firearms possession — and by independent corroboration thereof. See Gates, 462 U.S. at 230, 103 S.Ct. 2317 (informant’s truthfulness and basis of knowledge are not “entirely separate and independent requirements to be rigidly exacted in every case.”) First, CW-1 told Boshears that in March, 2000, he saw Strother scooping up large quantities of cocaine, and possibly heroin, into plastic bags on the first floor of 41 Kingsdale; that Strother carried the narcotics in small metal tins when outside of his apartment; and that Strother used the first floor of 41 Kingsdale to store cocaine and heroin. These allegations were corroborated to some degree by, inter alia, Boshears’s review of Strother’s criminal record, which included two convictions for possession of cocaine with intent to distribute; ari outstanding warrant for his arrest on state drug charges; and a veteran Boston Police Officer’s statement that Strother was known to" }, { "docid": "14281137", "title": "", "text": "Cir.1978)). We have no trouble deciding that there was probable cause here. In fact it overflowed. Officer Prough’s probable cause determination was supported by three pillars of evidence. The first was the Cl’s statements to Officer Deetjen that the purpose of Spaulding’s trip to Massachusetts was to purchase cocaine. The reliability of an informant is critical to our determination of whether that informant’s statements can support a police officer’s finding of probable cause. See Link, 238 F.3d at 109-10; United States v. Khounsavanh, 113 F.3d 279, 284 (1st Cir.1997) (“an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” (quoting Gates, 462 U.S. at 230, 103 S.Ct. 2317)). There is no doubt that Officer Deetjen had grounds for believing that the Cl in this case was reliable. In Officer Deetjen’s estimation this informant was the- best he had ever worked with: He was always on time, as directed, showed up where he was supposed to be as directed, was self-motivating as far as contacting people and ... going on his own to visit people to set up things that we could later resurrect with phone calls. Again, he was the best cooperating defendant I’ve ever worked with. Deetjen testified that the informant’s cooperation resulted in federal indictments of five or six persons, all of whom pleaded guilty. See Link, 238 F.3d at 110. Even more important, Deetjen was able to corroborate specific information provided by the Cl. See Gates, 462 U.S. at 244, 103 S.Ct. 2317 (“Because an informant is right about some things, he is more probably right about other facts.... ”). It was the Cl, for example, who initially informed Deetjen about Spaulding’s drug trafficking. Deetjen was then able to confirm the Cl’s claims regarding Spaulding’s drug trafficking via the controlled purchases. After each of the controlled purchases, the Cl provided Deetjen with details about the transaction; details which were later verified by electronic recordings or follow-up telephone calls from the Cl to Spaulding. In short, Officer Deetjen had a well founded belief that the informant was reliable. The" }, { "docid": "523705", "title": "", "text": "a term of 180 months in prison. It entered judgment on June 18, 2002, and this appeal followed. II. DISCUSSION A. Probable cause “In reviewing a denial of a suppression motion, the district court’s ultimate legal conclusion, including the determination that a given set of facts constituted probable cause, is a question of law subject to de novo review.” United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir.1997) (citing Ornelas v. United States, 517 U.S. 690, 698-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). The district court’s findings of historical fact are reviewed for clear error. Id. A warrant application must demonstrate probable cause to believe that (1) a crime has been committed (the “commission” element), and (2) enumerated evidence of the offense will be found at the place to be searched (the “nexus” element). United States v. Zayas-Diaz, 95 F.3d 105, 110-11 (1st Cir.1996). “With regard to the ‘nexus’ element, the task of a magistrate ... is ‘to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” United States v. Feliz, 182 F.3d 82, 86 (1st Cir.1999) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In determining the sufficiency of an affidavit supporting a search warrant, we consider whether the “totality of the circumstances” stated in the affidavit demonstrates probable cause to search the premises. Khounsavanh, 113 F.3d at 283. We examine the affidavit “in a practical, common-sense fashion and accord considerable deference to reasonable inferences the [issuing judicial officer] may have drawn from the attested facts.” United States v. Barnard, 299 F.3d 90, 93 (1st Cir.2002) (quoting Zayas-Diaz, 95 F.3d at 111) (internal quotations omitted). Among the factors that may contribute to a probable cause determination are: whether an affidavit supports the probable veracity or basis of knowledge of persons supplying hearsay information; whether informant statements are self-authenticating; whether some or all [of] the informant’s factual statements were corroborated wherever reasonable" }, { "docid": "15997023", "title": "", "text": "A magistrate judge’s task in determining whether probable cause exists to support a search warrant “is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision.” Id. at 235, 103 S.Ct. 2317. A magistrate judge’s decision to issue a warrant is entitled to “great deference.” Id. at 236, 103 S.Ct. 2317; United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir.2001). Accordingly, we need only ask whether, under the totality of the circumstances presented in the affidavit, the magistrate judge had a “substantial basis” for determining that probable cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. 2317; Tuter, 240 F.3d at 1295. We review de novo the district court’s determination of probable cause and review its findings of historical fact for clear error. Tuter, 240 F.3d at 1295. 2. Analysis In Illinois v. Gates, the Supreme Court adopted a “totality of the circumstances” test to determine when information from an anonymous or confidential informant can establish probable cause. 462 U.S. at 238, 103 S.Ct. 2317; accord Tuter, 240 F.3d at 1295. The Court explained that an informant’s “veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his report.” Gates, 462 U.S. at 230, 103 S.Ct. 2317 (internal quotations omitted). However, “a deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. at 233, 103 S.Ct. 2317. Specifically, “[w]hen there is sufficient independent corroboration of an informant’s information, there is no need to establish the veracity of the informant.” United States" }, { "docid": "13106526", "title": "", "text": "issuance of the warrant. DISCUSSION I. PROBABLE CAUSE A. Standards of Review A magistrate judge’s task in determining whether probable cause exists to support a search warrant “is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity* and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We have stated that a magistrate judge’s decision to issue a warrant is “entitled to ‘great deference’ ” from the reviewing court. United States v. Le, 173 F.3d 1258, 1265 (10th Cir.1999) (quoting United States v. Wittgenstein, 163 F.3d 1164, 1172 (10th Cir.1998)). Accordingly, we need only ask whether, under the totality of the circumstances presented in the affidavit, the magistrate judge had a “ ‘substantial basis’ ” for determining that probable cause existed. Id.; see also Gates, 462 U.S. at 238-39, 103 S.Ct. 2317. We review de novo the district court’s determination of probable cause, Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), while reviewing its findings of historical fact for clear error, United States v. Barron-Cabrera, 119 F.3d 1454, 1457 (10th Cir.1997). B. Anonymous Informants The Supreme Court has adopted a “totality of the circumstances” test to determine when information from a confidential informant or an anonymous tip can establish probable cause. Gates, 462 U.S. at 238, 103 S.Ct. 2317. The Court has explained that an informant’s “ ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Id. at 230, 103 S.Ct. 2317. In Gates, the information came from an anonymous letter which provided no indication of the informant’s veracity, reliability, or basis of knowledge. The Court held that the anonymous tip, standing alone, was insufficient to establish probable cause. Id. at 227, 103 S.Ct. 2317. However, it explained that “a deficiency in one [factor] may be compensated for, in determining" }, { "docid": "2211222", "title": "", "text": "L.Ed. 1879 (1949). Mere suspicion does not suffice to establish probable cause. Id. An issuing magistrate’s task “is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. Magistrates are entitled “to draw reasonable inferences concerning where the evidence referred to in the affidavit is likely to be kept, taking into account the nature of the evidence and the offense.” United States v. Singleton, 125 F.3d 1097, 1102 (7th Cir.1997) (citation omitted). The magistrate considers all the factors supporting the reliability of the information, including its age and the nature of the officer’s experience. See United States v. Elst, 579 F.3d 740, 746 (7th Cir.2009); United States v. Lamon, 930 F.2d 1183, 1188-89 (7th Cir.1991); United States v. Batehelder, 824 F.2d 563, 564 (7th Cir. 1987). When an informant’s tip supports a probable cause affidavit, we consider multiple factors in determining whether the totality of the circumstances support probable cause, including “(1) the extent to which the police have corroborated the informant’s statements; (2) the degree to which the informant has acquired knowledge of the events through firsthand observation; (3) the amount of detail provided; and (4) the interval between the date of the events and police officer’s application for the search warrant.” United States v. Koerth, 312 F.3d 862, 866 (7th Cir.2002) (citations omitted). “[N]o single piece of information need satisfy every relevant consideration before we may consider it.” United States v. Wiley, 475 F.3d 908, 915 (7th Cir.2007). Probable cause determinations are not technical; rather, “they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar, 338 U.S. at 175, 69 S.Ct. 1302. Thus, because reviewing courts will not invalidate warrants “by hypertechnical rather than commonsense interpretation” of detailed affidavits found sufficient for probable cause, United States v. Buonomo, 441" }, { "docid": "13416075", "title": "", "text": "States v. Feliz, 182 F.3d 82, 86 (1st Cir.1999). “Where, as here, the basis for the magistrate’s probable cause finding was information provided by an unnamed informant, the affidavit must provide some information from which the magistrate can assess the informant’s credibility.” United States v. Greenburg, 410 F.3d 63, 67 (1st Cir.2005). Our inquiry is a “practical, common-sense” one, Feliz, 182 F.3d at 86 (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317), that takes into account the “totality of the circumstances,” United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir.1997) (internal quotation marks omitted). “[T]he facts presented to the magistrate need only ‘warrant a man of reasonable caution’ to believe that evidence of a crime will be found.” Feliz, 182 F.3d at 86 (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion)). “Probable cause does not require either certainty or an unusually high degree of assurance.” United States v. Clark, 685 F.3d 72, 76 (1st Cir.2012). Rather, “[probability is the touchstone.” Khounsavanh, 113 F.3d at 283 (quoting United States v. Aguirre, 839 F.2d 854, 857 (1st Cir.1988)) (internal quotation. marks omitted). Dixon’s basic argument is that the affidavit was not specific enough as to the informant’s reliability or the conclusions that Dixon had committed a crime or that drugs would be found at the York Street apartment. He also faults the failure to do a field test. We are satisfied that Ross’s affidavit was sufficient to provide probable cause as to both the commission and nexus elements. The affidavit provided numerous facts from which a magistrate could have easily concluded that, the Cl who advised Ross of Dixon’s illegal drug sales was credible. First, Ross “met with the informant in person on several occasions.... This sort of face-to-face contact between .the agent and informant supports the informant’s reliability.” Greenburg, 410 F.3d at 67. Second, the CI had given Ross fruitful tips in the past. See, e.g., United States v. Tiem Trinh, 665 F.3d 1, 10-11 (1st Cir.2011). Third, because of Ross’s extensive contact with the Cl, Ross would have been" }, { "docid": "14281136", "title": "", "text": "(1963); United States v. Jorge, 865 F.2d 6, 9-10 (1st Cir.1989). In United States v. Santana, 895 F.2d 850, 852 (1st Cir.1990), a case very similar to this one, probable cause was defined as follows: Probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). In other words, we consider the totality of the circumstances in evaluating whether the government demonstrated a sufficient “ ‘[probability ... of criminal activity,’ ” Id. at 1023-24 (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Probability is the touchstone.... [T]he government need not show ‘the quantum of proof necessary to convict.’ ” Id. at 1023 (quoting United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978)). We have no trouble deciding that there was probable cause here. In fact it overflowed. Officer Prough’s probable cause determination was supported by three pillars of evidence. The first was the Cl’s statements to Officer Deetjen that the purpose of Spaulding’s trip to Massachusetts was to purchase cocaine. The reliability of an informant is critical to our determination of whether that informant’s statements can support a police officer’s finding of probable cause. See Link, 238 F.3d at 109-10; United States v. Khounsavanh, 113 F.3d 279, 284 (1st Cir.1997) (“an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” (quoting Gates, 462 U.S. at 230, 103 S.Ct. 2317)). There is no doubt that Officer Deetjen had grounds for believing that the Cl in this case was reliable. In Officer Deetjen’s estimation this informant was the- best he had ever worked with: He was always on time, as directed, showed up where he was supposed to be as directed, was self-motivating as far as contacting people and" }, { "docid": "10136478", "title": "", "text": "(quoting Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948)). Nor did Gates intend for trial and appellate courts to abdicate their responsibility to uphold the Fourth Amendment’s probable cause requirement. See. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347. We have never read Gates as a total abandonment of standards and rules of law in determining whether the state may intrude on a citizen’s privacy. Nor does Gates mean that reviewing courts are writing on a clean slate when we confront the question of when an informant’s information rises to the level of probable cause. The Gates Court agreed that the Aguilar and Spinelli factors, including “an informant’s Veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Gates, 462 U.S. at 230, 103 S.Ct. at 2328; see Schaefer, 87 F.3d at 566 (the Aguilar and Spinelli factors are “highly relevant,” even after Gates). We have recently offered a non-exhaustive list of possible factors that a magistrate or reviewing court will consider: Among others, the factors that may contribute to a “probable cause” determination include whether an affidavit supports the probable “ ‘veracity’ or ‘basis of knowledge’ of persons supplying hearsay information”; whether informant statements are self-authenticating; whether some or all the informant’s factual statements were corroborated wherever reasonable and practicable (e.g., through police surveillance); and whether a law-enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise. None of these factors is indispensable; thus, stronger evidence on one or more factors may compensate for a weaker or deficient showing on another. Zayas-Diaz, 95 F.3d at 111 (citations and footnote omitted). The risk that the informant is lying or in error need not be wholly eliminated. Rather, what is needed is that “the probability of a lying or inaccurate informer has been sufficiently reduced by corroborative facts and observations.” 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 168 (3d ed. 1996) (“LaFave”) (quotation omitted). The judgment to" }, { "docid": "8592745", "title": "", "text": "S.Ct. 2317. As the reviewing court on appeal, we accord “considerable deference to reasonable inferences the [issuing judge] may have drawn from the attested facts.” United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir.1996) (quoting United States v. Bucuvalas, 970 F.2d 937, 940 (1st Cir.1992)) (internal quotation marks omitted); see also United States v. Taylor, 985 F.2d 3, 5 (1st Cir.1993) (“[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” (alteration in original) (quoting United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.1990))). Further, in a “doubtful or marginal case,” we defer to the issuing judge’s probable cause determination. Barnard, 299 F.3d at 93. Because the affidavit at issue mainly relies on the informing OS’s reports to investigating authorities, we apply a “nonexhaustive list of factors” to examine the affidavit’s probable cause showing. Id. These factors include, among others, (1) whether the affidavit establishes the probable “‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information,” Gates, 462 U.S. at 238, 103 S.Ct. 2317; (2) whether an informant’s statements reflect firsthand knowledge, Zayas-Diaz, 95 F.3d at 111; see also Gates, 462 U.S. at 234, 103 S.Ct. 2317 (providing that an informant’s “explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case”); Taylor, 985 F.2d at 6 (noting that an affidavit may support an informant’s veracity “through the very specificity and detail with which it relates the informant’s firsthand description of the place to be searched or the items to be seized”); (3) whether “some or all [of] the informant’s factual statements were corroborated wherever reasonable and practicable (e.g., through police surveillance),” Zayas-Diaz, 95 F.3d at 111; and (4) whether a law enforcement affiant assessed, from his professional standpoint, experience, and expertise, the probable significance of the informant’s provided information, Khounsavanh, 113 F.3d at 284. Because “[n]one of these factors is indispensable,” a stronger showing of supporting evidence as to one or more factors may" }, { "docid": "10136479", "title": "", "text": "reviewing court will consider: Among others, the factors that may contribute to a “probable cause” determination include whether an affidavit supports the probable “ ‘veracity’ or ‘basis of knowledge’ of persons supplying hearsay information”; whether informant statements are self-authenticating; whether some or all the informant’s factual statements were corroborated wherever reasonable and practicable (e.g., through police surveillance); and whether a law-enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise. None of these factors is indispensable; thus, stronger evidence on one or more factors may compensate for a weaker or deficient showing on another. Zayas-Diaz, 95 F.3d at 111 (citations and footnote omitted). The risk that the informant is lying or in error need not be wholly eliminated. Rather, what is needed is that “the probability of a lying or inaccurate informer has been sufficiently reduced by corroborative facts and observations.” 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 168 (3d ed. 1996) (“LaFave”) (quotation omitted). The judgment to be made is: when does verification of part of the informant’s story make it sufficiently likely that the crucial part of the informant’s story (i.e., allegations that criminal activity has occurred and that evidence pertaining thereto will be found in the location to be searched) is true, such as would “ “warrant a [person] of reasonable caution in the belief that [a search would be] appropriate,” based upon what the informant has said? See Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880. In analyzing whether there is sufficient corroboration, in verifying the reliability of the informant or in demonstrating an adequate basis for knowledge, it is not particularly probative for the informant to supply a lot of details about irrelevant facts that other people could easily know about and that are not incriminating, such as describing all the furniture in an apartment or the defendant’s routine activities. Such details do not demonstrate that the informant has a legitimate basis for knowing about the defendant’s allegedly criminal activity which, after all, is what the affidavit" }, { "docid": "8592746", "title": "", "text": "U.S. at 238, 103 S.Ct. 2317; (2) whether an informant’s statements reflect firsthand knowledge, Zayas-Diaz, 95 F.3d at 111; see also Gates, 462 U.S. at 234, 103 S.Ct. 2317 (providing that an informant’s “explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case”); Taylor, 985 F.2d at 6 (noting that an affidavit may support an informant’s veracity “through the very specificity and detail with which it relates the informant’s firsthand description of the place to be searched or the items to be seized”); (3) whether “some or all [of] the informant’s factual statements were corroborated wherever reasonable and practicable (e.g., through police surveillance),” Zayas-Diaz, 95 F.3d at 111; and (4) whether a law enforcement affiant assessed, from his professional standpoint, experience, and expertise, the probable significance of the informant’s provided information, Khounsavanh, 113 F.3d at 284. Because “[n]one of these factors is indispensable,” a stronger showing of supporting evidence as to one or more factors may effectively counterbalance a lesser showing as to others. Zayas-Diaz, 95 F.3d at 111. The affidavit here satisfies these factors. First, contrary to Trinh’s claim, the affidavit expressly stated Agent Ulmer’s assertion that he deemed the CS to be a trustworthy source because the informant “ha[d] on numerous occasions provided credible and reliable information which led to the successful seizure of MDMA, marijuana and weapons.” Because Agent Ulmer supported his statement of the OS’s reliability with reference to the latter’s history of providing information to authorities, we have at least “some assurance of reliability. Unlike an anonymous tipster, the [CS] [is] known to the police and [can] be held responsible if his assertions prove[] inaccurate or false.” Barnard, 299 F.3d at 93; see also Zayas-Diaz, 95 F.3d at 112 (agent’s assertion that a CS had “demonstrated his reliability in the past” supported the informant’s credibility and the veracity of his information); Taylor, 985 F.2d at 5-6. Second, much of the CS’s provided information indicated that he had firsthand knowledge as to the marijuana operation. See United" }, { "docid": "20779010", "title": "", "text": "basis of knowledge). As the foregoing authorities demonstrate, “veracity, reliability, and basis of knowledge” are “intertwined.” Gates, 462 U.S. at 230, 103 S.Ct. 2317. These factors are not absolute, independent requirements that must be satisfied in order for probable cause to exist; rather, we evaluate whether these factors as revealed by the facts in the affidavit create “a fair probability that contraband or evidence of a crime will be found in a particular place” on consideration of the totality of circumstances. Id. at 238, 103 S.Ct. 2317. Thus, a deficiency in one factor may be compensated for by a strong showing of another or by other indicia of reliability. Id. at 233, 103 S.Ct. 2317; United States v. Traxler, 477 F.3d 1243, 1247 (10th Cir.2007). Since Gates, the Court has clarified that even reasonable suspicion — a lesser standard than probable cause — “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” J.L., 529 U.S. at 272, 120 S.Ct. 1375. Thus, mere corroboration of “innocent, innocuous information” provided in a tip is not sufficient to create the requisite suspicion: “Almost anyone can describe the residents of, and vehicles at, a particular home without having any special knowledge of what goes on inside the home,” and thus “an accurate descrip tion of a suspect’s readily observable location and appearance, without more, does not show that ‘the tipster has knowledge of concealed criminal activity.’ ” Tuter, 240 F.3d at 1297 (quoting J.L., 529 U.S. at 272, 120 S.Ct. 1375). Although our prior cases provide some guidance, they do not completely shape our analysis. This is so because, although not explained in particular detail in the affidavit, this informant apparently had a track record of reliability and some indication of veracity. Ortiz’s affidavit stated that his informant was receiving no benefit for providing information and had provided accurate information about criminal activity on past occasions. By contrast, the informant in Tuter was anonymous and untested. 240 F.3d at 1297. In Danhauer, the affidavit indicated nothing about the informant’s past reliability. 229" }, { "docid": "1400559", "title": "", "text": "should have been excluded because: (1) the warrant was based on a knowing or reckless falsehood contained in the affidavit, (2) the magistrate abandoned his role as a neutral and detached judicial officer because there were not sufficient facts to conclude that evidence of the crime would be found at 5492 Florida; and (3) the warrant was so lacking in probable cause that a reasonable officer would not have relied on it. When reviewing the affidavit for evidence establishing probable cause, we ask whether there was a “fair probability” that any evidence would be found at the location to be searched. Davidson, 936 F.2d at 859 (quotation omitted); see also Mays v. City of Dayton, 134 F.3d 809, 814 (6th Cir.1998) (“A determination of probable cause simply requires consideration of whether there were reasonable grounds to believe at the time of the affidavit that the law was being violated on the premises to be searched”). As the Court stated in Gates, we approach the question using a totality of the circumstances test, to arrive at “a practical, common-sense” conclusion as to whether probable cause existed. Gates, 462 U.S. at 238, 103 S.Ct. 2317. When the probable cause for a search warrant is based upon information provided by a confidential informant, we must consider the informant’s veracity, reliability, and “basis of knowledge.” United States v. Smith, 182 F.3d 473, 477 (6th Cir.1999); see also Gates, 462 U.S. at 230, 103 S.Ct. 2317 (noting that “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report”). Only by evaluating these factors under the fluid totality of circumstances approach, can we “ensure that the magistrate was informed of some of the underlying circumstances from which the informant concluded evidence of a crime is where he claimed it would be found, and some of the underlying circumstances from which the officer concluded that the informant ... was reliable.” Smith, 182 F.3d at 478. Another factor to consider is law enforcement’s corroboration of the informant’s tip. Id. The Supreme Court has stated that information provided by a" }, { "docid": "523706", "title": "", "text": "before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” United States v. Feliz, 182 F.3d 82, 86 (1st Cir.1999) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In determining the sufficiency of an affidavit supporting a search warrant, we consider whether the “totality of the circumstances” stated in the affidavit demonstrates probable cause to search the premises. Khounsavanh, 113 F.3d at 283. We examine the affidavit “in a practical, common-sense fashion and accord considerable deference to reasonable inferences the [issuing judicial officer] may have drawn from the attested facts.” United States v. Barnard, 299 F.3d 90, 93 (1st Cir.2002) (quoting Zayas-Diaz, 95 F.3d at 111) (internal quotations omitted). Among the factors that may contribute to a probable cause determination are: whether an affidavit supports the probable veracity or basis of knowledge of persons supplying hearsay information; whether informant statements are self-authenticating; whether some or all [of] the informant’s factual statements were corroborated wherever reasonable and practicable (e.g., through police surveillance); and whether a law-enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise. Khounsavanh, 113 F.3d at 284 (quoting Zayas-Diaz, 95 F.3d at 111) (internal quotations and footnote omitted). None of these factors are individually indispensable; rather, “stronger evidence on one'or more factors may compensate for a weaker or deficient showing on another.” Id. (quoting Zayas-Diaz, 95 F.3d at 111). Strother argues that the warrant application failed to establish CW-l’s reliability because CW-l’s track record was limited to one instance of locating an individual wanted by the police. He also contends that the warrant application was deficient as to the nexus element: i.e., whether there was probable cause to believe that firearms were likely to be found at the searched residence. We disagree and hold that the totality of the circumstances set forth in the application demonstrates probable cause. We need not decide whether the supporting affidavit’s recitation of CW-l’s prior assistance to the authorities is sufficient," }, { "docid": "15094437", "title": "", "text": "informed by a hearsay tip from an anonymous source. Reliance on anonymous tips is “commonplace” and “a necessary part of police work.” United States v. Schaefer, 87 F.3d 562, 566 (1st Cir.1996). Even when based on hearsay, such tips are often “the stuff of search warrant affidavits.” Jordan, 999 F.2d at 13-14. Nevertheless, for such a tip to serve as the predicate for probable cause, the officer must attempt to corroborate the informant’s story under the totality of the circumstances. See Gates, 462 U.S. at 238, 103 S.Ct. 2317. The officer, need not, however, entirely eliminate “the risk that an informant is lying or in error.” United States v. Barnard, 299 F.3d 90, 94 (1st Cir.2002) (quoting United States v. Khounsavanh, 113 F.3d 279, 284 (1st Cir.1997)). Thus, to qualify for the good faith exception, Irwin must have provided sufficient corroboration of the informant’s tip that an objectively reasonable officer would have relied on the tip to apply for a warrant. See Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Several kinds of information can corroborate an informant’s anonymous tip: whether the affidavit supports the basis of knowledge of the person providing the hearsay; whether the informant’s statements were self-authenticating; whether some of the informant’s statements were corroborated; and whether a law enforcement professional included an assessment of the significance of the facts relayed by the informant to the investigation. See Barnard, 299 F.3d at 93. “None of these factors is indispensable”; the ultimate issue is whether the totality of the circumstances establishes the credibility of the informant’s story. United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir.1996). Here, Trooper Irwin presented sufficient information for an objectively reasonable officer to believe that the anonymous tip had been adequately corroborated. Irwin learned from Officer Murphy that the two women who were present at the initial search of Capozzi’s room at the Charles Hotel were also present at the Peabody District Court for Capozzi’s arraignment. Thus, Irwin confirmed that individuals with first-hand knowledge concerning the whereabouts of the weapons used in the crime were present" }, { "docid": "8592744", "title": "", "text": "Barnes, 492 F.3d 33, 37 (1st Cir.2007) (finding “ample additional evidence” to support the CS’s reliability where the CS had supplied information leading to many past arrests). Further, Trinh submits that any observations re- suiting from surveillance of the Trinhs corroborated nothing more than innocent acts on the defendants’ parts. In particular, Trinh argues that no corroborating evidence confirmed the OS’s claims that marijuana cultivation was occurring in the Buffalo residence. We reject Trinh’s arguments. First, it is well-established that “[i]n determining the sufficiency of an affidavit, we consider whether the ‘totality of the circumstances’ stated in the affidavit demonstrates probable cause to search the premises.” United States v. Barnard, 299 F.3d 90, 93 (1st Cir.2002) (quoting United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir.1997)). We review the affidavit to make “a practical, common-sense” determination as to whether, “given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. As the reviewing court on appeal, we accord “considerable deference to reasonable inferences the [issuing judge] may have drawn from the attested facts.” United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir.1996) (quoting United States v. Bucuvalas, 970 F.2d 937, 940 (1st Cir.1992)) (internal quotation marks omitted); see also United States v. Taylor, 985 F.2d 3, 5 (1st Cir.1993) (“[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” (alteration in original) (quoting United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.1990))). Further, in a “doubtful or marginal case,” we defer to the issuing judge’s probable cause determination. Barnard, 299 F.3d at 93. Because the affidavit at issue mainly relies on the informing OS’s reports to investigating authorities, we apply a “nonexhaustive list of factors” to examine the affidavit’s probable cause showing. Id. These factors include, among others, (1) whether the affidavit establishes the probable “‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information,” Gates, 462" } ]

[ { "docid": "22317612", "title": "", "text": "the Code, and, second, because the government is not a ‘master’ and the soldier is not a ‘servant’ within the meaning of the Code section.” 153 F. 2d at 961. The court further concluded, however, that Etzel’s release “covered his lost wages and medical expenses as elements of damage,” and therefore was effective to discharge all liability, including any right of subrogation in the United States “without statutory authority.” Finally the opinion stated: “. . . it seems clear that Congress did not intend that for tortious injuries to a soldier in time of war, the government should be subrogated to the soldier’s claims for damages.” Id. at 963. See note 3. The Government’s claim, of course, is not one for subrogation. It is rather for an independent liability owing directly to itself as for deprivation of the soldier’s services and “indemnity” for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by appellants. See Robert Marys’s Case, Vol. 5, Part 9 Co. Rep. at 113a. It is, in effect, for tortious interference by a third person with the relation between the Government and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tort-feasors. We may assume that the release was not effective to discharge any liability owing independently to the Government, cf. note 5, although fully effective as against any claim by the soldier. Only if such an independent liability were found to exist would any issue concerning the release be reached. Including the powers of Congress to “provide for the common Defence,” “raise and support Armies,” and “make Rules for the Government and Regulation of the land and naval Forces,” U. S. Const., Art. I, § 8, as well as “To declare War” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .” Ibid. The decision of the Circuit Court of Appeals seems to have been predicated upon the assumption that Congress could override" } ]

[ { "docid": "11995230", "title": "", "text": "and defenses” which could have been exercised against the injured person. As a result of hearings by the House of Representatives Judiciary Committee, however, the bill was amended, in part we feel, to make clear that the United States was to have an independent right of recovery, apart from any rights the injured party might have against the tort-feasor. That this was one purpose of the amendments is shown by the comments made by the House Judiciary Committee in its report on the bill, as amended and as passed by the Senate without change. Whatever ambiguity remains is a result of that portion of the Act which states that the government’s right to recover shall “be subrogated to any right or claim that the injured or diseased person * * * has against such third person * * This language has led most courts which have considered the problem now before us to hold that the Medical Care Recovery Act, supra, not only creates an independent right in the United States to recover from a tortiously liable third person the reasonable value of the care and treatment furnished an injured person, but also subrogates the government to any rights the injured person may have against such third person for medical expenses. The problem with such a construction is that the quoted language, instead of complementing the right created in the government with an additional right of subrogation, refers directly to and modifies the primary right initially created by the statute. We think that, properly construed, the Act creates in the United States an independent right of recovery. This right, however, is “subrogated” to the extent that it is subject to any state substantive defenses which would negate the requirement that the injury arise “under circumstances creating a tort liability upon some third person.” The government’s right to recover cannot be a wholly subrogated right, in the tradi-. tional sense, since the only time the Act applies and authorizes recovery is when 'the United States is required by law to give treatment and care, and hence the injured party, not having" }, { "docid": "1518869", "title": "", "text": "one for subrogation. It is rather for an independent liability owing directly to itself as for deprivation of the soldier’s services and “indemnity” for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by appellants. ... It is, in effect, for tortious interference by a third person with the relation between the Government and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tort-feasors. 332 U.S. at 304 n. 5, 67 S.Ct. at 1606 (citation omitted). Here the Government seeks no independent right of recovery, but only subrogation through voluntary assignments to the rights of the injured veteran-employees. There is no chance of double liability, as was the case in Standard Oil. The assignments operate to divest the veteran-employees of any rights they might have for the hospital cost and medical care. See United States v. Kirkland, 405 F.Supp. 1024 (E.D.Tenn., 1976). Standard Oil does not preclude the Government’s subrogation to a veteran-employee’s rights for workmen’s compensation. In both of these cases, defendants seek to dismiss the petitions for review on the ground that the Government was not a proper party to seek review of the Board’s decision because it did not participate in the proceedings before the Administrative Law Judge or the Benefits Review Board. The Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 921(c) (Supp.1977), provides that “[a]ny person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States Court of Appeals for the circuit in which the injury occurred . . . .” The statute speaks not in terms of “parties” but in terms of “person[s] adversely affected or aggrieved.” The Government was aggrieved by the Board’s ruling which expressly held that neither the employee nor the Veterans Administration was permitted to recover the costs of care furnished by the V.A. hospital. With respect to the employee’s claim for costs incurred at the V.A. hospital, the Government was in fact the real" }, { "docid": "19861966", "title": "", "text": "U.S. at 302, 67 S.Ct. at 1605. What the Court meant by “a new and substantive legal liability was clarified by the following statement: “The Government’s claim, of course, is not one for subrogation. It is rather for an independent liability owing directly to itself as for deprivation of the soldier’s services and ‘indemnity’ for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by appellants. See, Robert Marys’ Case, Vol. 5, Part 9 Co.Rep. at 113a. It is, in effect, for tortious interference by a third person with the relation between the Government and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tort-feasors.” 332 U.S. at 304, n. 5, 67 S.Ct. at 1606. . T.O.A. § 50-1004 provides in pertinent part: “For not exceeding three (3) years after notice of injury, the employer or his agent shall furnish free of charge to the employee such medical and surgical treatment . made reasonably necessary by accident as herein defined, as may be reasonably required . The following statement indicates that the Court felt that if it were to create a new and substantive liability owed directly to the Government, the tortfeasor would be subjected to double liability. “Furthermore, the liability sought is not essential or even relevant to protection of the state’s citizens against tortious harms, nor indeed for the soldier’s personal indemnity or security, except in the remotest sense, 14 since his personal rights against the wrongdoer may be fully protected without reference to any indemnity for the Government’s loss.” * * * * * “[Note] 14 That is, if potential added liability ever can be considered as having effect to deter the commission of negligent torts, the imposition of liability to indemnify the Government in addition to indemnifying the soldier conceivably could be thought to furnish some additional incentive for avoiding such harms.” (Emphasis added) 332 U.S. at 310 & n. 14, 67 S.Ot. at 1609. . 38 U.S.C. § 210 provides in pertinent part:" }, { "docid": "3107819", "title": "", "text": "problem for the Government was that there was no substantive theory of tort liability at that time that would sustain such a claim. Consequently, it argued for the creation of a new federal tort claim — tortious “interference with the government-soldier relation.” Id. at 303, 67 S.Ct. 1604. The Court commented at length about the nature of the claim which the United States sought to create. It stated that the claim was “not one for subrogation,” but was rather an independent claim seeking reimbursement for losses incurred in the discharge of the Government’s duty to care for the soldier and for the loss of the soldier’s services. Id. at 304 n. 5, 67 S.Ct. 1604 (“[I]n effect, [the proposed claim is one] for tortious interference by a third person with the relation between the Government and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tort-feasors.”). In this way, the Court likened the Government’s proposed cause of action to an employer’s attempt to recover for the loss of an employee’s services or a consortium claim asserted by a parent or spouse. Id. at 311-12, 67 S.Ct. 1604. The Court added that the relationship between the Government and a soldier is “distinctly federal in character” and that “the scope, nature, legal incidents and consequences” of such a relationship should be “derived from federal sources and governed by federal authority.” Id. at 305-06, 67 S.Ct. 1604. And were such a cause of action to be created, the Court stated that it “[knew] of no good reason why the Government’s right to be indemnified in [such] circumstances, or the lack of such a right, should vary in accordance with the different rulings of the several states, simply because the soldier marches ... across state lines.” Id. at 310, 67 S.Ct. 1604. In the end, however, the Court declined the Government’s request, concluding that granting it would have had the effect of improperly interjecting the judiciary into the role of “determining and establishing ... federal fiscal and regulatory" }, { "docid": "9583874", "title": "", "text": "state law that contributory negligence absolves the third person from liability, then the United States cannot recover from that third person. This is what the statute must mean, and it is to this situation that the language in Fort Benning and Greene was directed. On the other hand, here the Housing Authority was liable for the infant’s injuries, and under state law any possible contributory negligence of the parents was irrelevant to that liability. Thus, the terms of the Act are fully met, and any contributory negligence of the parents can in no way defeat recovery by the United States. It is therefore unnecessary to return the case to the district court for a determination of this issue. The Housing Authority contends that since, under Washington state law, the parents, if they were contributorily negligent, could not recover for medical expenses furnished by them for the child, then the United States cannot recover either. This argument assumes that the United States is subrogated to the parents’ claim, so that it is subject to all defenses against the parents. But as already shown, the government has an independent right to recovery; it is not merely a subrogee. Furthermore, recovery by the parents is forbidden if they are contributorily negligent because otherwise they would profit in spite of their own wrongdoing. However, the United States has been guilty of no wrongdoing, and the policy that excludes recovery by the parents is inapplicable to the United States. We hold that the United States may properly' maintain this suit, and that contributory negligence of the parents as a defense is not open to the Housing Authority. The parties have stipulated that the reasonable value of the medical care furnished by the United States is $3275.00. All elements of liability under the Medical Care Recovery Act have been established. The judgment of the district court is reversed, and the cause is remanded to the district court with instructions to enter a judgment in favor of the United States in the sum of $3275.00. . The issue of the parents’ alleged contributory negligence did not arise" }, { "docid": "14851273", "title": "", "text": "to their own standards.” Standard Oil, 332 U.S. at 305, 67 S.Ct. at 1607 (citing Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67, 63 S.Ct. 573, 574-75, 87 L.Ed. 838 (1943)). The court noted that in exercising this common law power federal courts have occasionally incorporated state law as the applicable rule of decision but then explained why in this instance adopting state law would be singularly inappropriate. [W]e nevertheless are of the opinion that state law should not be selected as the federal rule for governing the matter in issue. Not only is the government-soldier relation distinctively and exclusively a creation of federal law, but we know of no good reason why the Government’s right to be indemnified in these circumstances, or the lack of such right, should vary in accordance with the different rulings of the different states, simply because the soldier marches or today perhaps as often flies across state lines. Furthermore, the liability sought is not essential or even relevant to protection of the state’s citizens against tortious harms, nor indeed for the soldier’s personal indemnity or security, except in the remotest sense, since his personal rights against the wrongdoer may be fully protected without reference to any indemnity for the Government’s loss. It is rather a liability the principal, if not the only, effect of which would be to make whole the federal treasury for financial losses sustained, flowing from injuries inflicted and the Government’s obligations to the soldier. The question, therefore, is chiefly one of federal fiscal policy, not of special or particular concern to the states or their citizens. And because those matters ordinarily are appropriate for uniform national treatment rather than diversified local disposition, as well where Congress has not acted affirmatively as where it has, they are more fittingly determinable by independent federal judicial decision than by reference to varying state policies. Standard Oil, 332 U.S. at 311, 67 S.Ct. at 1610. Finally, the Court held that Congress, not the judiciary, has the responsibility of creating any new legal basis on which the government is entitled to recover. Congress," }, { "docid": "2761519", "title": "", "text": "if such action or proceeding is not commenced within six months after the first day in which care and treatment is furnished by the United States in connection with the injury or disease involved, institute and prosecute legal proceedings against the third person who is liable for the injury or disease, in a State or Federal court, either alone (in its own name or in the name of the injured person, his guardian, personal representative, estate, dependents, or survivors) or in conjunction with the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors.” Subsection (a) of the Medical Care Recovery Act unmistakably confers on the government what the congressional reports describe as an “independent right of recovery” from the tortfeasor of the reasonable value of the care and treatment it furnishes to the injured person. What is involved here is the construction of the Act’s remedial or procedural provisions. These are not to be construed strictly against the government, but rather in aid of the substantive right-which the statute has created. See Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). Congress did not intend to limit the primary right of recovery in specifying the right of subrogation in aid of it. This is inherent in the provision itself, for the grant of an equitable remedy of subrogation is not from its nature a limitation on a right of action. The legislative history of the Act explains why the provision for sub-rogation appears in subsection (a), instead of subsection (b) dealing with enforcement procedure, where it would be more appropriate. The inter-agency committee which drafted the original bill did not create an independent right of recovery in the government, but contented itself with meeting the Supreme Court’s holding that without Congressional authorization the government had no right of subrogation, and left the dimensions of that right dependent upon state law doctrines of subrogation. The bill was amended to confer on the government an independent right of action and to free its right of subrogation from the vagaries of state law." }, { "docid": "3107840", "title": "", "text": "amendments was to clarify that the Government’s right of sub-rogation is distinct from its right of assignment. Referring to the right of sub-rogation conferred upon the Government pursuant to clause (1) of subsection (a), the legislative history provides: “This amendment makes clear that the United States is granted a distinct right to recover its costs and that this right is to be effectuated through a partial subroga tion to any right which the [federal beneficiary] ... may have to proceed against the negligent third party.” Id. Thus, it was made clear that the Government’s right of subrogation is an independent right of action created by federal statute and that such right is not subject to and cannot be limited by state laws pertaining to the assignment of personal injury claims. Cf id. (“Again, by striking out the words ‘subrogation or assignment’ and inserting the [new language in clause (1) of subsection (a) ], it is again emphasized that the remedy of the Government to assert its rights to recover the cost of medical and surgical services is provided by this legislation.”). Thus Merrigan was incorrect when it concluded that Congress amended the original bill so that clause (1) of subsection (a) would confer two distinct claims upon the Government, one independent and the other subrogatory. Not surprisingly, Mer-rigan has been abrogated on this point by the Third Circuit’s subsequent decision in Heusle, 628 F.2d at 837 (“The operation of this statute in the context of a routine negligence case is relatively straightforward; the government simply stands in the position of a favored subrogee to the claim of an injured party against the tort-feasor.”). The plain language of the statute, the established legal authority as well as common sense all belie the Government’s contention that it has two separate claims under the first clause of subsection (a) of the MCRA. An independent, non-subroga-tory claim would be utterly meaningless for the Government and it is reasonable to surmise that Congress granted the Government subrogatory rights under the MCRA so that its otherwise hollow claim would have some teeth. The unavoidable conclusion is" }, { "docid": "19861965", "title": "", "text": "was admitted to the VA hospital with the expectation that his execution of an assignment relieved him from the responsibility of paying for his care. . An assignment ordinarily extinguishes the right in the assignor and transfers it to the assignee. Restatement of Contracts § 149. . Several state courts, however, seem to have construed § 17.48(d) as allowing VA to maintain a direct action without reference to an assignment. See Higley v. Schlessman, 292 P.2d 411 (Okl.1956) ; Stafford v. Pabco Products, 53 N.J.Super. 300, 147 A.2d 286 (1958) ; Brauer v. J. C. White Concrete Co., 253 Iowa 1304, 115 N.W.2d 202 (1962) ; Marshall v. Robert’s Poultry Ranch & Egg Sales, 268 N.C. 223, 150 S.E.2d 423 (1966). . The Court began its decision in Standm-d Oil with tiie following statement: “Not often, since the decision in Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188] is this Court -asked to- create a new substantive legal liability without legislative aid and as at the common law.” 332 U.S. at 302, 67 S.Ct. at 1605. What the Court meant by “a new and substantive legal liability was clarified by the following statement: “The Government’s claim, of course, is not one for subrogation. It is rather for an independent liability owing directly to itself as for deprivation of the soldier’s services and ‘indemnity’ for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by appellants. See, Robert Marys’ Case, Vol. 5, Part 9 Co.Rep. at 113a. It is, in effect, for tortious interference by a third person with the relation between the Government and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tort-feasors.” 332 U.S. at 304, n. 5, 67 S.Ct. at 1606. . T.O.A. § 50-1004 provides in pertinent part: “For not exceeding three (3) years after notice of injury, the employer or his agent shall furnish free of charge to the employee such medical and surgical treatment . made" }, { "docid": "11995228", "title": "", "text": "be asserted by the alleged tort-feasor against the injured person.” The United States contends that in this the court below was in error, arguing that the Medical Care Recovery- Act, supra, gives the United States an independent right, not subject to state statutes of limitation, to recover against tortiously liable third persons for the reasonable value of medical and hospital expenses. Both parties thus agree that the question of whether Georgia’s statute of limitation bars the present action depends upon whether the claim urged by the United States is an “independent” one or is rather “derivative” and “secondary” to the claim of the person actually injured, and hence subject to all of the state-law defenses that would be available against the injured individual. The Medical Care Recovery Act, supra, was Congress’s belated response to the result reached in United States v. Standard Oil of California, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947), in which the United States sought to recover the cost of hospitalization and pay expended by it as the result of the injury of a soldier hit by a truck negligently operated by the defendant. The United States Supreme Court denied recovery and indicated that it was the function and responsibility of Congress to impose such a liability on tort-feasors to reimburse the United States for medical expenses. The Court characterized the government’s claim as “not one for subrogation,” but “rather for an independent liability owing directly to itself as for deprivation of the soldier’s services and ‘indemnity’ for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by [the defendant].” The bill, as introduced in the House of Representatives, however, gave the United States only a derivative right, “subrogated to any right or claim that the injured * * * person * * * has against such third person with respect to the care and treatment so furnished or to be furnished.” The various reports and comments directed to this proposed legislation strongly suggest that the government was to have only a subrogated right, subject to “all equities" }, { "docid": "20947222", "title": "", "text": "passage of § 2651 also clearly shows that the right created by the statute was not solely one of subrogation to the right of the tort victim. The need for a statutory right in the government to recover from a tortfeasor the reasonable value of medical treatment given a serviceman victimized by a tort was the first enunciated in United States v. Standard Oil of California, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947). There, as here, the government sought to recover the reasonable value of medical care rendered a serviceman, a tort victim, after the serviceman had given the tortfeasor a release. The government sought to avoid the effect of the release by asserting a previously unrecognized right of recovery independent of the serviceman's cause of action. The Supreme Court characterized the government's claim as follows: \"The Government's claim, of course, is not one for subrogation. It is rather for an independent liability owing directly to itself as for deprivation of the soldier's services and `indemnity' for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by the appellants. * * * J~ is, in effect, for tortious interference by a third person with the relation between the Gov- eminent and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tortfeasors.” 332 U.S. at 304, n. 5, 67 S.Ct. at 1606. In holding that recognition of such novel rights should come from the Congress rather than the judiciary the court further discussed the nature of the rights asserted in light of analogous situations. “Bringing the argument down to special point, counsel has favored us with scholarly discussion of the origins and foundations of liabilities considered analogous * * *. These embrace particularly the liabilities created by the common law, arising from tortious injuries inflicted upon persons standing in various special legal relationships, and causing harm not only to the injured person but also, as for loss of services and assimilated injuries, to the person to" }, { "docid": "9583868", "title": "", "text": "1968); United States v. Merrigan, 389 F.2d 21 (3rd Cir. 1968); United States v. Wittrock, 268 F.Supp. 325 (E.D.Pa.1967). The issue which has created some uncertainty under the Medical Care Recovery Act is the method by which the United States may enforce this independent right. The enforcement provision, section 2651(b), states: “The United States may, to enforce such right, (1) intervene or join in any action or proceeding brought by the injured or diseased person * * against the third person who is liable for the injury or disease; or (2) if such action or proceeding is not commenced within six months after the first day in which care and treatment is furnished by the United States in connection with the injury * * * involved, institute and prosecute legal proceedings against the third person who is liable for the injury * * Thus, the statute authorizes the United States to enforce its independent right either by intervention in a suit brought by the injured party, or on its own if no such action is brought for six months. But the statute is silent on the situation involved in the instant case; the injured person did institute a legal action against the tortfeasor within six months, but the United States did not intervene. However, since the decision of the district court in this case, two Circuits have decided that the United States may bring an independent action against the tort-feasor despite its failure to intervene. York, supra; Merrigan, supra. We agree that the United States may maintain this suit against the Housing Authority, following the reasoning of the York and Merrigan courts. The key to the interpretation of section 2651 (b) is that it is phrased in permissive, rather than mandatory, terms. It states that the United States may intervene in an action brought by the injured party against the tortfeasor. Especially since section (a) gives the United States an independent right of recovery, such permissive language cannot be read as meaning that it is the exclusive method by which the United States may enforce its right. “When a specific" }, { "docid": "20947223", "title": "", "text": "duty to care for him consequent upon the injuries inflicted by the appellants. * * * J~ is, in effect, for tortious interference by a third person with the relation between the Gov- eminent and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tortfeasors.” 332 U.S. at 304, n. 5, 67 S.Ct. at 1606. In holding that recognition of such novel rights should come from the Congress rather than the judiciary the court further discussed the nature of the rights asserted in light of analogous situations. “Bringing the argument down to special point, counsel has favored us with scholarly discussion of the origins and foundations of liabilities considered analogous * * *. These embrace particularly the liabilities created by the common law, arising from tortious injuries inflicted upon persons standing in various special legal relationships, and causing harm not only to the injured person but also, as for loss of services and assimilated injuries, to the person to whom he is bound by the relation’s tie. Such, for obvious examples, are the master’s rights of recovery for loss of the services of his servant or apprentice; the husband’s similar action for interference with the marital relation, including loss of consortium as well as the wife’s services; and the parent’s right to indemnity for loss of a child’s services, including his action for a daughter’s seduction.” In all the varied causes of action listed above as well as the right asserted here under section 2651, the cause of action against the tortfeasor was an independent claim which could not be asserted by the victim. Thus the injured servant cannot seek damages for his master’s loss of the servant’s services; the injured wife, her husband’s loss of consortium; nor the injured child, his parent’s right to the child’s services.' That the independent right asserted by the government in Standard Oil is the same right which the Congress intended to create through § 2651 is clear. Congress has acknowledged that the stimulus to passage of §" }, { "docid": "1518868", "title": "", "text": "veteran. See., e. g., United States v. Automobile Club Ins. Co., 522 F.2d 1 (5th Cir. 1975); United States v. United Services Automobile Ass’n, 431 F.2d 735 (5th Cir. 1970); United States v. Government Employees Ins. Co., 461 F.2d 58 (4th Cir. 1972); United States v. State Farm Mutual Automobile Ins. Co., 455 F.2d 789 (10th Cir. 1972). United States v. Standard Oil of California, 322 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947), was not a subrogation case, and reliance on the denial of recovery to the Government in that case is misplaced. In Standard Oil the Supreme Court held that, in the absence of legislation providing a right of recovery, the Government could not recover from a tort-feasor amounts expended for an injured soldier’s hospitalization and for his compensation paid during disability. The injured soldier had previously accepted payment from the tort-feasor’s insurer and executed a release. The case dealt only with the Government’s independent right of recovery against the tort-feasor. The Court noted expressly [t]he Government’s claim, of course, is not one for subrogation. It is rather for an independent liability owing directly to itself as for deprivation of the soldier’s services and “indemnity” for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by appellants. ... It is, in effect, for tortious interference by a third person with the relation between the Government and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tort-feasors. 332 U.S. at 304 n. 5, 67 S.Ct. at 1606 (citation omitted). Here the Government seeks no independent right of recovery, but only subrogation through voluntary assignments to the rights of the injured veteran-employees. There is no chance of double liability, as was the case in Standard Oil. The assignments operate to divest the veteran-employees of any rights they might have for the hospital cost and medical care. See United States v. Kirkland, 405 F.Supp. 1024 (E.D.Tenn., 1976). Standard Oil does not preclude the Government’s subrogation to a veteran-employee’s" }, { "docid": "3107959", "title": "", "text": "Machine Co., 558 F.2d 761, 765 n. 4 (5th Cir.1977) (observing that the MCRA provides the right to recover the reasonable value of medical care provided to a federal beneficiary from a third-party tort-feasor and that such right is \"subrogated to any right or claim that the individual shall have against the tort-feasor”). For these reasons, Haynes was merely recognizing that the Government’s single right of recovery is imbued with both characteristics. Like Haynes, the Ninth Circuit stated that \"the statute gives the United Stales an independent right of recovery against the tortfea-sor; the United States is not merely subrogat-ed.” United States v. Housing Authority of the City of Bremerton, 415 F.2d 239, 241-43 (9th Cir.1969). As support for this statement, Bremerton cited York. But in York, the Sixth Circuit held that the United States has but one claim. In addition, Bremerton held that the Government’s claim hinged upon it being able to prove that the defendant's tortious behavior caused the federal beneficiary's -injury. Thus, as was the case with Haynes, the court was simply recognizing that the Government’s claim has the dual characteristic of being both independent and subrogatory. . Most courts have in fact held that the Government’s rights under the MCRA are subject to substantive state law defenses such as contributory negligence. Haynes, 445 F.2d at 909 (If the injured party to whose rights the Government was subrogated was barred from recovery due to his contributory negligence, \"[t]hen the United States [also] would be barred from recovery because the existence of [this defense] would negate the creation of any tort liability upon the third party.”); Housing Authority of Bremerton, 415 F.2d at 243 (\"Where the injured party is himself negligent, and where under state law that contributory negligence absolves the third person from liability, then the United States cannot recover from that third person. This is what the statute must mean....\"). In Housing Authority of Bremerton, the Government was seeking to recover the costs of medical care that it had provided to a child allegedly injured by the negligence of the Housing Authority. 415 F.2d at 240." }, { "docid": "2761520", "title": "", "text": "Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). Congress did not intend to limit the primary right of recovery in specifying the right of subrogation in aid of it. This is inherent in the provision itself, for the grant of an equitable remedy of subrogation is not from its nature a limitation on a right of action. The legislative history of the Act explains why the provision for sub-rogation appears in subsection (a), instead of subsection (b) dealing with enforcement procedure, where it would be more appropriate. The inter-agency committee which drafted the original bill did not create an independent right of recovery in the government, but contented itself with meeting the Supreme Court’s holding that without Congressional authorization the government had no right of subrogation, and left the dimensions of that right dependent upon state law doctrines of subrogation. The bill was amended to confer on the government an independent right of action and to free its right of subrogation from the vagaries of state law. This was accomplished by adding immediately before the provision regarding subrogation in subsection (a) a new provision that the United States “shall have a right to recover from said third person the reasonable value of the care and treatment so furnished”. The right of recovery was thus conferred on the government and subrogation was made one of the remedial consequences of the government’s right, a subsidiary equitable remedy, which did not limit the primary right. The question then remains whether subsection (b), written in permissive rather than mandatory terms, cuts down the government’s independent right of action established in subsection (a). The purpose cannot have been to destroy entirely the government’s right to bring an independent suit. There is no contention that the right to sue does not clearly exist if the injured person fails to sue the tortfeasor within six months of his receipt of medical care, for the statute literally declares that in such a case the government may bring its action “alone”, if it so chooses. Equally, the injured party who has" }, { "docid": "11995229", "title": "", "text": "of the injury of a soldier hit by a truck negligently operated by the defendant. The United States Supreme Court denied recovery and indicated that it was the function and responsibility of Congress to impose such a liability on tort-feasors to reimburse the United States for medical expenses. The Court characterized the government’s claim as “not one for subrogation,” but “rather for an independent liability owing directly to itself as for deprivation of the soldier’s services and ‘indemnity’ for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by [the defendant].” The bill, as introduced in the House of Representatives, however, gave the United States only a derivative right, “subrogated to any right or claim that the injured * * * person * * * has against such third person with respect to the care and treatment so furnished or to be furnished.” The various reports and comments directed to this proposed legislation strongly suggest that the government was to have only a subrogated right, subject to “all equities and defenses” which could have been exercised against the injured person. As a result of hearings by the House of Representatives Judiciary Committee, however, the bill was amended, in part we feel, to make clear that the United States was to have an independent right of recovery, apart from any rights the injured party might have against the tort-feasor. That this was one purpose of the amendments is shown by the comments made by the House Judiciary Committee in its report on the bill, as amended and as passed by the Senate without change. Whatever ambiguity remains is a result of that portion of the Act which states that the government’s right to recover shall “be subrogated to any right or claim that the injured or diseased person * * * has against such third person * * This language has led most courts which have considered the problem now before us to hold that the Medical Care Recovery Act, supra, not only creates an independent right in the United States to recover from a" }, { "docid": "3107841", "title": "", "text": "services is provided by this legislation.”). Thus Merrigan was incorrect when it concluded that Congress amended the original bill so that clause (1) of subsection (a) would confer two distinct claims upon the Government, one independent and the other subrogatory. Not surprisingly, Mer-rigan has been abrogated on this point by the Third Circuit’s subsequent decision in Heusle, 628 F.2d at 837 (“The operation of this statute in the context of a routine negligence case is relatively straightforward; the government simply stands in the position of a favored subrogee to the claim of an injured party against the tort-feasor.”). The plain language of the statute, the established legal authority as well as common sense all belie the Government’s contention that it has two separate claims under the first clause of subsection (a) of the MCRA. An independent, non-subroga-tory claim would be utterly meaningless for the Government and it is reasonable to surmise that Congress granted the Government subrogatory rights under the MCRA so that its otherwise hollow claim would have some teeth. The unavoidable conclusion is that the Government has but one claim, and it is both independent and subrogatory in character. See York, 398 F.2d at 584 (“[T]he right of the United States is an independent right, subrogated only in the sense that the person sued by the Government must be liable to the injured person in tort.”); Heusle, 628 F.2d at 837 (“[T]he government simply stands in the position of a favored subrogee to the claim of an injured party against the tort-feasor.”); Fort Benning, 387 F.2d at 887 (“[Pjroperly construed, the [MCRA] creates in the United States an independent right of recovery. This right, however, is ‘subrogated’ ....”); In re Orthopedic Bone Screw Products Liability Litig., 176 F.R.D. 158, 179 (E.D.Pa.1997); see also Transcript, August 6, 1998 at 194 (counsel for the United States stating that while it “ha[s] an independent claim against the [D]ebtor,” such claim is also “derivative of [the claimant’s] ... rights”). 3. Except For Statutes of Limitation, State Law Provides the Rule of Authority Any lawsuit that the federal beneficiary might initiate against the" }, { "docid": "6395206", "title": "", "text": "liable only “in accordance with the law of the place where the act or omission occurred”, which, in this case, was in the State of Virginia. There has been no argument submitted by counsel as to the law of that particular State with respect to the subject matter, and if the laws of the several States are to control with respect to Army surgeons, there may be resultant lack of uniformity in the administration of the Act dependent upon varying laws of the particular States rather than on uniform federal law applicable to army officers wherever stationed temporarily. In this connection it was said by Mr. Justice Rutledge in his opinion in United States v. Standard Oil Co., supra, in considering the question as to whether the United States was subrogated to the civil rights of a soldier injured by a private party [67 S.Ct. 1609]— “Not only is the government-soldier relation distinctively and exclusively a creation of federal law, but we know of no good reason why the Government’s right to be indemnified in these circumstances, or the lack of such a right, should vary in accordance with the different rulings of the several states, simply because the soldier marches or today perhaps as often flies across state lines.” But relevant, or indeed important even, as these considerations may be I am not presently convinced that the broad and comprehensive language of the Tort Claims Act should be narrowed by construction to exclude a case'not included in the numerous exceptions expressed in the Act itself. The contention to the contrary would seemingly bar any redress to a soldier for the negligent acts of other soldiers under any circumstance (combatant activities of course being specially excepted by the Act). Thus, for instance, a soldier on furlough injured by the negligent action of another soldier on active duty as a result of an automobile collision, would not be entitled to sue under the Tort Claims Act. In view of the novelty and difficulty of the question presented by the motion to dismiss, I have concluded that it should, be overruled at" }, { "docid": "9583875", "title": "", "text": "against the parents. But as already shown, the government has an independent right to recovery; it is not merely a subrogee. Furthermore, recovery by the parents is forbidden if they are contributorily negligent because otherwise they would profit in spite of their own wrongdoing. However, the United States has been guilty of no wrongdoing, and the policy that excludes recovery by the parents is inapplicable to the United States. We hold that the United States may properly' maintain this suit, and that contributory negligence of the parents as a defense is not open to the Housing Authority. The parties have stipulated that the reasonable value of the medical care furnished by the United States is $3275.00. All elements of liability under the Medical Care Recovery Act have been established. The judgment of the district court is reversed, and the cause is remanded to the district court with instructions to enter a judgment in favor of the United States in the sum of $3275.00. . The issue of the parents’ alleged contributory negligence did not arise in the prior suit, since as a matter of Washington state law the negligence of a parent may not be imputed to a child. . The United States is not subject to a state’s statute of limitations when suing under the Medical Care Recovery Act. United States v. Gera, 409 F.2d 117 (3rd Cir. 1969)." } ]

[ { "docid": "9816905", "title": "", "text": "United States v. Manner, 887 F.2d 317, 324 (D.C.Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990). Severance is due only if the evidence against one’s co-defendants is “far more damaging” than the evidence facing the accused, making it unreasonable to expect a jury to compartmentalize the evidence. Id.; see also United States v. Sampol, 636 F.2d 621, 647 (D.C.Cir.1980). Where virtually all the evidence adduced at trial concerns a common course of conduct during one transaction or event, as is the case here, severance need not be granted. That two incidents concerning prior crimes of Bennett’s co-defendants were raised at trial does not require severance where the common chord of evidence bears upon the guilt or innocence of all four defendants. C. Sufficiency of the Evidence Each of the four appellants requests reversal on the grounds that the Government introduced insufficient evidence to support a conviction for possession with intent to distribute. Because of the respect owed by appellate courts to jury verdicts, we review the evidence and all legitimate inferences in the light most favorable to the Government. United States v. Hernandez, 780 F.2d 113, 120 (D.C.Cir.1986); United States v. Pardo, 636 F.2d 535, 547 (D.C.Cir.1980). We have regularly and definitely stated that, while proximity to drugs is not enough to prove possession, evidence of some other factor — including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may surpass the minimum threshold of evidence needed to put the question of guilt to a jury. See, e.g., United States v. Dunn, 846 F.2d 761, 763-64 (D.C.Cir.1988) (“ ‘[Pjresence, proximity or association may establish a prima facie case of drug possession when colored by evidence linking the accused to an ongoing criminal operation of which that possession is a part’.... [The defendant’s] connection to the gun [on a nearby couch] suggests he exercised control over the drugs in the house.” (citation omitted)); Hernandez, 780 F.2d at 117 (proximity with a gesture, motive or purpose in using the item," } ]

[ { "docid": "4421916", "title": "", "text": "On January 25,1994, a federal Grand Jury sitting in the District of Maryland returned a one-count indictment charging Milton with possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g)(1). The ease went to trial and the jury returned a verdict of guilty. The district court sentenced Milton to 120 months’ imprisonment, and Milton noted a timely appeal. II Prior to trial, Milton moved to suppress the firearm, contending that the warrantless search of the vehicle violated his Fourth Amendment rights. The district court held that the warrantless search was justified as a search incident to a lawful arrest and a protective search under the principles set forth in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). All warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnote omitted). One such exception is a search incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471-72, 38 L.Ed.2d 427 (1973). In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460, 101 S.Ct. at 2864 (footnote omitted). Under Belton, “the police may also examine the contents of any containers found within the passenger compartment.” Id.; see also United States v. McCraw, 920 F.2d 224, 228 (4th Cir.1990) (“Incident to an automobile occupant’s lawful arrest, police may search the passenger compartment of the vehicle and examine the contents of any containers found within the passenger compartment.”). “Containers,” as defined in Belton, includes the glove compartment. Belton, 453 U.S. at 460 n. 4, 101 S.Ct. at 2864 n. 4. Belton applies “even if the arrestee has been separated from [the vehicle] prior to the search of" }, { "docid": "7073221", "title": "", "text": "to establish constructive possession, evidence of some other factor — including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may suffice.” Alexander, 331 F.3d at 127 (internal quotation marks and citations omitted). In this case, several Alexander-type “plus factors” allowed the jury to infer Booker’s “connection with [the] gun.” The government’s drug expert testified that drug dealers have a “motive” — namely, defense of themselves and their drug stashes — to carry guns. The undercover police officer watched (through his rearview mirror) as Booker walked up the street and made “a gesture implying control” over the gun, which was stashed immediately next to the Newport pack. Booker then made a “statement indicating involvement in an enterprise” when he told the arrest team that he was looking for his Newport cigarettes. Coupled with the fact that the stash was never more than 50-80 feet away from Booker, these factors constitute ample evidence to find constructive possession under Alexander and Wahl. Moreover, Booker’s indisputable “dominion and control over” the drugs, Wahl, 290 F.3d at 376, further supports our conclusion that he “constructively possessed” the nearby gun. The government’s drug expert testified about the unique relation between drug stashes and firearms, stating that one often “can’t do without the other.” The expert’s testimony accords with our prior caselaw, which “has frequently recognized that guns and drugs go together in drug trafficking.” United States v. McLendon, 378 F.3d 1109, 1113 (D.C.Cir.2004); see also United States v. Brown, 334 F.3d 1161, 1171 (D.C.Cir.2003) (noting guns and drugs are often present together, and therefore, the presence of one can be used to infer the presence of the other); United States v. Conyers, 118 F.Sd 755, 757 (D.C.Cir.1997) (same); United States v. Payne, 805 F.2d 1062, 1065-66 (D.C.Cir.1986) (same). Thus, we reaffirm that “evidence of a defendant’s possession of [guns] can properly be used to show his connection to [drugs],” McLendon, 378 F.3d at 1113, and vice versa. See United States v. Evans, 888 F.2d 891, 896 (D.C.Cir.1989) (“The government" }, { "docid": "22959552", "title": "", "text": "the proceeds of narcotics transactions in New York was properly admitted and was further evidence from which the jury could infer that the wide-spread conspiracy alleged in the indictment existed and that Chavez was a member of it. 2. Chavez’s Gun Possession in Furtherance of the Conspiracy Chavez also contends that the evidence was insufficient to support his conviction on count two, ie., possession of a firearm found in his apartment, equipped with a silencer, in furtherance of the count-one narcotics conspiracy of which he was convicted, see 18 U.S.C. § 924(c)(1)(A) (prohibiting possession of a firearm for such a purpose), and id. § 924(c)(l)(B)(ii) (prescribing enhanced punishment if the firearm is equipped with a silencer). Chavez challenges the sufficiency of the evidence as to the elements of possession and furtherance. In order to establish that a defendant possessed a firearm within the meaning of § 924(c), the government need not prove that he physically possessed it; proof of constructive possession is sufficient. See, e.g., United States v. Finley, 245 F.3d 199, 203 (2d Cir.2001), cert. denied, 534 U.S. 1144, 122 S.Ct. 1101, 151 L.Ed.2d 997 (2002); cf. United States v. Rivera, 844 F.2d 916, 925-26 (2d Cir.1988) (applying constructive possession principles in upholding conviction under the predecessor to 18 U.S.C. § 922(g), which, inter alia, made it unlawful for a convicted felon to possess a firearm). Constructive “[possession of a firearm may be established by showing that the defendant knowingly [had] the power and the intention at a given time to exercise dominion and control over [it].” United States v. Finley, 245 F.3d at 203 (internal quotation marks omitted); see, e.g., United States v. Rivera, 844 F.2d at 925; United States v. Tribunella, 749 F.2d 104, 111-12 (2d Cir.1984) (where there was evidence that the defendant’s other family members knew nothing about guns and that the defendant owned guns and had ammunition and a magazine about guns in his bedroom, the evidence was sufficient to support a finding that he constructively possessed a gun found above the ceiling in his bedroom). In the present case, the record included the" }, { "docid": "14493268", "title": "", "text": "furtive efforts to conceal the firearm could meaningfully contribute to an officer’s reasonable conclusion that there was probable cause to believe that Mr. McGehee was engaged in criminal conduct. See Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (“[D]eliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.”); United States v. McCarty, 862 F.2d 143, 147 (7th Cir.1988) (concluding that there was “probable cause to believe that [defendant] was a convicted felon who possessed a firearm” and observing that “his furtive gesture when he was stopped, reinforced the reasonableness of the officers’ belief that [he] had committed or was committing a crime”); United States v. Sanders, 631 F.2d 1309, 1312 (8th Cir.1980) (holding that there was probable cause to arrest defendant and that defendant’s “furtive movement” and “his contemporaneous facial expression” provided support for that result); see also 2 Wayne R. LaFave, Search and Seizure § 3.6(d), at 351 (2004) (“Observation of what reasonably appear to be furtive gestures is a factor which may properly be taken into account in determining whether probable cause exists.”). More specifically, on these facts, Mr. McGehee’s furtive conduct involving firearms would have meaningfully contributed to probable cause to believe that Mr. McGehee was committing a narcotics-related offense. Officer Holloway already had a legally sound basis for believing that there were narcotics in the vehicle. And, we have long recognized the close association between firearms and drug-trafficking. See, e.g., Winder, 557 F.3d at 1138 (suggesting that firearms “are commonly regarded as tools of the drug trade” (citing United States v. Burkley, 513 F.3d 1183, 1189 (10th Cir.2008))); see also United States v. Vanover, 630 F.3d 1108, 1118 (8th Cir.2011) (noting that “drug dealers commonly use firearms for intimidation and protection”). Finally, the evidence found on Mr. McGehee’s person was obtained properly pursuant to a search" }, { "docid": "12086619", "title": "", "text": "cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990) (in a conviction under § 922 defendant demonstrated constructive possession by attempting to open car with proper set of keys where a bag of cocaine and a weapon were found under the driver’s seat), and the gun was not found inside anything which belonged to Chairez. See United States v. Hernandez, 13 F.3d 248, 252 (7th Cir.1994) (one factor that demonstrated possession of drugs was that defendant had claim ticket to suitcase containing drugs); United States v. Barbee, 968 F.2d 1026, 1035 (10th Cir.1992) (defendant exercised control over briefcase that contained gun). The government produced no evidence that the defendant touched the gun, see United States v. Gutierrez, 978 F.2d 1463, 1466 (7th Cir.1992) (defendant had pistol in waistband of pants), owned a gun or had ever been given a gun, see United States v. Wight, 968 F.2d 1393, 1397 (1st Cir.1992) (firearm discovered in van used to transport drugs combined with evidence that a gun was delivered to defendant’s residence the day before the drug transaction enough to sustain conviction). Although the possession of firearms is common in the course of drug trafficking, United States v. Allen, 930 F.2d 1270, 1275 (7th Cir.1991), a defendant’s presence during a drug transaction is not sufficient to prove that the defendant knew firearms were present. See United States v. Powell, 929 F.2d 724, 728 (D.C.Cir.1991). Cf. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (“mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person”) (citing Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). The only evidence that demonstrated Chairez’ knowledge of the gun was his presence as a passenger in a car, driven by someone else and owned by an unidentified third party, during a drug transaction, while a loaded gun lay under his seat. Although the district court asserted that it was making a credibility determination, even in the absence of Chairez’ testimony, the" }, { "docid": "12086620", "title": "", "text": "before the drug transaction enough to sustain conviction). Although the possession of firearms is common in the course of drug trafficking, United States v. Allen, 930 F.2d 1270, 1275 (7th Cir.1991), a defendant’s presence during a drug transaction is not sufficient to prove that the defendant knew firearms were present. See United States v. Powell, 929 F.2d 724, 728 (D.C.Cir.1991). Cf. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (“mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person”) (citing Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). The only evidence that demonstrated Chairez’ knowledge of the gun was his presence as a passenger in a car, driven by someone else and owned by an unidentified third party, during a drug transaction, while a loaded gun lay under his seat. Although the district court asserted that it was making a credibility determination, even in the absence of Chairez’ testimony, the government did not meet its burden of proving knowledge on the part of Chairez. Lurking in the background is an alternative theory of liability: the Pinkerton doctrine. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Under the Pinkerton doctrine a defendant may be found guilty of violating § 924(c) if a co-conspirator used or carried a firearm during and in relation to the conspiracy. United States v. Goines, 988 F.2d 750, 774 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993). A co-conspirator can be held vicariously liable under Pinkerton despite his claims that he did not know or suspect the gun’s presence in the car. Carson, 9 F.3d at 591. This, it appears, might have been a likely theory under which to prosecute Chairez for possession of the firearm. When a loaded gun is found within reach during a drug transaction, a factfinder might reasonably infer that the gun was intended for the furtherance of a drug conspiracy. The government, therefore, might" }, { "docid": "14493267", "title": "", "text": "the other vehicle occupants. See Maryland v. Pringle, 540 U.S. 366, 372, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (concluding that there was probable cause to arrest a defendant where, notably, there were “[f]ive plastic glassine baggies of cocaine ... behind the back-seat armrest ... accessible to all three men” riding in the vehicle and “[u]pon questioning, the three men failed to offer any information with respect to the ownei’ship of the cocaine”); United, States v. McKissick, 204 F.3d 1282, 1292 (10th Cir.2000) (concluding that the government established “the necessary nexus” between the driver of the jointly occupied vehicle and the narcotics and, more specifically, noting that “[t]he observance of drugs in plain view is a compelling circumstance from which knowledge may be inferred”); cf. United States v. Bowen, 437 F.3d 1009, 1016 (10th Cir.2006) (noting that defendant’s “proximity to the drugs would be insufficient evidence [of possession], when considered in isolation, ... [b]ut when considered with the rest of the evidence presented, his close proximity to the drugs is probative” (emphases added)). Mr. McGehee’s furtive efforts to conceal the firearm could meaningfully contribute to an officer’s reasonable conclusion that there was probable cause to believe that Mr. McGehee was engaged in criminal conduct. See Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (“[D]eliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.”); United States v. McCarty, 862 F.2d 143, 147 (7th Cir.1988) (concluding that there was “probable cause to believe that [defendant] was a convicted felon who possessed a firearm” and observing that “his furtive gesture when he was stopped, reinforced the reasonableness of the officers’ belief that [he] had committed or was committing a crime”); United States v. Sanders, 631 F.2d 1309, 1312 (8th Cir.1980) (holding that there was probable cause to arrest defendant and that defendant’s “furtive" }, { "docid": "14995518", "title": "", "text": "B. FLETCHER, Circuit Judge: We review this appeal for the second time on remand from the United States Supreme Court. The Court on May 4, 2009 granted certiorari, and vacated and remanded our disposition for further consideration in light of its recent decision in Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). We hold that Gant requires that Appellant Ricardo Gonzalez’s motion to suppress be granted and, therefore, Gonzalez’s conviction be reversed. Gonzalez had previously been convicted of Possession of a Firearm and Ammunition by a Prohibited Person, in violation of 18 U.S.C. § 922(g)(1). Gonzalez’s conviction resulted from a firearm found during a June 19, 2006 traffic stop of a car in which Gonzalez was riding. The police, following the arrest of another passenger for out-standing warrants, searched the passenger compartment of the car and discovered a loaded 9 millimeter Beretta firearm inside the glovebox. Gonzalez filed a motion to suppress, asserting the search of the car violated his Fourth Amendment rights, which the district court denied. Following his conviction on November 28, 2006, Gonzalez appealed his conviction and sentence, asserting in part that the denial of his motion to suppress was in error. We affirmed the district court on all aspects of the appeal. United States v. Gonzalez, 290 Fed.Appx. 51 (9th Cir.2008). Our ruling affirming denial of the motion to suppress rested on the Supreme Court’s holding in New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which has been read by our court as permitting a warrantless vehicle search incident to the arrest of an occupant of the vehicle. Gonzalez, 290 Fed.Appx. at 52; see United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir.2006) (“Applying the Belton rule, we have held that a warrant-less automobile search will be valid if it is ‘roughly contemporaneous with the arrest.’ ”). In Gant, the Court affirmed the Arizona Supreme Court’s holding that the broad reading of Belton by our and other courts was error. Reading Belton more narrowly, the Court announced as the rule for vehicle searches" }, { "docid": "23260576", "title": "", "text": "609. However, “[t]he defendant’s mere presence in a car where a gun is found and proximity to a gun are insufficient proof of constructive possession.” Id.See also United States v. Arnold, 486 F.3d 177, 183 (6th Cir.2007) (en banc) (“Presence alone near a gun ... does not show the requisite knowledge, power, or intention to exercise control over the gun to prove constructive possession.”) (internal citation and quotation marks omitted). Other incriminating evidence must supplement a defendant’s proximity to a firearm in order to tip the scale in favor of constructive possession. Grubbs, 506 F.3d at 439. Consequently, “ ‘evidence of some other factor — including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may suffice.’ ” Newsom, 452 F.3d at 610 (quoting United States v. Alexander, 331 F.3d 116, 127 (D.C.Cir.2003)). Moreover, “it is not enough that the defendant possessed a firearm at some unidentified point in the past; the evidence must prove that the defendant possessed the same handgun identified in the indictment.” Grubbs, 506 F.3d at 439 (internal citation and quotation marks omitted). See also Schreane, 331 F.3d at 560 (evidence must show that the defendant “knowingly possessed] the firearm and ammunition specified in the indictment.”). In Arnold, we surveyed a broad spectrum of felon-in-possession cases in which we have evaluated the sufficiency of the evidence to determine whether a defendant’s alleged “mere presence” near a weapon will sustain a conviction. See Arnold, 486 F.3d at 181-84. We need not reiterate this precedent in detail, but conclude that the present circumstances most closely resemble those factual scenarios in which we have found a sufficient link between the weapon and the defendant so as to establish the requisite element of constructive possession. Here, there exists the additional incriminatory evidence to support a reasonable inference that Campbell constructively possessed the Colt pistol found in Wright’s car under the passenger seat. Wright testified at trial that on the day in question, Campbell, her friend, called and asked her to drive him and his" }, { "docid": "9826150", "title": "", "text": "the car was lawful. “[W]hen a [police officer] has made a lawful custodial arrest of the occupant of an automobile, [the officer] may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981) (footnotes omitted). “[T]he police may also examine the contents of any containers [whether opened or closed] found within the passenger compartment.” Id. (citations and footnote omitted). Here, Preston lawfully arrested appellant because he had probable cause to believe that appellant’s driver’s license had been suspended. Following appellant’s arrest, the police could lawfully search the passenger compartment of the car, including the hatchback portion of the car. See United States v. Doward, 41 F.3d 789, 793-94 (1st Cir.1994) (hatchback of two-door car), cert. denied, — U.S. -, 115 S.Ct. 1716, 131 L.Ed.2d 575 (1995); United States v. Cleveland, 966 F.2d 1459 (8th Cir.1992) (per curiam) (table) (hatchback; defendant did not argue that hatchback was trunk as opposed to passenger compartment of ear) (text at 1992 WL 139360). The firearms, ammunition, some of the methamphetamine, and drug paraphernalia were found in the hatchback portion of the car. SEVERANCE OF UNLAWFUL FIREARMS POSSESSION COUNT Appellant next argues the district court abused its discretion in denying his motion to sever the unlawful firearms possession count (count IV). He argues that the joinder of the unlawful firearms possession count allowed the jury to hear otherwise inadmissible evidence about his prior convictions. Ordinarily, we review severance decisions for abuse of discretion. E.g., United States v. Felici, 54 F.3d 504, 506 (8th Cir.), cert. denied, — U.S. -, 116 S.Ct. 251, 133 L.Ed.2d 176 (1995). However, because this motion was not timely filed within 20 days of the omnibus pretrial motions or der, we may reverse only for plain error. E.g., United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993). We find no error was committed by the district court. First, the more prejudicial of the two prior convictions, that for possession of methamphetamine for sale, would" }, { "docid": "17131402", "title": "", "text": "but requests that the ease be remanded to the district court for resentencing at which time Moore will be subject to a two-level increase under the Sentencing Guidelines for possession of a weapon. We agree that Moore’s conviction under section 924(c) must be reversed, and we remand the case for resen-tencing. See United States v. Fennell, 77 F.3d 510 (D.C.Cir.1996) (per curiam). B. Sufficiency of the Evidence Moore further argues that his other convictions must be overturned for lack of sufficient evidence of possession (of either firearms or drugs), a requisite element of each of the charged crimes. In considering a sufficiency of the evidence claim, we review “the evidence de novo, in [the] light most favorable to the Government in order to deter mine whether a ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United States v. Moore, 97 F.3d 561, 563-64 (D.C.Cir.1996) (citations, omitted). We draw no distinction between direct and circumstantial evidence. United States v. Davis, 562 F.2d 681, 684 (D.C.Cir.1977) (per curiam). Criminal possession of firearms or drugs may be either actual or constructive. United States v. Raper, 676 F.2d 841, 847 (D.C.Cir.1982). Constructive possession exists when “the defendant knew of, and was in a position to exercise dominion and control over, the contraband.” United States v. Byfield, 928 F.2d 1163, 1166 (D.C.Cir.1991). While mere proximity to drugs or guns is not sufficient to establish possession, see United States v. Lucas, 67 F.3d 956, 960 (D.C.Cir.1995), “evidence of some other factor — including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may” suffice, United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990). The evidence in this case was more than sufficient to support the jury’s conclusion that Moore was in possession of the drugs and firearms found under the hood of his car. Moore was driving an automobile registered in his name. He was wearing a bullet-proof vest and an empty shoulder holster. There were three handguns concealed in the" }, { "docid": "20518821", "title": "", "text": "U.S.C. § 922(g)(1), possession can be actual or constructive. Id. Although there was evidence that Schmitt actually possessed the gun when he purchased it, he was not caught with the gun red-handed, so the government’s case was strengthened by proof that Schmitt constructively possessed the gun. “Constructive possession is a legal fiction whereby a person is deemed to possess contraband even when he does not actually have immediate, physical control of the object.” United, States v. Griffin, 684 F.3d 691, 695 (7th Cir.2012). Establishing that the defendant had exclusive control over the property where the firearm is found can be sufficient to show constructive possession, id., but the evidence. showed that Schmitt shared the residence with his girlfriend. In proving constructive possession in the context of a joint residence, “mere proximity to contraband is not enough.... Rather, ‘proximity coupled with evidence of some other factor — including connection with [an impermissible item], proof of motive, a gesture implying control, [among others] is enough to sustain a guilty verdict.’ ” Id. at 696 (quoting United States v. Morris, 576 F.3d 661, 668 (7th Cir.2009)) (emphasis added). Since proof of motive is one way to establish constructive possession in joint residence cases, motive was at issue in Schmitt’s trial. And the evidence proffered by the government was relevant to motive. The testimony that Schmitt was a drug dealer and that drugs were found in his home when he was arrested was relevant to suggest to the jury why he would have a firearm. See Fed.R.Evid. 401 (evidence is relevant if it tends to make a fact that is of consequence in determining the action more probable than it otherwise would be); United States v. Elder, 466 F.3d 1090,1091 (7th Cir.2006) (recognizing that “drug dealers often use guns and knives to protect their operations”). The drug dealing evidence could help convince a reasonable jury that Schmitt possessed the firearm found in his home, a fact that the government had to prove to secure his conviction for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1); see also United States" }, { "docid": "23011137", "title": "", "text": "support it. United States v. Schubel, 912 F.2d 952, 955 (8th Cir.1990). The standard to be applied in determining the sufficiency of the evidence is a strict one, and the finding of guilt -should not be overturned lightly. Id. 1. Felon in Possession Charge Boykin contends that the government did not present sufficient evidence that he possessed the firearms found in the search of his home, and therefore did not prove that he'violated 18 U.S.C. § 922(g) by being a felon in possession of a firearm. A conviction for violating § 922(g) may be based on constructive or joint possession of the firearm. See United States v. Woodall, 938 F.2d 834, 837-38 (8th Cir. 1991). Constructive possession of the firearm is established if the person has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself. See id. at 838. Constructive possession can be established by a showing that the firearm was seized at the defendant’s residence. United States v. Apker, 705 F.2d 293, 309 (8th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984). The evidence introduced at trial demonstrated that the house where the firearms were seized was Boykin’s residence, and Boykin admitted at the time of his arrest that he lived in that house. Boy-kin’s personal belongings were in the bedroom where the firearms were located, and at trial, Boykin’s daughter referred to the bedroom in a manner indicating that Boy-kin and his wife shared it. Boykin’s wife claimed to own the firearms; however, ownership is irrelevant to the issue of possession. United States v. Hernandez, 972 F.2d 885, 887 (8th Cir.1992). We find that the evidence was sufficient to establish constructive possession and supports the jury’s verdict on this charge. 2. Use of a Gun in Connection With a Drug Trafficking Crime Charge Boykin also argues that the government did not introduce sufficient evidence that he “used” firearms in connection with a drug trafficking crime in violation of 18 U.S.C. § 924(c). The government shows use of a firearm under § 924(c) if they" }, { "docid": "7073222", "title": "", "text": "Wahl. Moreover, Booker’s indisputable “dominion and control over” the drugs, Wahl, 290 F.3d at 376, further supports our conclusion that he “constructively possessed” the nearby gun. The government’s drug expert testified about the unique relation between drug stashes and firearms, stating that one often “can’t do without the other.” The expert’s testimony accords with our prior caselaw, which “has frequently recognized that guns and drugs go together in drug trafficking.” United States v. McLendon, 378 F.3d 1109, 1113 (D.C.Cir.2004); see also United States v. Brown, 334 F.3d 1161, 1171 (D.C.Cir.2003) (noting guns and drugs are often present together, and therefore, the presence of one can be used to infer the presence of the other); United States v. Conyers, 118 F.Sd 755, 757 (D.C.Cir.1997) (same); United States v. Payne, 805 F.2d 1062, 1065-66 (D.C.Cir.1986) (same). Thus, we reaffirm that “evidence of a defendant’s possession of [guns] can properly be used to show his connection to [drugs],” McLendon, 378 F.3d at 1113, and vice versa. See United States v. Evans, 888 F.2d 891, 896 (D.C.Cir.1989) (“The government presented evidence that [all three defendants] were engaged in a common [drug] enterprise. From this evidence a jury could reasonably infer that all three shared direct access to, and dominion and control over, the knapsack,” which contained both cocaine and guns.), cert. denied sub nom. Curren v. United States, 494 U.S. 1019, 110 S.Ct. 1325, 108 L.Ed.2d 500 (1990); compare In re Sealed Case, 105 F.3d 1460, 1465 (D.C.Cir.1997) (holding there was insufficient evidence to support constructive possession of a gun because it was physically impossible for the defendant to grab the gun during the drug sale). This case differs markedly from In re Sealed Case. There, the defendant remained inside a restaurant while his brother conducted a drug sale in a car, which was parked outside the restaurant. When the police arrested the defendant and his brother, they discovered a gun under the driver’s seat of the car. We held there was insufficient evidence to support the District Court’s conclusion that the defendant “constructively possessed” the gun because the spatial separation between the defendant," }, { "docid": "11843249", "title": "", "text": "with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Appellant reserved his right to appeal the District Court’s denial of his motion to suppress. See Fed.R.CrimP. 11(a)(2). On June 29, 2004, the District Court sentenced appellant to 36 months’ imprisonment, followed by three years’ supervised release. Gov’t En Banc Br. at 2; Appellant En Banc Br. at 2. On April 6, 2007, a divided panel of the court affirmed the District Court’s denial of appellant’s motion to suppress. On July 12, 2007, the panel’s judgment was vacated and an order was issued granting appellant’s petition for rehearing en banc. The order granting en banc review instructed the parties to address the following issue: [Wjhether during a Terry stop police officers may unzip a suspect’s jacket solely to facilitate a show-up. In addressing this question, the parties should consider whether the officers’ action was a lawful search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. United States v. Askew, No. 04-3092, Order Granting En Banc Review (D.C.Cir. July 12, 2007). The. order made clear that the only issue before the en banc court was whether the first, partial unzipping was unlawful. There is no dispute that if the partial unzipping was unlawful, the discovery of the hard object at appellant’s waist during that unzipping cannot justify the second full unzipping that yielded the gun. On April 10, 2008, after oral arguments were heard by the en banc court, an order was issued instructing the parties to submit supplemental briefs addressing the following questions: 1. Assuming, arguendo, that it is not dispositive that the unzipping was a search, was the gun evidence nonetheless inadmissible as the product of steps taken to facilitate a show-up witness’ identification, on a theory that there were not reasonable grounds for believing that unzipping the jacket would establish or negate the suspect’s connection with the crime under investigation? 2. Was the gun evidence admissible as the product of a valid protective search, on a theory that regardless of the officer’s subjective" }, { "docid": "9777401", "title": "", "text": "ORDER PER CURIAM Upon consideration of the motion for appointment of counsel; the motion for summary reversal; and the motion for summary affirmance, the opposition thereto, and the reply, it is ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. See D.C. Circuit Handbook of Practice and Internal Procedures 45 (1997). It is FURTHER ORDERED that the motion for summary reversal be denied and the motion for summary affirmance be granted. The merits of the parties’ positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C.Cir.1987) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980). The Privacy Act requires that an action be brought within two years from the date the action arose, or within two years after the discovery of a willful misrepresentation by the agency that is material to its liability. See 5 U.S.C. § 552a(g)(5). A cause of action under the Privacy Act arises when the plaintiff knew or should have known of the alleged violation. See Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987). Failure to file within the statute of limitations is jurisdictional. Thus an untimely complaint deprives the district court of subject matter jurisdiction. See Diliberti v. United States, 817 F.2d 1259, 1262-64 (7th Cir.1987); see also Bowyer v. United States Dep’t of Air Force, 875 F.2d 632, 635 (7th Cir.1989). Appellant filed his complaint well after the two-year statute of limitations had run. His complaint should thus have been dismissed for lack of subject matter jurisdiction. The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. The Clerk also is directed to publish this order." }, { "docid": "23342085", "title": "", "text": "pipe is drug paraphernalia. See WASH. REV. CODE ANN. § 69.50.102(a)(12) (defining “drug paraphernalia,” including: “Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana ... into the human body....”) (West 1997). We hold that deputy Wulick had probable cause to arrest Hartz. Cf. State v. Neeley, 113 Wash.App. 100, 52 P.3d 539, 543 (2002) (affirming denial of a motion to suppress where the defendant “possessed the drug paraphernalia in circumstances giving rise to probable cause that she was using the paraphernalia to ingest a controlled substance”). Because Wulick had probable cause to arrest Hartz, searching inside the truck was a constitutionally permissible search incident to arrest, as was a full search of Hartz’s person. See United States v. Robinson, 414 U.S. 218, 226, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Fixen, 780 F.2d 1434, 1438 (9th Cir.1986) (“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (quoting New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (internal quotation marks omitted))). While searching Hartz, the deputies lawfully discovered a list of jewelry stolen from Gem Design. While searching Hinkle’s truck, they discovered Hartz’s identification, which revealed his previous misidentifying statement. The district court correctly denied Hartz’s motion to suppress evidence. B We turn to Hartz’s argument that the jury instructions given by the district court constructively amended counts three and four of the indictment, allowing the jury to convict him of crimes that the grand jury did not charge. Counts three and four each mentioned two firearms specifically, a Smith & Wesson .357 revolver, and a Chinese 9mm semiautomatic pistol. The district court’s instructions regarding counts three and four, however, referred to “a firearm.” Hartz contends: (1) that because the indictment described two specific guns, the government had to prove that Hartz used the weapons mentioned in the indictment to commit the crimes alleged in counts three and four; (2) that the special" }, { "docid": "23260575", "title": "", "text": "contends that because Wright, the government’s primary witness, testified at trial that the handgun retrieved from the vehicle was not the same handgun she observed him holding prior to the traffic stop, arid she did not observe him place any handgun under the front passenger seat of her car, there is no evidence to establish that he possessed, either actually or constructively, the Colt pistol that was the object of the indictment. Pursuant to 18 U.S.C. § 922(g)(1), a conviction may be based on actual or constructive possession of a firearm. Grubbs, 506 F.3d at 439. Actual possession requires that a defendant have immediate possession or control of the firearm, whereas constructive possession exists when the defendant “does not have possession but instead knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others.” Id. (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973)). The element of possession can be proven by either direct or circumstantial evidence. Newsom, 452 F.3d at 609. However, “[t]he defendant’s mere presence in a car where a gun is found and proximity to a gun are insufficient proof of constructive possession.” Id.See also United States v. Arnold, 486 F.3d 177, 183 (6th Cir.2007) (en banc) (“Presence alone near a gun ... does not show the requisite knowledge, power, or intention to exercise control over the gun to prove constructive possession.”) (internal citation and quotation marks omitted). Other incriminating evidence must supplement a defendant’s proximity to a firearm in order to tip the scale in favor of constructive possession. Grubbs, 506 F.3d at 439. Consequently, “ ‘evidence of some other factor — including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may suffice.’ ” Newsom, 452 F.3d at 610 (quoting United States v. Alexander, 331 F.3d 116, 127 (D.C.Cir.2003)). Moreover, “it is not enough that the defendant possessed a firearm at some unidentified point in the past; the evidence must prove that the defendant possessed" }, { "docid": "17131403", "title": "", "text": "Criminal possession of firearms or drugs may be either actual or constructive. United States v. Raper, 676 F.2d 841, 847 (D.C.Cir.1982). Constructive possession exists when “the defendant knew of, and was in a position to exercise dominion and control over, the contraband.” United States v. Byfield, 928 F.2d 1163, 1166 (D.C.Cir.1991). While mere proximity to drugs or guns is not sufficient to establish possession, see United States v. Lucas, 67 F.3d 956, 960 (D.C.Cir.1995), “evidence of some other factor — including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may” suffice, United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990). The evidence in this case was more than sufficient to support the jury’s conclusion that Moore was in possession of the drugs and firearms found under the hood of his car. Moore was driving an automobile registered in his name. He was wearing a bullet-proof vest and an empty shoulder holster. There were three handguns concealed in the car, two of which fit into the shoulder holster Moore was wearing. These handguns were found under the hood lying near a bag filled with cocaine. In addition, the officers found a roll of duet tape under the hood. At trial, a government drug expert testified that these facts give rise to the inference that “some individuals are involved in a drug operation.” Of course, the mere fact that three handguns were found in Moore’s ear is insufficient to establish possession. However, the presence of the guns in a ear owned and operated by Moore coupled with the fact that two of the guns fit the shoulder holster worn by Moore suggests that he knew of and exercised control over the guns. The fact that Moore was driving a bullet-riddled ear and wearing a bullet-proof vest strengthens the inference. Moore’s connection to the guns suggests possession of the drugs found next to the guns and in Moore’s car. See United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988) (holding that a defendant’s connection to a" }, { "docid": "12874335", "title": "", "text": "in Newsom, in which we stated that “the defendant’s mere presence in a car where a gun is found and proximity to a gun are insufficient proof of constructive possession.” Newsom, 452 F.3d at 609. Castaño contrasts his case to United States v. Carter, 355 F.3d 920, 925 (6th Cir.2004), a case in which we rejected an insufficiency-of-the-evidence challenge and affirmed the defendant’s § 922(g) conviction because the government offered evidence that officers saw the defendant attempt to conceal the gun in the car. Finally, Castaño argues that McFadden and Herron’s testimony offered an explanation for the presence of the gun and that “even if the jury disbelieved the entire defense testimony, that disbelief cannot constitute evidence of the crimes charged that somehow substitute for knowing constructive possession in this joint occupancy situation.” Appellant Br. at 13. The government responds by arguing that ample evidence supported the jury’s finding that Castaño had constructive possession of the firearm. The government also cites our decision in Newsom, observing that we in fact affirmed the defendant’s § 922(g) conviction after stating that “ ‘[although ‘mere proximity’ to a gun is insufficient to establish constructive possession, evidence of some other factor— including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may suffice.’ ” Newsom, 452 F.3d at 610 (quoting United States v. Alexander, 331 F.3d 116, 127 (D.C.Cir.2003)). The government identifies several pieces of evidence to demonstrate the presence of other factors that, coupled with the proximity of the firearm in the truck to Castano’s position as the driver, suffice to support his conviction. Multiple officers testified about the frequency of finding firearms when making arrests for drug trafficking offenses and about the need for drug traffickers to protect themselves. Indeed, in this case Castaño pleaded guilty to possessing with intent to distribute fifty pounds of marijuana, which he had received in exchange for promising to pay the seller $40,000 after Castaño resold the drugs. This evidence provided a basis for the jury to conclude that Castaño" } ]

[ { "docid": "6415569", "title": "", "text": "the defendant. United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993); see Beasley, 2 F.3d at 1561. Consequently, a base offense level is determined by including “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G. § lB1.3(a)(l)(A). Under U.S.S.G. lB1.3(a)(l), Mertilus may be held accountable for drugs that were not related specifically to his counts of eon-viction. Mertilus participated in the sale of the 33.5 grams of cocaine base purchased on September 22, 1994. His telephone calls to Mullins on October 25 and 26, 1994, aided in effecting the purchase of 25.4 grams of cocaine base on October 26, 1994. Because of Mertilus’s participation in these two sales of crack cocaine, the district court did not err in attributing to Mertilus 58.9 grams of cocaine base as reasonably foreseeable and setting his base offense level at 32. Mertilus’s argument that the district court should have applied U.S.S.G. § 2D1.1 (n. 12), excepting cocaine amounts that he did not provide, to set his base offense level at 12 is misplaced. In relevant part, that application note specifies that “[i]n an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense.” U.S.S.G. § 2D1.1 (n. 12) (emphasis added). Because there were actual deliveries of 58.9 grams of cocaine base, the provision of which was assisted by Mertilus’s participation, the district court correctly calculated his base offense level at 32. Mertilus further contends that he should have received a two-level reduction in his base offense level under U.S.S.G. §§ 2Dl.l(b)(4) and 5C1.2(l)-(5). While section 843(b), his offense of conviction, is not listed in section 5C1.2, he argues that the underlying crime that was the basis for his sentence is implicated in that guideline and, thus, he is entitled to the two-level reduction. The government maintains that section 5C1.2 applies only to those offenses listed therein, and, since section 843(b) is not included," } ]

[ { "docid": "19799065", "title": "", "text": "after the sale, defendant discarded 32 additional ziplock bags of a substance that tested positive for opiates. District of Columbia authorities arrested defendant and later charged him in the Superior Court of the District of Columbia with unlawful distribution of heroin and possession of heroin with intent to distribute. After protracted plea negotiations, defendant accepted a cooperation agreement entailing transfer of his case to the United States District Court for the District of Columbia, where he pled guilty to unlawful distribution, see 21 U.S.C. § 841(a)(1), (b)(1)(C). Defendant’s subsequent attempts at cooperation produced little of use to the government and ultimately ended when he failed a drug test. Defendant’s crime of distribution of less than five grams of heroin set his federal Sentencing Guidelines base offense level at 12. U.S. Sentencing Guidelines Manual § 2Dl.l(c)(14) (2007). Although the district court based the offense level on only the 2.1 grams of heroin involved in the incident for which defendant was arrested, defendant’s criminal history category of VI reflected his long-term involvement with heroin dealing and related crimes. Because defendant’s cooperation efforts were ultimately unfruitful, the government declined to request a downward departure for substantial assistance, id. § 5K1.1, but it did acknowledge that defendant was entitled to credit for acceptance of responsibility, id. § 3E1.1 (providing for two-level acceptance of responsibility credit plus additional one-level decrease in certain circumstances for base offense levels of 16 or higher). Finding the cooperation efforts in good faith, the district court agreed that an acceptance of responsibility credit was warranted. Together defendant’s base offense level, criminal history category, and acceptance of responsibility credit would have yielded a guidelines range of 24 to 30 months. Defendant’s prior felony convictions, however, triggered the sentence enhancement for career offenders, id. § 4B1.1, which automatically increased his guidelines range to 151 to 188 months. Having calculated this advisory guidelines range, the district court weighed several of the sentencing factors listed in 18 U.S.C. § 3553(a). Beginning with the nature of the offense, the district court, though recognizing the seriousness of heroin dealing, acknowledged that the specific transaction for which" }, { "docid": "7937398", "title": "", "text": "‘a prior conviction for distributing drugs, and even the possession of user-quantities of a controlled substance, are relevant under Rule 404(b) to show knowledge and intent to commit a current charge of conspiracy to distribute drugs.’ ” United States v. Robinson, 639 F.3d 489, 494 (8th Cir.2011) (quoting United States v. Frazier, 280 F.3d 835, 847 (8th Cir.2002)). Additionally, evidence of prior possession of drugs is admissible “to show such things as knowledge and intent of a defendant charged with a crime in which intent to distribute drugs is an element.” United States v. Hardy, 224 F.3d 752, 757 (8th Cir.2000) (internal quotation marks omitted); see also United States v. Tyerman, 701 F.3d 552, 562-63 (8th Cir.2012) (“[Rule] 404(b) evidence may establish motive and intent in felon-in-possession cases.”). Next, each of the offenses introduced was similar in kind to Holmes’s current charges and sufficiently close in time to Holmes’s trial, satisfying the second consideration. Holmes’s prior drug and gun convictions are virtually identical in kind to the current charges he faced, and the most remote of Holmes’s prior convictions was eight years old at the time of trial, a length of time we have found sufficiently close on several occasions. See, e.g., United States v. Gaddy, 532 F.3d 783, 789 (8th Cir.2008) (holding that prior convictions of “four, ten and eleven years old” were not so remote to be inadmissible). Finally, with regard to the fourth consideration, the district court’s limiting instruction mitigated any potential prejudicial effect evidence of Holmes’s prior convictions may have had on the jury. See Robinson, 639 F.3d at 494. Accordingly, we conclude that the district court did not abuse its discretion by admitting evidence of Holmes’s former convictions. B. Holmes argues that his sentence should be vacated because the district court erred in sentencing him to mandatory life imprisonment when his PSR failed to provide that the he was facing a mandatory life sentence. Because Holmes admittedly failed to object to this alleged procedural error before the district court, we review for plain error. United States v. Burnette, 518 F.3d 942, 945 (8th Cir.2008) (“Procedural" }, { "docid": "16464941", "title": "", "text": "and (4) he murdered the deputy sheriff after he had already been convicted of a capital felony — the 1983 armed robbery of a Milledgeville convenience store, see id. § 17-10-30(b)(l). In addition to those statutory aggravating circumstances, the jury heard evidence about Holsey’s long history of violence against others. When he was fourteen years old, Holsey brought a butcher knife to school, put it to a schoolmate’s throat, and hit that schoolmate in the face. When he was eighteen years old, Holsey robbed a Milledgeville convenience store by smashing the store clerk’s face with a brick. For that violent behavior, Holsey pleaded guilty to and was convicted of armed robbery with serious bodily injury. Then, when Holsey was twenty-six years old, and while still on parole for his first armed robbery conviction, he stabbed a man four times and tried to shoot another person. For that violent behavior, he pleaded guilty to and was convicted of three more crimes: two counts of aggravated assault and one count of possession of a firearm by a convicted felon. The jury heard about all of those violent crimes during the sentencing phase. And, of course, it heard extensive evidence during the trial about how Holsey, when he was thirty years old, robbed yet another convenience store and, while fleeing, murdered Deputy Will Robinson. Holsey’s extensive, escalating history of violence against others, which began at least as early as age fourteen when he put a knife to a schoolmate’s throat and continued throughout his life, culminating at age thirty in the murder of Deputy Robinson, is a “highly prejudicial aggravating circumstance.” Frazier v. Bouchard, 661 F.3d 519, 533 (11th Cir.2011); cf. Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1368-69 (11th Cir.2009) (holding that “details of [the petitioner’s] three prior violent felony convictions” was “damaging testimony”). In addition to all of the aggravating circumstances evidence that was before the jury, the evidence that came in at the state collateral hearing included more reasons for the jury to give Holsey a death sentence. First, his Department of Corrections records, which Holsey himself" }, { "docid": "16635170", "title": "", "text": "the conspiracy and distribution scheme. Contrary to the unambiguous testimony of Agent Final at Mr. Skinner’s sentencing hearing and the incriminating tape recordings of the drug negotiations, Mr. Skinner maintained that he was only responsible for the twenty pounds of marijuana that defendant Mangels was to buy. In his letter to the sentencing court, Mr. Skinner also minimized his role and claimed that he was merely the victim of a heroin-addicted informant and overzealous government agents. A reduction for acceptance of responsibility does not automatically apply merely because a defendant pleads guilty, United States v. Escobar-Mejia, 915 F.2d 1152, 1153 (7th Cir.1990); Franklin, 902 F.2d at 505-06, and it applies only when the defendant “fesses up to his actual offense.” Escobar-Mejia, 915 F.2d at 1153 (noting that no reduction applied when defendant, who pleaded guilty, claimed he was the pawn of others and denied that he was responsible for distribution of more than five kilograms of cocaine although evidence indicated he had distributed at least seven kilograms). The defendant’s reliance on United States v. Trussel, 961 F.2d 685 (7th Cir. 1992), is misplaced. In Trussel we affirmed the district court’s decision to deny the defendant an acceptance of responsibility reduction because the defendant had attempted to withdraw his guilty plea and did not admit his full role in the conspiracy. Id. at 691. In the present case, the district court correctly found that the defendant refused to accept responsibility for his complete role in his offense. The district court did not clearly err in deciding not to grant the defendant a two-point reduction for acceptance of responsibility. Conclusion The district court did not clearly err in calculating the drug amount under U.S.S.G. § 2D1.4 or in determining that the defendant was not entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The plain language of U.S.S.G. § 3B1.1 and its commentary also supports the district court’s finding that the defendant was an organizer of the offense and therefore should have received a two-level enhancement of his base offense level. The defendant’s sentence is affirmed. Affirmed. ." }, { "docid": "2232268", "title": "", "text": "the firearm was related to the drug crime. We review a district court’s factual determination to enhance a sentence under section 2D1.1(b)(1) for clear error only. United States v. Vargas, 116 F.3d 195, 197 (7th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 584, 139 L.Ed.2d 421 (1997); United States v. Wetwattana, 94 F.3d 280, 283 (7th Cir.1996). The Sentencing Guidelines provide that, for certain offenses involving drugs, the court should increase the base offense level by two levels if a dangerous weapon, including a firearm, was possessed. U.S.S.G. § 2D1.1(b)(1); Wetwattana, 94 F.3d at 283. Application Note 3 to that section explains that the “enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense.” As an example of an occasion when the enhancement would not apply, the Application Notes describe an arrest of a defendant at his residence, where police find an unloaded hunting rifle in the closet. The government must prove that this enhancement is warranted by a preponderance of the evidence. Wetwattana, 94 F.3d at 283. The government is not required to demonstrate that the weapon was connected to the offense, but rather only that the weapon was possessed during the offense of conviction or during relevant conduct as that term is defined in Sentencing Guideline section 1B1.3. Id. The government met this burden easily in the instant case because Cain admitted that the gun in the car was his, and also admitted at his plea hearing that he was using the car that day to drive Holmes to and from various drug deals. The burden then shifted to Cain to show that it was clearly improbable that the gun was connected to the offense. Cain offered his statement that he carried the gun for protection from kidnappers and not to facilitate drug deals. ’ The district court did not clearly err in finding that this explanation was not credible. Cain also faults the district court for declining to" }, { "docid": "22195724", "title": "", "text": ". In Apprendi, the defendant had been convicted in a New Jersey court of possession of a firearm for an unlawful purpose, an offense punishable by imprisonment for between five to ten years. At his sentencing hearing, the district court judge found by a preponderance of the evidence that the defendant had committed the crime with a purpose to intimidate individuals because of their race. Under New Jersey’s hate crime law, this finding increased the defendant's sentence to imprisonment beyond the statutory maximum for the crime for which he was found guilty. The claim in Apprendi was under the Due Process Clause of the Fourteenth Amendment; the analogous Due Process Clause of the Fifth Amendment applies in the instant case. . The maximum penalties under subsections 841(b)(1)(A) and (B) are more severe if certain aggravating factors are present, such as being a prior felony drug offender, or if the use of the controlled substances results in death or serious bodily injury. The fact of a prior conviction was specifically excluded from the scope of the Supreme Court's decision in Apprendi. . In Rebmann, a defendant pleaded guilty to distribution of heroin in violation of 21 U.S.C. § 841. The guilty plea exposed the defendant to a maximum sentence of twenty years; but § 841 requires a factual determination as to whether the offense involved death or serious bodily injury, which would increase the maximum sentence to life imprisonment. 21 U.S.C. § 841(b)(1)(A). The district court determined that these criteria were met and sentenced the defendant to life imprisonment. Because this factual determination increased the defendant's maximum, it was made in violation of Apprendi. . For instance, according to Rossell’s PSIR, co-defendant Lopez Jackson indicated that he had sold Rossell about an ounce of powder cocaine every other week from July 1994 to July 1998. Rossell corroborated these amounts. (J.A. at 1885.) Taped phone conversations revealed that Jackson and Lopez exchanged quantities of more than an ounce of cocaine on two occasions. Additionally, another transaction was for ten ounces. Ros-sell submitted written objections to his PSIR, contesting the transaction involving ten" }, { "docid": "17635724", "title": "", "text": "and cannot fault it for not presenting testimony regarding other explanations for the ounce’s failure to harden. Willis could have pursued this argument at trial or sentencing but did not do so. We therefore conclude that the government’s evidence regarding other sales adequately supports the court’s decision to count this quantity. Next, Willis challenges Box’s testimony as unreliable. Inasmuch as his argument rests on Box’s cooperation agreement, his prior addictions to cocaine and heroin, and his impeachment through prior inconsistent statements, we reject it. In addition to Willis’s convictions, which demonstrate the jury’s belief, at least to some extent, of Box’s testimony, the court found his testimony regarding these amounts specific and credible. We give great deference to such credibility determinations. See, e.g., United States v. Pitz, 2 F.3d 723, 727 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2141, 128 L.Ed.2d 869 (1994). Willis also maintains that the court erred in crediting all three transactions Box testified to taking part in when Box stated on cross-examination that he had only purchased drugs from Willis twice. Our review of the transcript indicates that Box testified he had twice put something in Willis’s hand in exchange for something directly from Willis — the two kilogram and the one-half kilogram purchases. Box recounted that Saulter actually handed him the cocaine during the late June or early July deal. Based on this testimony, the court did not clearly err in finding no inconsistency that prevented it from counting all three quantities. We reach the same conclusion regarding Box’s allegedly inconsistent testimony about who was present during the transactions. Willis asserts that Box stated that he and Willis were alone during all of their transactions. A more plausible reading of Box’s testimony, however, is that only the two men were present during the spring, 1992 transaction. Box thus did not contradict himself when he testified to Saulter’s participation in the final purchase. Finally, Willis contends that the court likely engaged in impermissible double-counting by attributing to him the kilogram Box testified to receiving in late June or early July and the kilogram Fort" }, { "docid": "16464942", "title": "", "text": "convicted felon. The jury heard about all of those violent crimes during the sentencing phase. And, of course, it heard extensive evidence during the trial about how Holsey, when he was thirty years old, robbed yet another convenience store and, while fleeing, murdered Deputy Will Robinson. Holsey’s extensive, escalating history of violence against others, which began at least as early as age fourteen when he put a knife to a schoolmate’s throat and continued throughout his life, culminating at age thirty in the murder of Deputy Robinson, is a “highly prejudicial aggravating circumstance.” Frazier v. Bouchard, 661 F.3d 519, 533 (11th Cir.2011); cf. Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1368-69 (11th Cir.2009) (holding that “details of [the petitioner’s] three prior violent felony convictions” was “damaging testimony”). In addition to all of the aggravating circumstances evidence that was before the jury, the evidence that came in at the state collateral hearing included more reasons for the jury to give Holsey a death sentence. First, his Department of Corrections records, which Holsey himself put into evidence at the evidentiary hearing, establish that he committed at least one violent act while in prison. While incarcerated in 1985, he “jumped on” another inmate, breaking that inmate’s teeth, bloodying his nose, and bruising his head. See Cummings, 588 F.3d at 1368-69 (holding that evidence of the petitioner’s “repeated involvement in violent incidents while in prison” is “damaging”). Second, the State introduced evidence at the hearing showing that Holsey had been arrested in 1982 for battery, in 1983 for theft by shoplifting, and in 1990 for carrying a concealed weapon. Finally, it came out during the evidentiary hearing that Dr. Sachy, the State’s expert witness, and Dr. Shapiro, the psychologist Holsey’s trial lawyers had hired to evaluate him, were of the opinion that Holsey’s history of getting in fights, committing aggravated assaults and armed robberies, skipping school and running away from home, and bringing a knife to school and putting it to another student’s throat evidenced an antisocial personality disorder. Although Holsey was never formally diagnosed as having antisocial personality disorder, the" }, { "docid": "22174296", "title": "", "text": "presented evidence that at least five individuals participated in the conspiracy; at sentencing, the government cited Lopez’s trial testimony that he, Caraballo, Miranda, Martinez, and Ariel attended planning meetings. See United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989) (“The findings of fact of the sentencing court may be based on evidence heard during trial, facts admitted by a defendant’s plea of guilty, undisputed statements in the presentence report, or evidence presented at the sentencing hearing.”). The district court could find on this record that Caraballo was a leader and organizer of this criminal alien smuggling operation and that there were at least five participants involved in the operation. The district court did not clearly err in applying the four-level leadership enhancement. Third, and finally, the district court did not clearly err in declining to apply an acceptance of responsibility reduction to Caraballo’s Sentencing Guidelines calculation. See United States v. Kendrick, 22 F.3d 1066, 1068 (11th Cir. 1994) (“The district court’s determination of whether a defendant is entitled to a reduction for acceptance of responsibility is a finding of fact that is entitled to great deference on appeal and will not be disturbed unless clearly erroneous.”). Under U.S.S.G. § 3El.l(a), a sentencing guidelines calculation reduction of two levels is available if the defendant “clearly demonstrates acceptance of responsibility for his offense.” We have explained that, “[t]he Sentencing Guidelines provide that a defendant who shows remorse or contrition for his crimes is entitled to a reduction of his sentence if the sentencing court finds that he has accepted responsibility for the crime.” United States v. Rodriguez, 959 F.2d 193, 195 (11th Cir.1992). This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right" }, { "docid": "16431870", "title": "", "text": "uncovered-and the government offered at trial-the following evidence: a drug scale, large amounts of money, individualized packages of crack and heroin, drug quantities indicative of distribution, additional packaging material, and a common heroin-cutting agent. Further, although inadmissible for propensity purposes, defendant’s prior drug-sale involvement and convictions were probative of his intent to distribute. See Fed.R.Evid. 404(b). Finally, two pieces of evidence linked Harris to the drugs Paschal held: first, Harris confused the substances on his person with those found on hers; and second, a witness testified about a previous drug sale, in which the witness saw Harris give drugs to Paschal before the witness bought drugs from Paschal. Because of that evidence and Fischer’s testimony, the district court correctly denied the motion for acquittal. For many of the same reasons, and for the additional reasons the district court stated, we also affirm the district court’s denial of defendant’s motion for new trial. See 8th Cir. R. 47B. Harris’s next issue involves the district court’s drug-quantity calculation. Fischer testified that Harris told him that he had made one-hundred trips to Chicago, fifty times buying one-half ounce of crack, and fifty times buying one-half ounce of cocaine. The court multiplied fifty trips times one-half ounce, equaling twenty-five grams of crack and twenty-five grams of cocaine. Harris challenges the calculation in two ways. First, he argues that the district court did not consider the possibility that Fischer’s testimony was incorrect. And second, he argues that the court determined Fischer’s testimony was credible before hearing all of Harris’s sentencing evidence. We reject both arguments. We reject the first argument because credibility issues are virtually unassailable on appeal, United States v. Luna, 265 F.3d 649, 652 (8th Cir.2001), and during the sentencing hearing, the district court expressly found that Fischer accurately recounted Harris’s statement: “The Court does accept the testimony of Detective Mark Fischer ... and finds ... his testimony credible as to what information was related by Deon Harris to him about the frequency and the quantities of drugs brought from Chicago.” Sentencing Transcript at 19-20 (emphasis added). And we reject his second argument" }, { "docid": "22375317", "title": "", "text": "heroin and/or cocaine. Billings testified that $30,000 would buy eight to nine ounces of heroin in New York. According to Billings, Torrence made at least five trips for heroin, each time for eight ounces, for a total of 40 ounces, or one and three tenths kilograms. Billings’ testimony was also consistent with the quantity of drugs found in the car. Billings testified that he and Torrence bought two packages of heroin that day but that he did not know what happened to one of the packages. The fact that one package was seized from the vehicle, weighing almost four ounces, supported Billings’ testimony that they bought eight ounces that day for $30,000. The heart of Torrence’s argument is that the district court erred in relying on Billings’ testimony because of his unreliability. While Billings is a drug addict, his testimony, in contrast to that considered in United States v. Miele, 989 F.2d at 667, was not internally inconsistent and, also in contrast to that in Miele, was corroborated by the testimony of another witness, Darryl Morgan. See id. at 664-65. Billings’ and Morgan’s testimony was subject to vigorous cross-examination and at the sentencing hearing the district court listened to extensive argument on the issue of drug quantity. The court, which observed their demeanor and was in a position to judge their credibility, carefully considered the estimates based on their testimony and concluded that the witnesses were reliable. As we have stated “assessments of credibility by the trial court are entitled to great deference at the appellate level.” United States v. Brothers, 75 F.3d 845, 853 (3d Cir.1996). Because we agree that there was at least a minimal indicia of reliability to support the court’s reliance on Billings’ and Morgan’s testimony relating to drug quantity, we conclude that its drug quantity calculation was not clearly erroneous. Torrence also argues that the district court clearly erred in finding that he possessed a firearm in relation to drug trafficking. The court took Torrence’s possession of a firearm into account in adding two points to his offense level, in accordance with U.S.S.G. § 2Dl.l(b)(l)." }, { "docid": "22832268", "title": "", "text": "by an intervening arrest. This inquiry is preliminary to any consideration of consolidated sentencing, as reflected by use of the word ‘otherwise.’ ” United States v. Hunter, 323 F.3d 1314, 1322-23 (11th Cir.2003). The district court did not clearly err when it counted Wilks’ youthful offender convictions separately in applying the § 4B1.1 career offender enhancement because his prior convictions are unrelated under § 4A1.2. See § U.S.S.G. § 4B1.2(c) (2004) (cross-referencing § 4A1.1 for determining whether felony convictions are counted separately under § 4B1.1). Although consolidated for sentencing on the same day, Wilks’ first conviction was for a charge of aggravated assault on a law enforcement officer stemming from an arrest on July 31, 1996. Wilks’ second conviction stemmed from an arrest on August 15, 1996 for three separate crimes — grand theft, burglary with assault and strongarm robbery. Sixteen days separated the arrests for these two convictions. Because an intervening arrest separated the underlying predicate offenses, the district court did not err in counting them separately and enhancing Wilks’ sentence under § 4B1.1. As for the ACCA enhancement, the language of § 924(e)(1) requires only that the prior felonies or offenses be “committed on occasions different from one another,” not that the convictions be obtained on separate occasions. 18 U.S.C.A. § 924(e)(1); United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir.1995). It does not matter for § 924(e) purposes that the legal consequences of a defendant’s separate criminal acts were imposed upon him on the same day. Id. Nor does it matter that the legal consequences were sentences to be served concurrently instead of consecutively. Id. In Jackson, we held that a defendant was an armed career criminal where he pleaded guilty to five counts of robbery on one day and was given concurrent sentences, because the five counts were based on five separate robberies occurring over a two-month period. Id. at 1017-18. The district court did not err in counting Wilks’ youthful offender convictions separately and applying the armed career criminal enhancement under § 924(e) to his sentence. Because the offenses were committed on different occasions," }, { "docid": "7302170", "title": "", "text": "again about a week later, but this time Holmes saw Vinnie measure out fifteen to eighteen ounces of crack before disappearing into a bedroom with Coffey and the drugs. A few days following this encounter, Holmes was present at the apartment when Coffey arrived and gave Vinnie several thousand dollars in cash. Holmes opined that the money was payment for fifteen to eighteen ounces of crack Coffey had gotten from Vinnie a couple of days earlier. Danae Scott was associated with Curtis Holmes, and was acquainted with Vinnie because he dated Scott’s friend. Scott testified that she traveled with Vinnie to Omaha twice. Both times Vinnie met with Coffey. She corroborated Holmes’s account of the transactions he saw: Coffey would arrive at Vinnie’s apartment, Coffey and Vinnie would retreat to a bedroom, and then Coffey would leave shortly thereafter. Coffey had three witnesses testify on his behalf. Greg Lloyd testified that Coffey was employed during the time he was alleged to be dealing drugs. He said that Coffey lived modestly and did not have extravagant clothes or cars, oj- lots of cash on hand. Glyniss Thompson testified that Coffey lived with her during the period of the indictment, worked, and did not drive a fancy car or wear fancy clothes. In fact, she said that Coffey had cars repossessed during their relationship because he could not pay for them. Lastly, Coffey’s mother, Diane Coffey, testified on his behalf. She said Coffey had a job and had trouble paying his bills. She also testified that she never saw Coffey in possession of drugs. The jury convicted Coffey of conspiracy to distribute or possession with intent to distribute crack. The verdict form asked the jury to indicate what amount of crack was attributable to Coffey: less than five grams, between five and fifty grams, or fifty-plus grams. The jury checked the box for fifty or more grams. Although an offense like Coffey’s involving fifty grams of crack would result in an offense level of 32, the presentence report suggested holding Coffey responsible for approximately 2.7 kilograms of crack, with a resultant offense" }, { "docid": "7302169", "title": "", "text": "of crack dur ing this encounter. Altogether, Swain estimated that he purchased as much as nine ounces of crack from Coffey. Swain advised the jury that he had pled guilty to conspiracy to distribute crack and had a cooperation agreement that could enable him to receive a sentence reduction if he testified truthfully. Like Swain, Curtis Holmes pled guilty to conspiracy to distribute crack. Holmes received a 292-month sentence, but told the jury that he hoped that he would get a sentence reduction in exchange for the information he was providing to the government. Holmes met Coffey around June of 2001. They met one another'through another crack dealer, who Holmes knew only as “E.” Holmes recalled being present at an apartment with Coffey and another of their mutual suppliers, “Vinnie,” in October of 2001. Holmes saw Vinnie measure out nine ounces of crack, wrapped as individual ounces. When Coffey arrived, Vin-nie took Coffey into a bedroom, carrying the nine ounces of crack. When they emerged, Vinnie no longer had the drugs. Holmes witnessed this happen again about a week later, but this time Holmes saw Vinnie measure out fifteen to eighteen ounces of crack before disappearing into a bedroom with Coffey and the drugs. A few days following this encounter, Holmes was present at the apartment when Coffey arrived and gave Vinnie several thousand dollars in cash. Holmes opined that the money was payment for fifteen to eighteen ounces of crack Coffey had gotten from Vinnie a couple of days earlier. Danae Scott was associated with Curtis Holmes, and was acquainted with Vinnie because he dated Scott’s friend. Scott testified that she traveled with Vinnie to Omaha twice. Both times Vinnie met with Coffey. She corroborated Holmes’s account of the transactions he saw: Coffey would arrive at Vinnie’s apartment, Coffey and Vinnie would retreat to a bedroom, and then Coffey would leave shortly thereafter. Coffey had three witnesses testify on his behalf. Greg Lloyd testified that Coffey was employed during the time he was alleged to be dealing drugs. He said that Coffey lived modestly and did not have extravagant" }, { "docid": "12426001", "title": "", "text": "offender. He also contends that the court abused its discretion in considering the hearsay evidence from Smoker in assessing Woods’ history and characteristics and that his background and his role in the offense did not justify his sentence. 1. Acceptance of Responsibility Despite proceeding to trial, Woods argues that he is entitled to sentencing credit for acceptance of responsibility because he cooperated with law enforcement after his arrest. An acceptance of responsibility determination is a factual finding that we review for clear error. United States v. Leahy, 464 F.3d 773, 790 (7th Cir.2006) (citations omitted). United States Sentencing Guideline (“U.S.S.G.”) § 3E1.1(a) provides that a court is to give a two-point reduction if the defendant “clearly demonstrates acceptance of responsibility for his offense.” Woods’ actions clearly demonstrate that he did not accept responsibility for his offense. Although Woods cooperated with authorities immediately after his arrest, the government later discovered that Woods had lied to them about the source of the drugs. Additionally, Woods refused to cooperate with prosecutors during Otero’s trial, declined to accept responsibility during the preparation of his pre-sentence report, and ultimately, he proceeded to trial and contested his guilt. Because Woods failed to accept responsibility for his offense, the district court did not err in denying Woods a sentencing reduction pursuant to U.S.S.G. § 3E1.1. 2. Career Offender Woods next argues that the district court erred in determining that he qualified as a career offender under U.S.S.G. § 4B1.1. Whether the district court erred in sentencing Woods as a career offender is a question of law that this court reviews de novo. United States v. Kindle, 453 F.3d 438, 440 (7th Cir.2006). Under the Guidelines, a defendant qualifies as a career offender if three criteria are met: (1) the defendant is over 18 at the time he committed the instant offense; (2) the instant offense is a felony that constitutes either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions for either crimes of violence or controlled substance offenses. See U.S.S.G. § 4B1.1. Here, the first" }, { "docid": "17323642", "title": "", "text": "his arrest, he had Keeper’s phone number in his wallet. F. Sentencing Issues 1. Keeper Keeper argues that the district court erred in assessing a base offense level (BOL) of 32 under the Sentencing Guidelines because the court did not make any findings that the drug quantities attributed to him were foreseeable. The Presentence Investigation Report (PSR) attributed 1064 grams of heroin to Keeper, which results in a base level offense of 32 under U.S.S.G. § 2D1.1(c)(4). The district court adopted the findings of the PSR, overruling Keeper’s objections that only the quantities he possessed should be attributable to him, and assessed an initial BOL of 32. The district court’s determination of heroin quantities for sentencing purposes is a factual determination reviewable under the clearly erroneous standard. United States v. Olderbak, 961 F.2d 756, 763 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 422, 121 L.Ed.2d 344 (1992). We will reverse the district court only if “we are left with a firm and definite conviction that a mistake has been made.” United States v. McMurray, 34 F.3d 1405, 1415 (8th Cir.1994). In determining Keeper’s BOL, he is “accountable for drug quantities implicated in the conspiracy that are reasonably foreseeable to [him].” United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (citing U.S.S.G. § 1B1.3(a)(1)(B)). Because Keeper objected to the quantity of drugs attributed to him in the PSR, the district court was required to make a foreseeability finding about the amount of drugs attributable to Keeper. Id. Based upon our review of the sentencing transcript, we agree with the district court that the entire 1064 grams of heroin were foreseeable to Keeper. The amount of 1064 grams of heroin was based on the testimony of Vizcarra that he and Escobar transported heroin to St. Louis on two occasions. On the first trip, they transported eight ounces (224 grams), and on the second trip, they transported 30 ounces (840 grams) of heroin. Accordingly, the total amount of heroin involved in this conspiracy was 1064 grams of heroin. We will briefly summarize the evidence the district court relied upon at" }, { "docid": "23614826", "title": "", "text": "believed was the smallest amount of cocaine Johnson had obtained in a single purchase. (Sentencing Tr. at 19-20.) The judge’s general approach in arriving at this conservative estimate of the total amount of cocaine attributable to Acosta is one that courts have considered acceptable. See United States v. Henderson, 58 F.3d 1145, 1151 (7th Cir.1995); United States v. Clay, 37 F.3d 338, 344 (7th Cir.1994); Beler, 20 F.3d at 1434; see also United States v. Hill, 79 F.3d 1477, 1488 (6th Cir.1996) (when choosing between plausible estimates of drug amount, court should “err on the side of caution”); Sepulveda, 15 F.3d at 1198 (same). As Acosta points out, however, Johnson offered plainly inconsistent estimates concerning the size of his smallest purchase of. cocaine. On direct examination, Johnson first testified that the smallest amount of cocaine he obtained from Acosta in a single purchase ranged from one-half ounce to a kilogram. Immediately thereafter, in response to the same question posed in a slightly different manner, Johnson reconsidered his estimate and stated that the smallest amount was nine ounces. (Sentencing Tr. at 16.) The judge then used the nine ounce figure as the minimum quantity of cocaine and multiplied it by thirty, that being the minimum number of purchases Johnson made from Acosta between the early summer and late fall of 1994. On the basis of this calculation, to which the court added the 31.826 grams of heroin that Acosta was convicted of possessing, the judge set Acosta’s base offense level at 32. (Sentencing Tr. at 20.) There was, however, no explanation of why the judge rejected the one-half ounce figure as the smallest amount purchased, a quantity that would have resulted in a significantly lower base offense level of 26, prior to adjustment for obstruction of justice. See U.S.S.G. § 2Dl.l(c) & comment, (n. 10). Yet as we observed in Duarte, “when the court clearly relies upon one of two contradictory statements offered by a single witness, it should directly address the contradiction and explain why it credits one statement rather than the other.” 950 F.2d at 1266. Nor does the" }, { "docid": "14352405", "title": "", "text": "level by three. We must also affirm the district court’s three-level increase pursuant to § 3Bl.l(b) because the criminal activity was extensive. Section 3Bl.l(b) applies if the criminal activity involved five or more participants or “was otherwise extensive.” The district court found that the criminal activity was extensive, and McGuire does not challenge this finding. This is an independent basis for the § 3Bl.l(b) three-level increase. See United States v. Reid, 911 F.2d 1456, 1465-66 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). B. Acceptance of Responsibility Section 3El.l(a) of the Sentencing Guidelines provides for a two-level reduction in offense level “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” “The question of whether a defendant has accepted responsibility for his crimes is a factual one, depending largely on credibility assessments of the sentencing judge.” United States v. McKenzie, 922 F.2d 1323, 1329 (7th Cir.), cert. denied, — U.S.-, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991). Thus, the district court’s decision on this point is entitled to great deference and will not be disturbed unless it is without foundation. Id.; U.S.S.G. § 3E1.1, Application Note 5. Although McGuire did cooperate with the Illinois State Police to some extent, the district court refused to reduce McGuire’s offense level for acceptance of responsibility because the defendant “waffled” in his dealings with the police. The district court found that McGuire would cooperate and then dissemble; he made statements about his drug activities and then he recanted those statements. Thus, the district court concluded that McGuire did not “clearly demonstrate[ ] a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” We cannot say that the district court’s decision was clearly erroneous. V. Conclusion For the foregoing reasons, McGuire’s conviction and sentence are Affirmed. . On one occasion, Ty Welsch was purchasing four ounces of cocaine from McGuire on behalf of his friend, \"Mike.” McGuire told Welsch that he had gotten a \"really good price” on a large quantity of cocaine because he had driven to Chicago himself. McGuire" }, { "docid": "22832267", "title": "", "text": "United States v. Mullens, 65 F.3d 1560, 1565 (11th Cir.1995), but we review de novo a district court’s determination of whether two crimes constitute two separate felonies for purposes of 18 U.S.C. § 924(e). Spears, 443 F.3d at 1360. In calculating a criminal history score under § 4A1.2(a)(2), prior sentences imposed for related convictions should be counted as one sentence, but unrelated cases are counted separately. The commentary to that guidelines provision provides: “Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (ie., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” § 4A1.2 cmt. n. 3 (2004). We have explained: “The language, of Note 3 is clear. In determining whether cases are related, the first question is always whether the underlying offenses are separated by an intervening arrest. This inquiry is preliminary to any consideration of consolidated sentencing, as reflected by use of the word ‘otherwise.’ ” United States v. Hunter, 323 F.3d 1314, 1322-23 (11th Cir.2003). The district court did not clearly err when it counted Wilks’ youthful offender convictions separately in applying the § 4B1.1 career offender enhancement because his prior convictions are unrelated under § 4A1.2. See § U.S.S.G. § 4B1.2(c) (2004) (cross-referencing § 4A1.1 for determining whether felony convictions are counted separately under § 4B1.1). Although consolidated for sentencing on the same day, Wilks’ first conviction was for a charge of aggravated assault on a law enforcement officer stemming from an arrest on July 31, 1996. Wilks’ second conviction stemmed from an arrest on August 15, 1996 for three separate crimes — grand theft, burglary with assault and strongarm robbery. Sixteen days separated the arrests for these two convictions. Because an intervening arrest separated the underlying predicate offenses, the district court did not err in counting them separately and enhancing Wilks’ sentence under § 4B1.1." }, { "docid": "17635723", "title": "", "text": "evidenced by a June 9,1993, recorded conversation. Willis challenges these figures on several grounds. Willis asserts that the court erred in attributing the two kilograms Box purchased from him in the spring of 1992, because the government failed to prove that the substance was a mixture containing cocaine. Box testified that after receiving the substance he attempted to “cook” one ounce, which would not harden as it cooled. When he told Willis about the problem, Willis told Box to return it for a refund, which Box did. Willis argues that because the government presented evidence demonstrating how cocaine cooks and then hardens and because the government’s own witness stated that this substance would not do so, the United States did not meet its burden. We disagree. The government presented ample evidence that Willis sold cocaine, thus leading to the reasonable inference that this substance also contained cocaine. Box never testified that he believed the mixture contained no drugs but was only a look-alike substance. We cannot expect the govern ment to anticipate all possible arguments and cannot fault it for not presenting testimony regarding other explanations for the ounce’s failure to harden. Willis could have pursued this argument at trial or sentencing but did not do so. We therefore conclude that the government’s evidence regarding other sales adequately supports the court’s decision to count this quantity. Next, Willis challenges Box’s testimony as unreliable. Inasmuch as his argument rests on Box’s cooperation agreement, his prior addictions to cocaine and heroin, and his impeachment through prior inconsistent statements, we reject it. In addition to Willis’s convictions, which demonstrate the jury’s belief, at least to some extent, of Box’s testimony, the court found his testimony regarding these amounts specific and credible. We give great deference to such credibility determinations. See, e.g., United States v. Pitz, 2 F.3d 723, 727 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2141, 128 L.Ed.2d 869 (1994). Willis also maintains that the court erred in crediting all three transactions Box testified to taking part in when Box stated on cross-examination that he had only purchased drugs from" } ]

[ { "docid": "18170507", "title": "", "text": "the referee in bankruptcy who administered the oath had the authority to administer the oath. (3) Motion for a new trial based on newly discovered evidence which they alleged would have sustained the contentions of the defendants throughout the trial. Attached to this motion were the affidavits of the three persons who would, if permitted, give the allegedly newly discovered evidence. On June 19, 1953, the day fixed by the defendants’ attorney, a hearing on these motions was held at Madison, Wisconsin, with Judge Tehan presiding. The entry on the hearing recites that court convened at 3:10 P. M. and adjourned at 5:00 P. M., and that, “The Court having heard the arguments of counsel and being advised in the premises,” denied the motion for a new trial and the motion in arrest of judgment, and deferred consideration on the motion to reconsider a former order of the court denying probation to the defendants. The defendants thereupon brought this appeal from the order of the court denying the motion for a new trial and the motion in arrest of judgment. In Larrison v. United States, 7 Cir., 24 F.2d 82, this court announced a proper guide for courts considering motions for a new trial on the ground of newly discovered evidence where witnesses who had testified against the defendant at the trial had recanted, or where the court was reasonably satisfied that their testimony was false. This court said, 24 F.2d at page 88, that if, in such a case, the defendant “was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial,” and that without the false testimony the jury might have reached a different verdict, the motion for a new trial should be granted. But, in United States v. Johnson, 7 Cir., 142 F.2d 588, 592, where, as here, there had been no recantation or false swearing shown, this court followed the generally accepted rules for testing the sufficiency of motions for a new trial in criminal cases on the ground of" } ]

[ { "docid": "23465254", "title": "", "text": "discovered before trial with due diligence — are mutually exclusive. Attempts have been made to assert ineffective assistance claims.in newly discovered evidence motions, on the theory that evidence of counsel’s ineffective performance at trial was newly discovered. See, e.g., United States v. Ugalde, 861 F.2d 802 (5th Cir.1988), cert. denied, 490 U.S. 1097, 109 S.Ct. 2447, 104 L.Ed.2d 1002 (1989). This theory, however, must confront the fact that our test for newly discovered evidence requires that the evidence “must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.” Iannelli, 528 F.2d at 1292 (emphasis added) (quoting United States v. Howell, 240 F.2d 149, 159 (3d Cir.1956)). This language certainly suggests that newly discovered evidence must generally, if not always, be evidence related to the issues at trial, not evidence concerning separate legal claims such as ineffective assistance of counsel. In any event, assuming for the sake of argument that there are some circumstances in which evidence of trial counsel’s deficient performance can qualify as newly discovered evidence, we still think that a newly discovered evidence motion is not the preferred vehicle for asserting such claims. As the Fifth Circuit aptly stated in Ugalde: [Defendants prejudiced by ineffective assistance of counsel have a ready remedy. They may mount a collateral challenge by a federal habeas petition as allowed by 28 U.S.C. § 2255. That mechanism, rather than a new trial, seems best to accommodate the interests in finality and fairness with respect to ineffective assistance of counsel claims. 861 F.2d at 809. We therefore hold that DeRewal was not required to show “cause and prejudice” in relation to his failure to raise his ineffective assistance of counsel claims in his newly discovered evidence motion. Accordingly, we reverse the order of the district court insofar as these claims are concerned. III. DeRewal also argues that the district court erred in denying his claim that the government engaged in outrageous conduct that violated due process. We reject this argument. DeRewal cites only one case involving the dismissal of an indictment based" }, { "docid": "7796871", "title": "", "text": "new trial, however, he did rule that “the suggested new evidence is at best cumulative and would not be of sufficient import to alter the jury’s determination in this matter in terms of guilt or innocence.” II Krasny’s challenge to the judge’s ruling on his motion raises a question of apparent first impression in this circuit. We must decide the correct standard for granting a new trial when newly discovered evidence reveals that a government witness may have committed perjury during the trial. In general, a defendant seeking a new trial on the basis of newly discovered evidence must meet the following requirements: “(1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i. e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.” United States v. Cervantes, 542 F.2d 773, 779 (9th Cir. 1976) (emphasis supplied) (quoting Pitts v. United States, 263 F.2d 808, 810 (9th Cir.), cert. denied, 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535 (1959)); accord, e. g., United States v. Brashier, 548 F.2d 1315, 1327 (9th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977); United States v. Craft, 421 F.2d 693, 695 (9th Cir. 1970). A majority of circuits that have considered the question, however, have applied, or implied that they would apply, a modified standard when the newly discovered evidence indicates that a government witness committed perjury at trial. Rather than requiring a defendant to. show that an acquittal probably would result, these courts require only that the defendant demonstrate that an acquittal might or possibly would result upon a new trial. See, e. g., United States v. Wallace, 528 F.2d 863, 866 (4th Cir. 1976) (witness recantation); United States v. Anderson, 165 U.S.App.D.C. 390, 405, 509 F.2d 312, 327 n.105" }, { "docid": "13389819", "title": "", "text": "of Title , . 28, and since the motion was filed long after the five day period permitted by Rule 33> F.R.Crim.Proc. in other cases, jf r had any standing at all it must be ag a motion for new trial on the ground 0f newiy discovered evidence. Rubenstein v. United States, 10 Cir., 227 F.2d 688. It is plain that appellants must have treated it as such for they filed a separate notice of appeal from the order denying their motion. Such an order is appealable. Balestreri v. United States, 9 Cir., 224 F.2d 915, 917. But as the case just cited said with respect to such a motion, quoting from the Eighth Circuit [Johnson v. U. S., 32 F.2d 127], “The evidence must be in fact newly discovered, i. e. discovered since the trial.” See in acCord, Pitts v. United States, 9 Cir., 263 F.2d 808, 810; United States v. Costello, 2 Cir., 255 F.2d 876, 879; United States v. Howell, 3 Cir., 240 F.2d 149, 159; United States v. Marachowsky, 7 Cir., 213 F.2d 235, 238. The motion here showed on its ^ace ^ac^g on which it was based came t0 the attention of the defendants an(j their counsel before the verdict of jury was returned; it is plain there-£ore -y^at the motion cannot qualify as one £or a new trial based on newly discovere(j evidence. The proper time to have presented these matters to the court wag the first motion for a new trial wag made on November 5> i958. Appenants simply failed to utilize the one ayailabIe remedy they had. When the trial court considered this motion to vacate the sentence, it had nothing before it upon which it was authorized to act; also when the court did undertake, notwithstanding this in firmity in the motion, to pass upon its merits, it found as a fact that the communication from the bailiff to the juror was not prejudicial. There was no controversy as to the fact of that communication, but the inference which the court drew that the communication as made was not prejudicial was" }, { "docid": "23465253", "title": "", "text": "conduct an adequate pretrial investigation, the defendant generally argues that a reasonably competent attorney would have discovered some specific piece or body of evidence that would have altered the outcome of the trial. See, e.g., Lewis v. Mazurkiewicz, 915 F.2d 106, 111 (3d Cir.1990); United States v. Gray, 878 F.2d 702, 709-10 (3d Cir.1989). Attempting to shoehorn such a claim into a Rule 33 newly discovered evidence motion is not an easy task. For one thing, it seems clear that the type of evidence mentioned above (i.e., evidence that a reasonably competent attorney allegedly would have discovered by means of pretrial investigation) cannot constitute the newly discovered evidence on which a Rule 33 motion may be based. This is so because newly discovered evidence must be evidence that trial counsel could not have discovered with due diligence before trial. See United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir.1976). Thus, these two categories of evidence — evidence that a reasonably competent attorney would have discovered before trial and evidence that counsel could not have discovered before trial with due diligence — are mutually exclusive. Attempts have been made to assert ineffective assistance claims.in newly discovered evidence motions, on the theory that evidence of counsel’s ineffective performance at trial was newly discovered. See, e.g., United States v. Ugalde, 861 F.2d 802 (5th Cir.1988), cert. denied, 490 U.S. 1097, 109 S.Ct. 2447, 104 L.Ed.2d 1002 (1989). This theory, however, must confront the fact that our test for newly discovered evidence requires that the evidence “must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.” Iannelli, 528 F.2d at 1292 (emphasis added) (quoting United States v. Howell, 240 F.2d 149, 159 (3d Cir.1956)). This language certainly suggests that newly discovered evidence must generally, if not always, be evidence related to the issues at trial, not evidence concerning separate legal claims such as ineffective assistance of counsel. In any event, assuming for the sake of argument that there are some circumstances in which evidence of trial counsel’s deficient performance can qualify" }, { "docid": "13389818", "title": "", "text": "verdict on the first 70 counts; that the bailiff said in a louder voice: Oh no, go back and bring in a verdict on all counts, you are not finished yet. Oh no, go on in back, you have to bring a verdict on all counts.” That thereafter affiant had asked the bailiff what happened and the bailiff recounted what he had said to the juror. The affidavit states that thereupon Zachary told his brother what had happened. The affidavit also states that he told his attorney what had happened. The affidavit of Edward Zacharski is to the. same effect; that both he and his brother and their attorney learned of this incident at the time it happened or shortly thereafter. Since the matters set out m , , , , ., ,, this motion to vacate and set aside the , .. , ,., , , . verdict would not constitute any basis „ ., , , ,, . ,. ... for a collateral attack upon the verdict or the judgment under Sec. 2255 of Title , . 28, and since the motion was filed long after the five day period permitted by Rule 33> F.R.Crim.Proc. in other cases, jf r had any standing at all it must be ag a motion for new trial on the ground 0f newiy discovered evidence. Rubenstein v. United States, 10 Cir., 227 F.2d 688. It is plain that appellants must have treated it as such for they filed a separate notice of appeal from the order denying their motion. Such an order is appealable. Balestreri v. United States, 9 Cir., 224 F.2d 915, 917. But as the case just cited said with respect to such a motion, quoting from the Eighth Circuit [Johnson v. U. S., 32 F.2d 127], “The evidence must be in fact newly discovered, i. e. discovered since the trial.” See in acCord, Pitts v. United States, 9 Cir., 263 F.2d 808, 810; United States v. Costello, 2 Cir., 255 F.2d 876, 879; United States v. Howell, 3 Cir., 240 F.2d 149, 159; United States v. Marachowsky, 7 Cir.," }, { "docid": "23487252", "title": "", "text": "been settled that ordinarily the denial of a motion for a new trial is not appealable since it does not involve appealable subject matter which is independent of and reviewable separately from the judgment with respect to which the new trial is sought. Clune v. United States, 1895, 159 U.S. 590, 591, 16 S.Ct. 125, 40 L.Ed. 269; Lefco v. United States, 3 Cir., 1934, 74 F.2d 66, 69; McElheny v. United States, 9 Cir., 1944, 146 F.2d 932, 933; Greenwood v. Greenwood, 3 Cir., 1955, 224 F.2d 318, 319. There is an exception to this rule, however, in the case of a motion for a new trial which is based upon grounds arising subsequent to the antecedent judgment and which accordingly could not have been considered upon an appeal from that judgment. John E. Smith’s Sons Co. v. Lattimer Foundry & Mach. Co., 3 Cir., 1956, 239 F.2d 815, 816. Newly discovered evidence asserted as a ground for a new trial comes within this category and the denial of a motion based upon that ground may amount to an independently reviewable abuse of discretion by the district court. Hamilton v. United States, D.C.Cir.1944, 78 U.S.App.D.C. 316, 140 F.2d 679, 682; United States v. Rutkin, 3 Cir., 1953, 208 F.2d 647; Balestreri v. United States, 9 Cir., 1955, 224 F.2d 915, 916. Accordingly if the defendant’s motion for a new trial actually had been based upon newly discovered evidence the denial of the motion would have been reviewable upon the present appeal. But, as we have seen, the defendant does not in fact assert newly discovered evidence but relies wholly upon matters occurring at the trial or which were known to him at the time of the trial. Since these matters could have been raised upon appeal from the judgment they do not constitute appealable subject matter which is open for consideration upon an independent review of the order denying defendant’s motion for a new trial. It follows that the order is not appealable. Accordingly, the appeal will be dismissed. . It appears that at the time of trial and" }, { "docid": "13576899", "title": "", "text": "STEPPIENS, Circuit Judge. Appeal by defendant after conviction by the Court sitting under stipulation without a jury, of attempting to evade payment of income taxes for 1934. A “Motion for New Trial or to Remand” on the ground of newly discovered evidence was submitted to this Court coincident with the submission of the appeal. Affidavits in support of the motion are before us. Rule 2(3), Criminal Practice and Procedure 18 U.S.GA. following section 688, provides for remanding to the trial court for its consideration of a motion for new trial in certain circumstances. We have no power to entertain a motion for a new trial, hence we consider only whether, in the exercise of our discretion, we should remand the case. We have carefully reviewed all of the affidavits and find them to consist largely of hearsay statements and of impeachment of testimony received in the trial. We do not regard them as meeting the requirements, and particularly requirement (e) of Johnson v. United States, 8 Cir., 32 F.2d 127, 130. We quote from the opinion: “There must ordinarily be present and concur five verities, to wit: (a) The evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.” See also Isgrig v. United States, 4 Cir., 109 F.2d 131, 194. The motion is denied. But one point of error is urged in the opening brief, “that the Court in arriving at its verdict or judgment considered, a document which was not in evidence”. Appellant quotes in his brief the following which he and the Government agree was a part of the Court’s remarks in summing up the case: “I believe there are other palpably false representations. We have had the history of" }, { "docid": "23588836", "title": "", "text": "dispute concerning “whether the record truly discloses what occurred in the district court,” Fed.R. App.P. 10(e), has been submitted to the district court, the court’s determination is conclusive “absent a showing of intentional falsification or plain unreasonableness.” United States v. Mori, 444 F.2d 240, 246 (5th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 238, 30 L.Ed.2d 187 (1971). See J. Moore & B. Ward, 9 Moore’s Federal Practice ¶ 210.08[1], at 10-48 (1988). There has been no such showing here. Thus, we affirm the district court’s denial of Boscio’s motion to correct the record. We, therefore, lack jurisdiction over Boscio’s appeal from the denial of his post-conviction motions, as the record indicates that Boscio’s notice of appeal was untimely. Even, however, if we had jurisdiction over this appeal, we would not upset the denial of Boscio’s post-conviction motions. The district court acted within its discretion in denying Boscio’s motion for a new trial based on newly discovered evidence. See United States v. Angiulo, 847 F.2d 956, 983-84 (1st Cir.) (applying abuse of discretion standard), cert. denied, - U.S. -, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988). There was simply nothing new about the “newly discovered” evidence-r-that the Bank never endorsed the mortgage notes used as collateral in the REPOs and thus, according to Boscio, the Bank could not have been defrauded of the notes. This matter was raised at trial when the Bank’s president testified that the notes were not endorsed by the Bank when they were transferred during the REPOs “because the Bank had to keep ... title to the notes.” Boscio’s attorney chose not to cross-examine this witness. It also appears that Boscio was provided copies of the notes before trial. Because the evidence was not “in fact newly discovered,” Boscio was not entitled to a new trial. United States v. Rodriguez, 738 F.2d 13, 17 (1st Cir.1984). There is also no merit to Boscio’s claim that the district court erred in denying his motion to dismiss the indictment because of alleged “irregularities which occurred during the presentation of this case to the grand jury.” One such" }, { "docid": "15706405", "title": "", "text": "PER CURIAM. Here involved are three appellants, each heretofore convicted of knowingly failing and neglecting to perform a duty severally required of him under the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 462, to-wit: Johnson refused to obey an order to report to the local board office, and Gallegos and Taylor failed to report for work, after reporting to the local board office. Each conviction was heretofore affirmed by this court, sitting en banc. Johnson v. United States, 9 Cir. 1960, 285 F.2d 700. We held that the requirement that a physical examination be given to every registrant within one hundred and twenty days prior to the time he reported for induction into the armed .services does not apply to persons ordered to report for civilian work in lieu of military service. We relied, in part, on United States v. Manns, 7 Cir. 1956, 232 F.2d 709 at 712, and Miller v. United States, 6 Cir. 1948, 169 F.2d 865, which pointed out the different rule when a registrant is required to report for induction into the armed services, from that when the registrant reports for the non-combatant work of his choice. We rejected appellants’ argument, believing the “different stresses” rationale sound. The regulations require only that a physical examination be given to anyone within one hundred and twenty days prior to “induction.” This court, en banc, thereafter denied petitions for rehearings in all three cases. Thereafter each appellant filed in the court below a motion for new trial based solely upon the ground of “newly discovered evidence.” (Fed.R.Crim.P. 33, 18 U.S.C.A.) A motion for a new trial based upon the ground of newly discovered evidence must meet the following five requirements (Pitts v. United States, 9 Cir. 1959, 263 F.2d 808, 810): 1. Evidence must be newly discovered after the trial. 2. There must be diligence on part of movant. 3. The evidence must be more than merely cumulative or impeaching. 4. The evidence must be material to the issues involved.' 5. The evidence must be such as would probably produce an acquittal. Appellants rely, as evidence," }, { "docid": "18913258", "title": "", "text": "and moved to dismiss Count Two (the Continuing Criminal Enterprise count), or in the alternative for a new trial and for some form of discovery of Mojica’s statements. The Court directed counsel to file such motions formally, which was done, and sentenced Cruz on the charges against him. That motion is now before the Court. -DISCUSSION- Defendant’s motion, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, for a new trial is based on the grounds of newly discovered evidence. The alleged newly discovered evidence, presumably, is Mojica’s potential testimony on Cruz’s behalf, and, derivatively, its weight in demonstrating the perjurious nature of Tuli’s testimony. It has long been the law in this Circuit that “motions for new trials are not favored and should be granted only with great caution.” United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958). The long-standing test applied to such motions based on newly discovered evidence is clear. . A new trial based on newly discovered evidence will be granted only if the following criteria are met: (1) the evidence must, indeed, be newly discovered, i.e., discovered after trial; (2) the evidence must be such that it could not, with due diligence, have been discovered prior to or during trial; (3) the evidence must be material to the issue of guilt, and not merely for the purpose of impeaching other testimony; (4) the evidence must not be cumulative; and (5) the evidence must be such that it would probably lead to acquittal. See, e.g., United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980); United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976); United States v. Slutsky, 514 F.2d 1222, 1225 (2d Cir.1975); Costello, 255 F.2d, at 879; see also, Berry v. State, 10 Ga. 511, 527 (1851). That test is applicable unless the failure of the defendant to discover the evidence sooner was due in some part to prosecutorial misconduct. See United States v. Agurs, 427" }, { "docid": "626604", "title": "", "text": "Joann Bar-one made a statement of recantation to Attorney Schiano. On April 23, 1987, the district court issued a memorandum decision and order denying the motions. This appeal ensued. II. DISCUSSION Motions for a new trial based upon newly discovered evidence are “ ‘granted only with great caution,’ ” United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975) (quoting United States v, Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958)), cert. denied, 429 U.S. 819, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976), in “ ‘the most extraordinary circumstances.’ ” United States v. Ochs, 548 F.Supp. 502, 512 (S.D.N.Y.1982) (quoting United States v. Fassoulis, 203 F.Supp. 114, 117 (S.D.N.Y.1962) (Weinfeld, J.)), aff'd, 742 F.2d 1444 (2d Cir.1983). Courts are particularly reluctant to grant such motions where the newly discovered evidence consists of a witness recantation as such recantations are “looked upon with the utmost suspicion.” United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1318 (2d Cir.) (quoting United States v. Troche, 213 F.2d 401, 403 (2d Cir.1954) (quoting Harrison v. United States, 7 F.2d 259, 262 (2d Cir.1925))), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). Accordingly, before granting a motion for a new trial on the ground that a witness recanted her trial testimony, a trial court must be satisfied (1) that the testimony recanted was false and material, Sostre, 513 F.2d at 1317; United States ex rel. Rice v. Vincent, 491 F.2d 1326, 1331 (2d Cir.), cert. denied, 419 U.S. 880, 95 S.Ct. 144, 42 L.Ed.2d 120 (1974); (2) that without the original testimony the jury probably would have acquitted the defendant, United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980); Stofsky, 527 F.2d at 246; and (3) that the party seeking the new trial was surprised when the false testimony was given or did not know of its falsity until after the trial, Sostre, 513 F.2d at 1317; Rice, 491 F.2d at 1332; and could not with due diligence have discovered it earlier. Alessi, 638 F.2d at 479; Ochs," }, { "docid": "23487253", "title": "", "text": "ground may amount to an independently reviewable abuse of discretion by the district court. Hamilton v. United States, D.C.Cir.1944, 78 U.S.App.D.C. 316, 140 F.2d 679, 682; United States v. Rutkin, 3 Cir., 1953, 208 F.2d 647; Balestreri v. United States, 9 Cir., 1955, 224 F.2d 915, 916. Accordingly if the defendant’s motion for a new trial actually had been based upon newly discovered evidence the denial of the motion would have been reviewable upon the present appeal. But, as we have seen, the defendant does not in fact assert newly discovered evidence but relies wholly upon matters occurring at the trial or which were known to him at the time of the trial. Since these matters could have been raised upon appeal from the judgment they do not constitute appealable subject matter which is open for consideration upon an independent review of the order denying defendant’s motion for a new trial. It follows that the order is not appealable. Accordingly, the appeal will be dismissed. . It appears that at the time of trial and at the time of pronouncement of sentence the defendant was represented by counsel of his own choice and on April 22, 1957 the defendant moved and was granted leave to substitute another attorney of his choice for the purpose of filing the motions for a new trial and in arrest of judgment. The latter attorney has taken the present appeal." }, { "docid": "23639661", "title": "", "text": "own defense, he never stated that it was geographically impossible for him to have been present where Pomeranz placed him — a claim made on his motion for a new trial. Finally, there was no satisfactory showing before the trial judge as to reasons why the supposed “documentary proof” which was allegedly in the hands of an accountant employed by Bache & Co. in New York could not have been brought to the Court’s attention during trial by the exercise of due diligence. In these circumstances, we cannot say that Judge Wyatt abused his discretion in denying the motion to reopen Edwards’ case. See United States v. Houlihan, 332 F.2d 8 (2d Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (1964). Similarly, the district judge cannot be faulted for refusing a new trial to Edwards on the ground of newly discovered evidence. When Edwards requested additional time to submit “the documentary evidence” in support of this motion, Judge Wyatt granted him in excess of two weeks to present this material. But, nothing further was submitted, and, accordingly, the motion was denied as being “without merit.” It is fundamental “that a defendant seeking a new trial under any theory must satisfy the district court that the material asserted to be newly discovered is in fact such and could not with due diligence have been discovered before or, at the latest, at the trial.” United States v. Costello, 255 F. 2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958). See also United States v. Passero, 290 F.2d 238, 244-245 (2d Cir.), cert. denied, 368 U.S. 819, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). III. We have carefully considered appellants’ remaining contentions and find them without merit; accordingly, all of the convictions are affirmed. . On May 19, 1966, Edwards’ appeal was dismissed for failure to file his brief and appendix in accordance with the schedule previously set down by this court. On June 20, 1966, Edwards moved to vacate the dismissal, citing unusual circumstances which prevented his attorney from devoting" }, { "docid": "13389820", "title": "", "text": "213 F.2d 235, 238. The motion here showed on its ^ace ^ac^g on which it was based came t0 the attention of the defendants an(j their counsel before the verdict of jury was returned; it is plain there-£ore -y^at the motion cannot qualify as one £or a new trial based on newly discovere(j evidence. The proper time to have presented these matters to the court wag the first motion for a new trial wag made on November 5> i958. Appenants simply failed to utilize the one ayailabIe remedy they had. When the trial court considered this motion to vacate the sentence, it had nothing before it upon which it was authorized to act; also when the court did undertake, notwithstanding this in firmity in the motion, to pass upon its merits, it found as a fact that the communication from the bailiff to the juror was not prejudicial. There was no controversy as to the fact of that communication, but the inference which the court drew that the communication as made was not prejudicial was an inference which the court could properly make if it was entitled to consider the motion at all. Such an inference is a finding of fact. We cannot perceive that this finding was clearly erroneous or that in making that ruling the trial court abused its discretion. Since we find no error in the record the judgment and the order are affirmed. . \"The Court: Where is the objection? Mr. Fordell: Because there is no proof that those figures that appear on that copy there wore figures that were made up by Mr. Zacharski. Just some handwriting on those copies.\" . “Even where there is no dispute about the facts, if different reasonable inferences may be drawn from the evidence, we are forbidden to disturb the findings based on such inferences unless they are clearly erroneous.” Central Ry. Signal Co. v. Longden, 7 Cir., 194 F.2d 310, 318. Accord: Rich v. Pappas, 6 Cir., 229 F.2d 308, 313." }, { "docid": "23487251", "title": "", "text": "and which, if they involve a deprivation of constitutional rights, may well be considered on a motion under section 2255 of title 28, United States Code. But they certainly do not constitute newly discovered evidence. We are compelled to conclude that the defendant’s motion for a new trial was not based to any extent whatever upon the grounds of newly discovered evidence. It necessarily follows that the motion was required by Rule 33 to be filed within 5 days after the verdict and that its subsequent filing did not toll the time limited by Rule 37 (a) (2) for taking an appeal from the judgment of conviction. The present appeal accordingly does not bring the merits of that judgment to this court for review. The appeal was, however, taken within 10 days after the entry of the order denying the defendant’s untimely motion for a new trial and the question remains whether it was effective to bring that order, as distinguished from the antecedent judgment of conviction, to this court for review. It has long been settled that ordinarily the denial of a motion for a new trial is not appealable since it does not involve appealable subject matter which is independent of and reviewable separately from the judgment with respect to which the new trial is sought. Clune v. United States, 1895, 159 U.S. 590, 591, 16 S.Ct. 125, 40 L.Ed. 269; Lefco v. United States, 3 Cir., 1934, 74 F.2d 66, 69; McElheny v. United States, 9 Cir., 1944, 146 F.2d 932, 933; Greenwood v. Greenwood, 3 Cir., 1955, 224 F.2d 318, 319. There is an exception to this rule, however, in the case of a motion for a new trial which is based upon grounds arising subsequent to the antecedent judgment and which accordingly could not have been considered upon an appeal from that judgment. John E. Smith’s Sons Co. v. Lattimer Foundry & Mach. Co., 3 Cir., 1956, 239 F.2d 815, 816. Newly discovered evidence asserted as a ground for a new trial comes within this category and the denial of a motion based upon that" }, { "docid": "8669353", "title": "", "text": "PER CURIAM: This case is before us on the Government’s motion to dismiss the appeal as frivolous and utterly lacking in merit. Frederick Douglas Williams was tried by the court without a jury on January 14, 1969, for the theft of United States Government property in violation of 18 U.S.C. § 641. He was found guilty and was thereupon sentenced to a term of imprisonment and to pay a fine; the judgment was docketed the same day. He gave no notice of appeal from the January 14, 1969, judgment of conviction and sentence although he was then advised by the court of his right of appeal and informed that if he desired an appeal he should file a written notice of intention to appeal with the clerk of the district court “within 10 days from this date.” On February 6, 1969, Williams filed his motion for a new trial under Rule 33, Fed.R.Crim.P. based upon newly discovered evidence and for release on bail. In support of this motion, affidavits by two persons attacking the credibility of the testimony given by the Government’s chief witness at the trial were filed. The motion came on for hearing on February 10, 1969, upon the affidavits and argument of counsel. In denying this motion for a new trial the district court cited, as authority, United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1945), which held that newly discovered evidence going only to the question of the credibility of a witness is not sufficient to justify the granting of a new trial. Pitts v. United States, 263 F.2d 808 (2 Cir.), cert. denied 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535 (1959), reh. denied 361 U.S. 857, 80 S.Ct. 48, 4 L.Ed.2d 97 (1959), sets out the requirements of a motion for new trial based on the ground of newly discovered evidence: “* * * (1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i. e., discovered after the trial; (2) the motion must allege facts from which the court may" }, { "docid": "8669354", "title": "", "text": "of the testimony given by the Government’s chief witness at the trial were filed. The motion came on for hearing on February 10, 1969, upon the affidavits and argument of counsel. In denying this motion for a new trial the district court cited, as authority, United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1945), which held that newly discovered evidence going only to the question of the credibility of a witness is not sufficient to justify the granting of a new trial. Pitts v. United States, 263 F.2d 808 (2 Cir.), cert. denied 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535 (1959), reh. denied 361 U.S. 857, 80 S.Ct. 48, 4 L.Ed.2d 97 (1959), sets out the requirements of a motion for new trial based on the ground of newly discovered evidence: “* * * (1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i. e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.” Id. 263 F.2d at page 810. These requirements were not met in the present case. The record discloses that the alleged “newly discovered” evidence was not newly discovered at all. It clearly appears that the facts disclosed in the supporting affidavits were within Williams’ knowledge on and before the day of his trial. As stated by the court in United States v. Johnson, 327 U.S. 106, 113, 66 S.Ct. 464, 467, “While a defendant should be afforded the full benefit of this type of rectifying motion [a motion for a new trial on the ground of newly discovered evidence], courts should be on the alert to see that the privilege of its use is not abused.” We find no error in the denial of the motion for a new trial. The Government’s" }, { "docid": "21380915", "title": "", "text": "v. United States, 9 Cir., 310 F.2d 924, decided November 20, 1962. It would appear from the portion of the record cited by appellee that the trial court asked counsel for appellant if he had any objections to the instructions given or refused, and that counsel indicated an objection only with regard to the refused instruction on circumstantial evidence. Appellant has not asked us to notice this matter as plain error but, in any event, we hold that it did not constitute plain error. Fifth, appellant contends that in giving the instruction quoted in the margin, the trial court erroneously coerced the jury into bringing in a verdict, and asked it to consider factors outside the evidence. The objection taken to the giving of this instruction was not adequate as it failed to state a ground for the objection. But, proceeding to the merits, the questioned instruction is almost identical with an instruction given in United States v. Tomoya Kawakita, S.D.Cal., 96 F.Supp. 824, 855-856, which instruction was approved by this court on appeal. Tomoya Kawakita v. United States, 9 Cir., 190 F.2d 506, 521-528. In our view the giving of this charge was not, under the circumstances of this case, prejudicial to appellant. Sixth, appellant contends that since the 1958 tax return which Ramona E. Rodriguez signed, constituted a declaration under the penalty of perjury, the effect of permitting her to testify at the trial that the return was not true and correct is “to permit a foundation for prosecution to be based on perjured testimony.” Appellant also invokes the rule that a conviction cannot stand where the testimony of a material witness is false and without which a jury might have reached a different conclusion, citing United States v. Johnson, 7 Cir., 149 F.2d 31; and Martin v. United States, 5 Cir., 17 F.2d 973. In both Johnson and Martin, affidavits submitted after trial in support of motions for a new trial on the ground of newly-discovered evidence tended to show that a major witness for the prosecution had testified falsely at the trial. But in our case" }, { "docid": "11165504", "title": "", "text": "to support a motion for new trial on the ground of newly discovered evidence, the evidence must not only be newly discovered, but it must be made to appear that the failure to discover it sooner was not due to a lack of due diligence upon the part of the defendants. Pitts v. United States, 263 F.2d 808 (C. A. Alaska, 1959) cert. denied 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535, rehearing denied 361 U.S. 357, 80 S.Ct. 48, 4 L.Ed.2d 97; Fernandez v. United States, 329 F.2d 899, 904 (C.A. 9), cert. denied 379 U.S. 832, 85 S.Ct. 62, 13 L.Ed. 2d 40; Ferina v. United States, 302 F.2d 95, 112-114 (C.A. 8), cert. denied, sub nom. Cardarella v. United States, 371 U. S. 819, 83 S.Ct. 35, 9 L.Ed.2d 59; Mills v. United States, 281 F.2d 736, 739 (C.A. 4); United States v. Costello, 255 F.2d 876, 879-831 (C.A. 2), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551. Not only were many of the allegations of misconduct now asserted to be newly discovered raised by the defendants in their original motion for new trial, but there is a total lack of showing of any facts upon which diligence might be inferred. In their original motion for new trial, the defendants alleged misconduct upon the part of marshals and jurors of much the same nature as is now alleged. The action of this Court in finding such charges in the original motion wholly without merit has now been affirmed by the Court of Appeals. Furthermore, from the record upon that motion it appeared that bellboys were offered or received large sums of money to give affidavits charging misconduct upon the part of marshals and jurors. Also at that time one lady juror was charged with making statements in Chattanooga, Tennessee, with reference to jury misconduct at a time when she was in fact in the State of Florida. With regard to diligence, the present record is totally devoid of any showing that the evidence now presented as newly discovered could not have been discovered" }, { "docid": "22919535", "title": "", "text": "in this record is Sol Lindenbaum’s deposition in which he gives a nonexpert opinion that the initials are those of John Mitchell. Since he was familiar with Mitchell’s initials his opinion was competent evidence. In their motion for a new trial the appellants have tendered testimony, though not an affidavit, by an un-named handwriting expert offering a contrary opinion. Lindenbaum’s lay opinion might well be outweighed by that of a well-qualified expert able to make a convincing demonstration of the reasons for his contrary opinion. However, Rule 33 motions for a new trial are directed to the trial court’s discretion, and our function on appeal is to decide whether the trial judge abused that discretion or failed to exercise it. See, e. g., United States v. Bujese, 371 F.2d 120 (3d Cir. 1967). Generally five requirements must be met before a district court will order a new trial on the ground of newly discovered evidence: United States v. Howell, 240 F.2d 149, 159 (3d Cir. 1956). Accord, United States v. Meyers, 484 F.2d 113 (3d Cir. 1973); United States v. Bertone, 249 F.2d 156, 160 (3d Cir. 1957); United States v. Nigro, 253 F.2d 587 (3d Cir. 1958). (a) the evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. Appellants have failed to satisfy at least two of these requirements. First, the “newly discovered evidence” was in fact not newly discovered because the forgery of Mitchell’s initials, if in fact they were forged, could have been discovered at the time of the trial by subjecting the initials to expert handwriting analysis. Certainly the matter of proper authorization was warmly contested. Secondly, appellants do not allege any facts from which the court can" } ]

[ { "docid": "23297230", "title": "", "text": "circumstances surrounding the obtaining of a statement from a suspect held in custody, in order to determine whether the statement was coerced or the product of misunderstanding. Since almost any information obtained from a suspect, however innocuous it appears on its face, may prove to be incriminating, a broad application of the Miranda rule avoids the difficult and sometimes impossible task of determining whether the person in custody acted voluntarily and with an understanding of his rights. The safest and simplest course for an arresting authority, now usually followed, is to warn the suspect of his constitutional rights before any questioning at all whether or not it is investigative in nature. A person’s name, age, address, marital status and similar data, while usually non-incriminatory in character, may in a particular context provide the missing link required to convict. On the other hand, information as to a suspect’s identity is required immediately to enable the police to book and arraign the suspect and to permit the magistrate to determine the amount of bail to be fixed and whether persons claiming to be relatives should be allowed to confer with the suspect. Indeed, a suspect who refuses to furnish his name or address may be ordered by the court to furnish information that will facilitate his identification, such as fingerprints, see Bonaparte v. Smith, 362 F.Supp. 1315, 1318-19 (S.D.Ga.), affd., 484 F.2d 956 (5th Cir. 1973) cert. denied, 415 U.S. 981, 94 S.Ct. 1572, 39 L.Ed.2d 878 (1974), photographs, see Gilbert v. United States, 366 F.2d 923, 932-33 (9th Cir. 1966), cert. denied, 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed.2d 1370 (1967), handwriting exemplars, see Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), blood samples, see Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), or similar identifying data, and to participate in a properly constituted line-up with the aid of counsel, see United States v. Wade, 388 U.S. 218, 221-22, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Although data thus obtained may be distinguished from information as to identity" } ]

[ { "docid": "15470731", "title": "", "text": "inspectors had implied that the first was legitimate because it was not stolen. Given these facts, the postal inspectors were justified in taking the relatively simple step of tracing the origin of the money orders, which in no way impinged on Prewitt’s rights. Once they had done so, the fact that the money orders had been altered further justified arresting the man who tried to spend them. Defendant also asserts that the correspondence should have been suppressed because he was forced to “authenticate” the letters in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The basis of this claim is that: (1) the search warrant obtained by the postal inspectors only permitted seizure of correspondence from Charles Baker to J. W. Prewitt; (2) the postal inspectors nonetheless seized letters from Charles Baker to “Maji Mabarafu” because Prewitt had admitted that he used the alias Maji Mabarafu; and (3) this information was obtained from Prewitt without Miranda warnings. We find no merit to this argument. Prewitt was given Miranda warnings when he was arrested on December 19, 1975. On December 22, he was photographed, fingerprinted, and asked whether he used any aliases. This question was routinely asked of arrested persons for the purpose of obtaining identifying information. The requirements of Miranda do not attach to the taking of a defendant’s aliases in circumstances such as these. The Fifth Amendment prohibits only compelled testimony, and the fact that defendant has certain identifying characteristics which police officials record does not render the disclosure of those characteristics testimonial in character. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). An alias is as much an identifying characteristic as a defendant’s voice or handwriting, and the Supreme Court has held that the compelled production of voice or handwriting exemplars does not violate the Fifth Amendment. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Our analysis is in accord with that of other" }, { "docid": "15470733", "title": "", "text": "circuits with respect to whether Miranda warnings must be given when background data is gathered. See, e.g., United States ex rel. Hines v. La Vallee, 521 F.2d 1109, 112-13 (2d Cir. 1975); United States v. Martinez, 512 F.2d 830, 833 (5th Cir. 1975). Prewitt’s final argument in support of his claim that the correspondence should have been suppressed is that the warrant, which specified only “correspondence between Charles Baker and J. W. Prewitt” as its object, was too broadly drawn to satisfy the Fourth Amendment. We disagree. At the time the warrant was issued, greater particularity was not possible. Moreover, the description contained in the warrant delineated the property to be seized with enough precision to prevent the police from engaging in a “fishing expedition.\" The Fourth Amendment, which only prevents “unreasonable” searches and seizures, does not demand that the police be able to minutely identify every item for which they are searching. Therefore, we hold that the district court did not err in refusing to suppress the correspondence taken from Prewitt’s bedroom. Prewitt also asserts that a third money order that was in his possession when he was arrested should have been suppressed because the arrest was made without probable cause. For reasons we have already stated, we find this argument to be merit-less. II Defendant next contends that the district court committed reversible error when it twice refused to order an examination to ascertain whether he was mentally competent. The first occasion was at the outset of trial and the second was during sentencing. There is no substance to defendant’s claim with respect to the first occasion. The trial took place in September 1976. Defendant had been examined at a federal facility in Springfield, Missouri in April 1976 and found competent to stand trial. Moreover, a psychiatrist who examined Prewitt on August 30,1976, two weeks before the commencement of trial, found him “coherent, self concept explicit, [and] aware of his own action well enough to stand trial at present.” The results of this examination were available to the district court. Given these two uncontroverted findings that Prewitt was" }, { "docid": "15470732", "title": "", "text": "was given Miranda warnings when he was arrested on December 19, 1975. On December 22, he was photographed, fingerprinted, and asked whether he used any aliases. This question was routinely asked of arrested persons for the purpose of obtaining identifying information. The requirements of Miranda do not attach to the taking of a defendant’s aliases in circumstances such as these. The Fifth Amendment prohibits only compelled testimony, and the fact that defendant has certain identifying characteristics which police officials record does not render the disclosure of those characteristics testimonial in character. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). An alias is as much an identifying characteristic as a defendant’s voice or handwriting, and the Supreme Court has held that the compelled production of voice or handwriting exemplars does not violate the Fifth Amendment. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Our analysis is in accord with that of other circuits with respect to whether Miranda warnings must be given when background data is gathered. See, e.g., United States ex rel. Hines v. La Vallee, 521 F.2d 1109, 112-13 (2d Cir. 1975); United States v. Martinez, 512 F.2d 830, 833 (5th Cir. 1975). Prewitt’s final argument in support of his claim that the correspondence should have been suppressed is that the warrant, which specified only “correspondence between Charles Baker and J. W. Prewitt” as its object, was too broadly drawn to satisfy the Fourth Amendment. We disagree. At the time the warrant was issued, greater particularity was not possible. Moreover, the description contained in the warrant delineated the property to be seized with enough precision to prevent the police from engaging in a “fishing expedition.\" The Fourth Amendment, which only prevents “unreasonable” searches and seizures, does not demand that the police be able to minutely identify every item for which they are searching. Therefore, we hold that the district court did not err in refusing to suppress the correspondence taken from Prewitt’s bedroom. Prewitt also" }, { "docid": "15262560", "title": "", "text": "384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, [388 U.S. 218] at 222-223, 87 S.Ct. [1926] at 1929-1930 [18 L.Ed.2d 1149]. 388 U.S. at 266-267, 87 S.Ct. at 1953. Thereafter in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), in a case involving voice exemplars, the same Court noted: Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. 410 U.S. at 7, 93 S.Ct. at 768. And in the companion case of United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), the Court, in the case of a potential defendant who was directed by a subpoena to produce handwriting and printing exemplars, held that: We have held today in Dionisio, that a grand jury subpoena is not a “seizure” within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of “physical characteristics” that are “constantly exposed to the public.” Supra, [410 U.S.] at 9-10, 93 S.Ct., at 769. Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. See United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 898-899; Bradford v. United States, 5 Cir., 413 F.2d 467, 471-472; cf. Gilbert v. California, 388 U.S. 263, 266-267," }, { "docid": "15226541", "title": "", "text": "than oral testimony indicates that the fifth amendment privilege in this regard is very weak. Not only has the Court refused to extend the privilege to the custodian of corporate documents or those belonging to other collective entities such as unions and partnerships, see Fisher, 425 U.S. at 411, 96 S.Ct. at 1581, but it has refused to apply the privilege to a substantial list of other things, of which the act of production would be incriminating in the same sense that the production of these records would be. See, e.g., South Dakota v. Neville, -- U.S. --, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983) (compelling blood-alcohol test not fifth amendment violation); United States v. Dionisio, 410 U.S. 1, 5-7, 93 S.Ct. 764, 767-768, 35 L.Ed.2d 67 (1973) (compelling production of voice exemplars not fifth amendment violation); Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 1953-54, 18 L.Ed.2d 1178 (1967) (compelling production of handwriting exemplars not fifth amendment violation); Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966) (compelling blood test not fifth amendment violation); Holt v. United States, 218 U.S. 245, 252-53, 31 S.Ct. 2, 6-7, 54 L.Ed. 1021 (1910) (compelling defendant to try on clothes to demonstrate fit not fifth amendment violation). We must also view the general principle of Fisher in light of the Court’s opinion in Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). In Beilis the documents subpoenaed were the books and records of a small law partnership. The Court held that because the individual partner held the partnership records in a representative capacity for the partnership, he could not assert a fifth amendment privilege with reference to those documents. Id. at 100-01, 94 S.Ct. at 2189-90. The thrust of the Court’s analysis was that fifth amendment assertions have to focus on the surrender of property which is “the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.” Id. at 90, 94 S.Ct. at 2184 (quoting from United States v." }, { "docid": "5609731", "title": "", "text": "245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). It is well founded that handwriting exemplars are not protected by the Fifth Amendment privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Schmerber has made it clear that the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the seizure of the person necessary to bring him in contact with government agents, and the subsequent search for and seizure of evidence. As to the seizure of the appellant, we have already found that a valid border search led to the arrest of the appellant. As to the possible violation of the Fourth Amendment at the second level —the subsequent search for and seizure of evidence — the Supreme Court has as recently as last year stated that no violation of the Fourth Amendment is found from compelling execution of handwriting or voice exemplars. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). Dionisio relied on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which held that the Fourth Amendment provides no protection for what “a person knowingly exposes to the public, even in his home or office.” The physical characteristics of a person’s voice or handwriting are constantly exposed to the public, hence no intrusion into a person’s privacy results from the compelled execution of a handwriting exemplar. We find no Fourth or Fifth Amendment violation to exist. IY. The appellant next contends that pursuant to Rule 16(f) of the Federal Rules of Criminal Procedure, the government’s motion to produce was not timely because not made within 10 days after arraignment. Rule 16(f) dealing with time for motions applies only to defendants. In the Matter of Magnus, Mabee & Reynard, Inc., 311 F.2d 12 (2nd Cir. 1962). V. Appellant contends also that the pretrial photographic identification procedure" }, { "docid": "355615", "title": "", "text": "at 48; Battle v. Cameron, supra, 260 F.Supp. at 806. A Second Circuit case, again factually quite similar to the one here, United States v. Baird, supra, in effect combined the first two theories. It disapproved the notion of a naked “waiver,” but found that the defendant’s implicit reliance upon the theory that statements made in psychiatric examinations are “real or physical evidence” in order to have his expert’s testimony received despite the hearsay rule, created an estoppel against objection to the Government’s reliance upon the same theory to overcome the Fifth Amendment bar. 414 F.2d at 709. See also United States v. Weiser, supra, 428 F.2d at 936. Finally, in a fourth category of cases, the Fifth Amendment claim has been rejected in whole or in part because of a belief that the privilege against self-incrimination narrowly reaches only statements introduced to show that the defendant actually committed the offense in question, but not statements brought in on the issue of sanity. See, e.g., United States v. Whitlock, supra, 663 F.2d at 1107; United States v. Bohle, supra, 445 F.2d at 66-67; United States v. Albright, supra, 388 F.2d at 725. We rely upon none of these rationales. The second of them has been categorically rejected, and the last cast in grave doubt, by the Supreme Court’s decision in Estelle v. Smith, supra. There the State urged, as the Ninth Circuit in Handy had held, that Smith’s communications to the court-appointed psychiatrist during an examination limited to competency to stand trial were nontestimonial in character, and specifically sought support by way of analogy to the Court’s decisions in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplar), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar), United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineup), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood sample). The Court dismissed the argument out of hand. The psychiatrist’s prognosis had been based on statements made to him" }, { "docid": "14480347", "title": "", "text": "as nothing intervened to purge the taint, the confessions taken by police officials shortly thereafter were improperly received in evidence. Art. 31(d); Mil.R.Evid. 304(a) and (c)(3), Manual, supra; United States v. Butner, 15 M.J. 139, 144 (C.M.A.1983), citing United States v. Seay, 1 M.J. 201, 204 (C.M.A.1975)(lead opinion by Fletcher, C.J.). As these latter confessions constituted the heart of the Government’s black-marketing case, I join my Brothers in setting aside appellant’s conviction of specification 1 of the Charge. See n. 2, supra. Thus, while I am persuaded that the order to account for purchases was lawful and that appellant was properly convicted of failing to satisfy the regulatory requirement, the use of specific statements elicited from him in violation of his constitutional and codal rights cannot be justified by similar military necessity. . It is quite clear that the Fifth Amendment protections do not apply to non-testimonial conduct. For example, the following can be required of a person notwithstanding the fact that it will incriminate him: Blood samples: Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Refusal to take blood test may be used as evidence in DUI: South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). It’s worth reading for its analysis of the Fifth Amendment. Voice exemplars: United States v. Wade, 388 U.S. 218, 87 S.Ct. 2926, 18 L.Ed.2d 1149 (1967), United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). Handwriting exemplars: Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1966); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). Duty to report hit and run: California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). Urine sample: Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983). Note: Chief Judge Everett relied upon Neville and Schmerber to find no Fifth Amendment protection. Contents of Business Records: United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d" }, { "docid": "12051475", "title": "", "text": "S.Ct. 1684, 6 L.Ed.2d 1081 (1961), gave impetus to the process of incorporating various provisions of the Bill of Rights into the Fourteenth Amendment, the Court considered whether extraction of a blood specimen infringed on the privilege against self-incrimination or constituted an unreasonable search and seizure. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), both questions were answered in the negative. In that case a blood specimen had been taken from a driver who had been arrested for drunk driving but who had refused to submit voluntarily to the blood test. That the Supreme Court had adopted Wigmore’s theory of “testimonial compulsion” in interpreting the privilege against self-incrimination became evident in cases like United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (voice exemplars); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (grand jury subpoenas for voice exemplars), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (grand jury subpoenas for handwriting exemplars). Under this view, words or conduct which lack testimonial characteristics are not protected by the Fifth Amendment. Cf. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); 8 Wigmore, Evidence § 2263 (McNaughton rev. 1961). This Court has rejected efforts to utilize the same theory of “testimonial compulsion” as an aid in interpreting the intent of Congress regarding Article 31 of the Uniform Code of Military Justice. Now, in the face not only of the Supreme Court’s opinions but also of a mounting tide of state court precedents, the question requires a new look. Recently we refused to find that a right to counsel existed with respect to handwriting exemplars which a Secret Service agent obtained from a serviceperson who was in confinement at the time. United States v. McDonald, 9 M.J. 81 (C.M.A. 1980). We could not conceive that the right to counsel during custodial interrogation that was made available by Miranda v." }, { "docid": "10252343", "title": "", "text": "handwriting is not a personal communication of a defendant but rather “an identifying physical characteristic.” United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); cf., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). As to the relationship of compelled handwriting exemplars to the Fourth Amendment, all doubts as to the application of this Amendment to physical evidence seized from an individual which is merely an element of his physical characteristics were resolved by the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In that case, the Supreme Court established that law enforcement officials may not compel the production of physical evidence, absent a showing of the reasonableness of the seizure, even if that physical evidence is an element of an individual’s physical characteristics such as fingerprint evidence. The Court stated: “ * * * (W)e find no merit in the suggestion * * * that fingerprint evidence, because of its trustworthiness, is not subject to the proscriptions of the Fourth and Fourteenth Amendments. Our decisions recognize no exception to the rule that illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof. The exclusionary rule was fashioned as a sanction to redress and deter overreaching governmental conduct prohibited by the Fourth Amendment. To make an exception for illegally seized evidence which is trustworthy would fatally undermine these purposes. In a similar vein, the Court of Appeals for the Seventh Circuit, in ruling upon the reasonableness of a grand jury subpoena requiring certain individuals to provide voice exemplars, concluded that “(c)ompelling a person to furnish an exemplar of his voice is as much within the scope of the fourth amendment as is compelling him to produce his books and papers.” Dionisio v. United States, 442 F.2d 276, 279 (7th Cir. 1971). As we can see no distinction between fingerprints, voice exemplars, and handwriting exemplars, and because the" }, { "docid": "15262559", "title": "", "text": "risk of a possible indictment against her. In view of the relevance and materiality of the matter sought, the Government’s application is clearly made in good faith, is not part of a general fishing expedition and is not made to harass the movants herein. Mr. and Mrs. McKeon nonetheless contend that the requested exemplars will not be admissible at the trial and production of the same will require “testimony” from Mrs. McKeon in violation of her marital privilege. The Supreme Court, however, has indicated otherwise. In Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), that Court held: First. The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of “an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,” and not* “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ * * Sehmerber v. State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, [388 U.S. 218] at 222-223, 87 S.Ct. [1926] at 1929-1930 [18 L.Ed.2d 1149]. 388 U.S. at 266-267, 87 S.Ct. at 1953. Thereafter in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), in a case involving voice exemplars, the same Court noted: Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what" }, { "docid": "8915876", "title": "", "text": "never “applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court’s view, did not involve compelled testimonial self-incrimination of some sort.” The requirement is two-fold: the compulsion must be of testimony, and the testimony must have a tendency to show guilt. The psychiatrists’ interrogation of Hollis on subjects presenting no threat of disclosure of prosecutable crimes, in the belief that the substance of Hollis’ responses or the way in which he gave them might cast light on what manner of man he was, involved no “compelled testimonial self-incrimination” even though the consequence might be more severe punishment. The mere fact that interrogation is the typical method for conducting psychiatric evaluations does not significantly differentiate the case from other instances where the Supreme Court has held that a defendant may be required to cooperate even with respect to the issue of guilt, e. g., by giving blood samples, Schmerber v. California, 384 U.S. 757, 763, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), handwriting or voice exemplars, Gilbert v. California, 388 U.S. 263, 265-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1972), or donning a blouse worn by the perpetrator of the crime, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); see Fisher, supra, 425 U.S. at 408, 96 S.Ct. 1569. Lower federal courts and state courts have held that interrogation directed to determining sanity does not violate the self-incrimination privilege, even in cases where the inquiry was made before an insanity defense was pleaded, see 8 Wigmore, Evidence § 2265 at 399 and cases cited in fn. 12 (McNaughton rev. 1961 and 1975 supp.). While the cases reaching the same result after a defendant has indicated an intention to rely on the insanity defense and to call psychiatrists on his own behalf, see Pope v. United States, 372 F.2d 710, 717-21 (8 Cir. 1967) (en banc, Blackmun, J.), cert." }, { "docid": "5609730", "title": "", "text": "a “founded suspicion” and that for purposes of further inquiry, the stopping of the ear was justified. Upon stopping the car, the agent detected the smell of marijuana coming from the car. This was held sufficient to establish probable cause for the subsequent search. In the present case, Zumwalt, upon validly stopping the Volkswagen, radioed his other unit and learned that marijuana had been found in the Ford. This additional information is sufficient to establish probable cause for the subsequent retention of the driver’s license for purposes of investigation. The facts are therefore sufficient to warrant a temporary detention of the Volkswagen. Also upon learning that marijuana had been discovered in the Ford, probable cause was established to justify the seizure of the appellant’s driver’s license. III. The appellant contends also that the compelled production of the handwriting exemplars violates the Fourth and Fifth Amendment right against self-incrimination. It has long been held that the compelled display of physical characteristics infringes no interest protected by the privilege against self-incrimination. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). It is well founded that handwriting exemplars are not protected by the Fifth Amendment privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Schmerber has made it clear that the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the seizure of the person necessary to bring him in contact with government agents, and the subsequent search for and seizure of evidence. As to the seizure of the appellant, we have already found that a valid border search led to the arrest of the appellant. As to the possible violation of the Fourth Amendment at the second level —the subsequent search for and seizure of evidence — the Supreme Court has as recently as last year stated that no violation of the Fourth Amendment is found from compelling execution of handwriting or voice exemplars. United States v. Dionisio," }, { "docid": "10252342", "title": "", "text": "or seizure is unreasonable depends upon the particular facts and circumstances of each case, with an exact formula to determine reasonableness being impossible to formulate. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751 (1958), cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958). The narrow issues presented for determination by the Government’s petition are (1) whether a compelled handwriting exampiar comes within the search and seizure provisions of the Fourth Amendment and, if the answer to this question is in the affirmative, (2) whether the ordering of the exemplars would be an unreasonable search and seizure. I The issue of whether the Constitution prohibits the Government from compelling an individual to produce handwriting exemplars or from using such forced exemplars in a criminal trial has come to the fore in recent years. Decisions of the United States Supreme Court clearly indicate that the Fifth Amendment does not prohibit the compelling or using of such exemplars and that handwriting is not a personal communication of a defendant but rather “an identifying physical characteristic.” United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); cf., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). As to the relationship of compelled handwriting exemplars to the Fourth Amendment, all doubts as to the application of this Amendment to physical evidence seized from an individual which is merely an element of his physical characteristics were resolved by the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In that case, the Supreme Court established that law enforcement officials may not compel the production of physical evidence, absent a showing of the reasonableness of the seizure, even if that physical evidence is an element of an individual’s physical characteristics such as fingerprint evidence. The Court stated: “ * * * (W)e find no merit in the suggestion *" }, { "docid": "3187835", "title": "", "text": "States Attorney for the sole purpose of comparing handwriting. No part of the writing was to be used for any other purpose and no part of the text was to be used for any purpose except the comparison of handwriting. Patrick Mertens moved to suppress introduction of the evidence for any purpose. Mertens based this motion on claims of violation of the right of protection against unreasonable search and seizure under the 4th Amendment, the rights to be protected against compulsory self-incrimination under the 5th Amendment and the privilege of confidentiality of communication between lawyer and client. Requiring a defendant to produce examples of his handwriting does not violate the privilege against self-incrimination under the 5th Amendment: “A mere handwriting exemplar, in contrast to the contents of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.” Gilbert v. California, 388 U.S. 263, at pp. 266-267, 87 S.Ct. 1951, at p. 1953, 18 L.Ed. 2d 1178 (1967). There is no violation of 4th Amendment protection against unreasonable search and seizure by compelling the production of handwriting exemplars. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Doe (Schwartz) 457 F.2d 895, 898-899 (3rd Cir. 1972). There is no violation of the protection against unreasonable search and seizure when the objects seized are in plain view of a person lawfully present at the moment of the view. The papers were not in a place protected by the 4th Amendment. They were visible in the hands of a spectator in a public courtroom. They were not concealed upon the person of the spectator requiring a search. Thus we have no question as to whether the exigencies of the situation would require a warrant. Such a doctrine applies only when there ' is a claim of “plain view” of the object seized where otherwise a warrant would be required, such as a seizure connected with an arrest of a suspect. Fed.R.Cr.P. 17(c) allows the" }, { "docid": "15262563", "title": "", "text": "upheld, the “primary assumption” was that a summoned party must “give what testimony one is capable of giving” absent an exemption “grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth.” Ibid. One application of this broad duty to provide relevant evidence has been the recognition, since early times, of an obligation to provide certain forms of nontes-timonial physical evidence.7 In Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (Holmes, J.), the Court found that the common-law evidentiary duty permitted the compulsion of various forms of physical evidence. In Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to “fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), handwriting was held, “like the . .. body itself” to be an “identifying physical characteristic,” subject to production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power. See also United States v. Mullaney, 32 F. 370 (CC Mo.1887). % ■%. sf: s{: % Nor is there any constitutional privilege of the taxpayer or other parties that is violated by this construction. Compulsion of handwriting exemplars is neither a search or seizure subject to Fourth Amendment protections, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), nor testimonial evidence protected by the Fifth" }, { "docid": "3330072", "title": "", "text": "431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977). The Supreme Court has held that a criminal defendant may be compelled to wear a piece of clothing in order to show that it fits him, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), to give a blood sample, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), or a handwriting, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), or voice exemplar, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), or to speak so that a witness may hear his voice quality or tone, United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In these cases, the Court said, evidence given by the defendant was not “rélat[ed] to some communicative act,” Schmerber v. California, 384 U.S. at 765, 86 S.Ct. 1826, and was not “used . . . for the testimonial or communicative content of what was to be said,” United States v. Dionisio, 410 U.S. at 7, 93 S.Ct. at 768. Had Dr. Grigson drawn his conclusion from Smith’s manner or deportment, his attention span or facial expressions, a strong argument might be made that he gathered only evidence like that involved in these cases. If Dr. Grigson had been analyzing only the patterns of the defendant’s speech, his grammar, organization, logical coherence, and similar qualities, the question would be closer but arguably the fifth amendment would still not apply. But as we have said, Dr. Grigson’s diagnosis of Smith rested principally on his conclusion that Smith showed no remorse; obviously Dr. Grigson drew that conclusion from the content of Smith’s statements to him. Indeed, Dr. Grigson testified, on cross-examination, that the most important basis of his diagnosis was the account of the crime which Smith gave him during their interview. App. 142-43. Dr. Grigson accepted that account as accurate and drew his conclusions accordingly, App. 192; he also based his diagnosis on comments Smith made and failed to make while he" }, { "docid": "3330071", "title": "", "text": "advised he has a right to remain silent. If the Defendant indicates that he wishes to exercise that right, he may not be questioned' by the psychiatrist for the purpose of determining dangerousness.” Smith v. Estelle, 445 F.Supp. 647, 664 (N.D.Tex.1977). Before we decide whether such warnings are required, however, we must consider the logically prior issue of whether Smith even had a right to refuse to be examined by Dr. Grigson. Ordinarily there would be no question; under the fifth amendment a criminal defendant of course cannot be forced to discuss his alleged crime with anyone who is able to use his statements as evidence against him at his trial. But the state insists that when the defendant is facing jury deciding whether to impose a death sentence, this rule does not apply, at least so long as the interrogator is a psychiatrist. The state argues first that the evidence Smith gave Grigson is not “testimonial” and therefore not within the fifth amendment privilege. See Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.), cert. denied 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977). The Supreme Court has held that a criminal defendant may be compelled to wear a piece of clothing in order to show that it fits him, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), to give a blood sample, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), or a handwriting, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), or voice exemplar, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), or to speak so that a witness may hear his voice quality or tone, United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In these cases, the Court said, evidence given by the defendant was not “rélat[ed] to some communicative act,” Schmerber v. California, 384 U.S. at 765, 86 S.Ct. 1826, and was not “used . . . for the testimonial or communicative content of what was to" }, { "docid": "8776943", "title": "", "text": "States, 218 U.S. 245, 252-53, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910). Drawing on this concept, the Supreme Court has defined the Fifth Amendment privilege as barring “testimonial compulsion ... or enforced communication by the accused,” Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), but held that a person’s identifying physical characteristics fall outside the protection of that guarantee. See United States v. Dionisio, 410 U.S. 1, 6, 93 S.Ct. 764, 767, 35 L.Ed.2d 67 (1973) (voice exemplars); Gilbert v. California, 388 U.S. 263, 266, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967) (handwriting exemplars). Consequently, the Fifth Amendment’s right against self-incrimination does not bar compliance with the subpoenas duces tecum issued in this case. Because the Marcoses’ contention draws no support from the United States Constitution, they invoke the Philippine Constitution. Article III, § 17 of the 1986 Constitution of the Republic of the Philippines, like the U.S. Fifth Amendment, provides that “[n]o person shall be compelled to be a witness against himself.” But the Philippine Constitution contains several provisions not found in the Fifth Amendment: “No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against” a witness. Phil. Const, art. Ill, § 12(2). On its face, the Philippine right against self-incrimination appears broader than its American analogue. In fact, the government concedes that handwriting exemplars are privileged under Philippine law, but disagrees that the Philippine Constitution would bar the other subpoenas. Given our conclusion that the Philippine Constitution is inapplicable, it is unnecessary and inappropriate for us to resolve this question of Philippine law. Turning to appellants’ statutory and executive agreement arguments, we set forth first what these sources of law provide. Under 28 U.S.C. § 1782(a) American courts are authorized to assist investigations instituted by foreign governments upon the request of the foreign state. Section 1782 also allows a foreign witness in U.S. proceedings to invoke privileges available under foreign law. S.Rep. No. 1580, 88th Cong., 2d Sess., reprinted in 1964 U.S. Code Cong, and Admin. News 3782, 3790 (§" }, { "docid": "12051474", "title": "", "text": "be submitted. Cf. United States v. Musguire, 9 U.S.C.M.A. 67, 25 C.M.R. 329 (1958) (blood specimen); United States v. Ruiz, 23 U.S.C.M.A. 181, 48 C.M.R. 797 (1974) (urine specimen). Meanwhile, the Supreme Court took a very different view in applying the protections of the Bill of Rights to the securing by law enforcement officials of body fluids, handwriting samples, and voice exemplars from suspects. In Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), which was decided before the Supreme Court had begun to incorporate into Fourteenth Amendment “due process” the safeguards of the Fourth and Fifth Amendments, it was held that the extraction of a blood specimen from an unconscious defendant by a doctor in a hospital emergency room did not constitute the shocking conduct that would run afoul of “due process”, as then conceived. In this regard, drawing of blood differed from the stomach pumping condemned in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Later, after Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), gave impetus to the process of incorporating various provisions of the Bill of Rights into the Fourteenth Amendment, the Court considered whether extraction of a blood specimen infringed on the privilege against self-incrimination or constituted an unreasonable search and seizure. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), both questions were answered in the negative. In that case a blood specimen had been taken from a driver who had been arrested for drunk driving but who had refused to submit voluntarily to the blood test. That the Supreme Court had adopted Wigmore’s theory of “testimonial compulsion” in interpreting the privilege against self-incrimination became evident in cases like United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (voice exemplars); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (grand jury subpoenas for voice exemplars), and United States v. Mara," } ]

[ { "docid": "11418179", "title": "", "text": "any merchandise \"into the Commerce of the United States,” through any document, oral statement or act which is material and false, or any omission which is material. 19 U.S.C. § 1592(a)(1988). . 28 U.S.C. § 1581(a) provides: \"The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.\" . In Pentax Corp. v. Robison, 924 F.Supp. 193 (CIT 1996), appeal docketed, No. 96-1320 (Fed.Cir. April 23, 1996), the court found it had jurisdiction over \"all issues relating to 'prior disclosure.' ” 924 F.Supp. at 196. However, that was in the context of an action consolidated with an enforcement action brought by the government to collect a penalty assessment. . 28 U.S.C. § 1581(i) provides: (i)In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section ... the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4)administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section ... . 28 U.S.C. § 1491 provides: The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. . 28 U.S.C. § 1346 provides: (a) The district courts shall have original jurisdiction, concurrent with the United States Court of" } ]

[ { "docid": "22332351", "title": "", "text": "novo. Guess? Inc. v. United States, 944 F.2d 855, 857 (Fed.Cir.1991). I. The first issue on appeal is whether the Court of International Trade had jurisdiction over Mitsubishi’s protest under 28 U.S.C. § 1581(a). Section 1581(a) provides: “The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under [19 U.S.C. § 1515 (1988 & Supp. V 1993) ].” Section 1515 requires an aggrieved party to file a protest under section 1514, which Customs must either grant or deny, before the party may sue under section 1581(a). See Nichimen Am., Inc. v. United States, 938 F.2d 1286, 1291-92 (Fed.Cir.1991). Section 1514(a) identifies the decisions that are subject to protest: [Decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title; (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under section 1520(e) of this title; shall be final and conclusive upon all persons ... unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade.... 19 U.S.C. § 1514(a). Section 1581(a) provides no jurisdiction for protests outside these exclusive categories. Playhouse Import & Export, Inc. v. United States, 843 F.Supp. 716, 719 (Ct. Int’l Trade 1994). MELA’s suit falls outside the section 1514(a) categories. Section 1514(a) applies exclusively to Customs “decisions” within the enumerated categories. Section 1514(a)" }, { "docid": "22259774", "title": "", "text": "1295(a)(5). DISCUSSION Fujitsu’s appeal challenges two rulings of the Court of International Trade. The first ruling is the court’s holding that it lacked jurisdiction to consider the deemed liquidation claims relating to Protests 1 and 2, because Fujitsu failed to timely protest either the liquidations of November 14 and December 5, 1997 (Protest 1), or the liquidation of November 28, 1997 (Protest 2). The second ruling is the court’s holding that the entries whose liquidation Fujitsu challenged in Protest 3 were not deemed liquidated at the rate of duty asserted on entry. Both the jurisdictional ruling relating to Protests 1 and 2 and the merits ruling relating to Protest 3 were based upon the Court of International Trade’s interpretation of the relevant statutory provisions. We review the court’s interpretation of those statutory provisions de novo. See VWP of Am., Inc. v. United States, 175 F.3d 1327, 1334 (Fed.Cir.1999). In Part I below, we address the jurisdictional issues relating to the deemed liquidation claims asserted in connection with Protests 1 and 2. In Part II, we address the merits of the deemed liquidation claim in Protest 3. I. A. The jurisdictional scheme The jurisdiction of the Court of International Trade is set forth in 28 U.S.C. § 1581. The two provisions of the statute that are relevant to this case are sections 1581(a) and 1581(i). Under section 1581(a), the Court of International Trade has “exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.” Section 515 is codified at 19 U.S.C. § 1515. Section 1515 provides for Customs’ review and subsequent allowance or denial of protests that are “filed in accordance with” 19 U.S.C. § 1514. 19 U.S.C. § 1515(a). Section 1514(a) lists the decisions of Customs that' may be the subject of protests. Included are decisions relating to “the liquidation or reliquidation of an entry.” 19 U.S.C. § 1514(a)(5). Section 1514(a) states that a Customs decision that may be the subject of a protest shall be “final and conclusive upon all persons" }, { "docid": "18672144", "title": "", "text": "515 of the Tariff Act of1930.” Section 515 of the Tariff Act of1930 corresponds to 19 U.S.C. § 1515 (1988), which establishes, in part, the requirement that Customs issue a decision granting or denying a protest filed under 19 U.S.C. § 1514. By its own terms and in conjunction with § 1515, the provisions in § 1581(a) indicate a party must satisfy the protest requirements contained in § 1514 before Customs may assess its claims and issue a protest denial from which the party may bring suit in the CIT pursuant to § 1581(a). The critical aspect of § 1514 for purposes of this action is subsection (a). This subsection, in part, identifies which Customs’ decisions are subject to protest as follows: [Decisions of the appropriate customs officer, including the legality of all orders and findings entering into the same, as to— (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title; (5) the liquidation or reliquidation of an entry, or any modification thereof; (6) the refusal to pay a claim for drawback; and (7) the refusal to reliquidate an entry under section 1520(c) of this title, shall be final and conclusive upon all persons * * * unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade * * *. 19 U.S.C. § 1514(a). Plaintiff argues Customs’ actions in this case are subject to protest under § 1514(a)(5). Pi’s Reply Br. at 19. A cursory reading of § 1514(a) appears to support plaintiffs position. On its face, the instruction that Commerce provides to Customs pursuant to 19 C.F.R. § 353.53a(d)(l) to assess antidumping duties “at rates" }, { "docid": "13424396", "title": "", "text": "of the Tariff Act governs the review of protests filed under 19 U.S.C. §1514 (1994), and is codified at 19 U.S.C. §1515 (1994). The Court construes this portion of Defendant’s motion to dismiss as a USCIT R. 12(b)(1) motion to dismiss for lack of jurisdiction over the subject matter. In deciding such a motion, the Court looks to whether the moving party challenges the sufficiency of the pleadings or the factual basis underlying the pleadings. In the first instance, the Court must accept as true all facts alleged m the non-moving party’s pleadings. In the second instance, the Court accepts as true only those facts which are uncontroverted. All other facts are subject to fact-finding by the Court. Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993). Here, Defendant does not attack the sufficiency of the allegations in Plaintiffs’ pleadings, but instead asserts Plaintiffs’ action is barred because Plaintiffs failed to exhaust their administrative remedies. Answer at para. 21. Thus, Defendant challenges the actual existence of subject matter jurisdiction. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1350 (2d ed. 1990). Therefore, the allegations in Plaintiffs’ Complaint are not controlling, and only uncontroverted factual allegations are accepted as true for purposes of the USCIT R. 12(b)(1) portions of this Motion To Dismiss. All other facts underlying the controverted jurisdictional allegations are in dispute and are subject to fact-finding by this Court. Section 1520(d) permits the reliquidation of an entry to refund any excess duties paid on goods qualifying under the rules of origin set out in 19 U.S.C. § 3332 for which no claim for preferential tariff treatment was made at the time of importation, if the importer, within one year after the date of importation, files a claim, notwithstanding the fact that a valid protest was not filed. At oral argument, the parties argued whether §1520(d) petition denials were final, and therefore protestable, under §1514. The wording of §1514(a) is somewhat unclear on this point. This lack of clarify leads to confiision regarding jurisdiction under §1581(a). If the denials are not protestable," }, { "docid": "18321976", "title": "", "text": "of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)-(h) of this section. . The court does not accept plaintiffs argument that any law which results in the importation or exclusion of goods is a law relating to revenues from imports. Such a reading of § 1581(i)(l) would render much of the rest of § 1581(i) meaningless. . 19 U.S.C. § 1514(a)(4) permits an aggrieved party to protest \"the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws...” .28 U.S.C. § 1581(a) reads: The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. Section 515 of the Tariff Act of 1930 (19 U.S.C. § 1515) sets out the procedures for administrative review of protests and indicates that 19 U.S.C. § 1514 defines the substantive law that serves as the basis for § 1581(a) protest jurisdiction. 19 U.S.C. § 1514 reads in relevant part: [Decisions of the appropriate customs officer ... as to ****** (4) The exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appeala-ble under section 1337 of this title ****** shall be final and conclusive ... unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest is commenced in the" }, { "docid": "20409270", "title": "", "text": "Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006). From those facts, the court must glean “the true nature of the action.” Norsk Hydro, 472 F.3d at 1355 (internal quotation marks and citation omitted). In deciding a Rule 12(b)(1) motion to dismiss that does not challenge the factual basis for the complainant’s allegations, the court assumes “all factual allegations to be true and draws all reasonable inferences in plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Where, as here, claims depend upon a waiver of sovereign immunity, a jurisdictional statute is to be strictly construed. United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995). A. The Court May Not Exercise Jurisdiction under 28 U.S.C. § 1581(a) Plaintiff asserts jurisdiction under 28 U.S.C. § 1581(a), under which the Court of International Trade has “exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under Section 515 of the Tariff Act of 1930.” Tariff Act of 1930 (“Tariff Act”), § 515, 19 U.S.C. § 1515 (2006). Compl. 1 (“[T]his action challenges, on various grounds, the denial of a protest made pursuant to 19 U.S.C. § 1515 against the assessment of antidumping duties and interest thereon on an entry liquidated by Customs”); PL’s Resp. 4 (“This action is properly before the Court under 28 U.S.C. § 1581(a) to contest the denial of a protest.”). In this case, the court could exercise jurisdiction under § 1581(a) only were Celta contesting the denial of a valid protest of a decision “of the Customs Service.” 19 U.S.C. § 1514(a). Ministerial actions by Customs that do no more than effectuate decisions of Commerce on the assessment of antidumping duties are not pro-testable decisions under 19 U.S.C. § 1514. Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 976-77 (Fed.Cir.1994) (\"Mitsubishi”) (“[T]itle 19 makes clear that Customs does not make any section 1514 antidumping ‘decisions,’ ” as “Customs cannot modify ... [Commerce’s] determinations, their underlying facts, or their enforcement.”). Plaintiff concedes that the assessment of antidumping duties effected" }, { "docid": "3409970", "title": "", "text": "443 (CIT 1983). Pursuant to 28 U.S.C. § 1581(a), this Court “has exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 [the Act].” Codified at 19 U.S.C. § 1515(a) (1994), section 515(a) of the Act provides, “the appropriate customs officer, within two years from the date a protest was filed in accordance with section 1514 of this title, shall review that protest and shall allow or deny such protest in whole or in part.” Section 1514(a) states a final decision of the Customs Service including “the liquidation or reliquidation of an entry ... shall be final and conclusive upon all persons ... unless a protest is filed in accordance with this section [1514(a) ].” 19 U.S.C. § 1514(a) (1994). Defendant argues this Court lacks subject matter jurisdiction in this matter because plaintiff failed to file a section 1514 protest against Customs’ reliquidation of the Cypres entries at issue in this case. This Court agrees. This Court repeatedly has interpreted the statute establishing subject matter jurisdiction in this Court, 28 U.S.C. § 1581(a), to require a party protest Customs’ reliquidation of entries “as a prerequisite to seeking judicial review of the reliquidation.” Mitsubishi, 865 F.Supp. at 880; see also Novell, 985 F.Supp. at 123; Transflock, 765 F.Supp. at 751. Under this Court’s precedent , it is well-established that a “ ‘[rjeliquidation vacates and is substituted for the collector’s original liquidation.’ ” Mitsubishi, 865 F.Supp. at 879 (quoting Parkhurst, 12 Ct. Cust.App. at 373). Therefore, if a party fails to protest a reliquidation by Customs within ninety days of the reliquidation, the reliquidation becomes final and is not subject to judicial review by this Court. See id. 879-80 (citing 19 U.S.C. §§ 1514(a) and (c)(2)(A)); see also Transflock, 765 F.Supp. at 751. Because this Court finds “plaintiff has not shown this action is unusual or unique or advanced any other reason for the Court to dispense with the statutory requirement [under 19 U.S.C. § 1514],” this Court does not have subject matter jurisdiction" }, { "docid": "22126466", "title": "", "text": "claim on which relief can be granted. The Court of International Trade granted the United States’ motion under rule 12(b)(1). Shinyei timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). This opinion follows the court’s review of the record and consideration of the parties’ oral argument, heard on December 5, 2003. II. ANALYSIS A. Subject Matter Jurisdiction in the Court of International Trade As discussed in greater detail below, see infra Section II.B, Shinyei’s cause of action is based in the Administrative Procedure Act (“APA”) pursuant to 5 U.S.C. § 702. It is well established that the APA “does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.” Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The APA is not a jurisdictional statute and “does not give an independent basis for finding jurisdiction in the Court of International Trade.” Am. Air Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1552 (Fed.Cir.1983). Thus, the Court of International Trade must have its own independent basis for jurisdiction under 28 U.S.C. § 1581 for Shinyei’s case to proceed before that court. Of the eight specific jurisdictional grants in section 1581, sections 1581(a) and (c) arguably apply. Section 1581(a) provides the Court of International Trade exclusive jurisdiction over civil actions commenced to contest the denial of a protest under section 515 of the Tariff Act of 1930. 28 U.S.C. § 1581(i)(a) (2000). Section 515 of the Tariff Act provides for the administrative review of protests filed under section 514 of the Tariff Act, which in turn provides for protests of decisions of Customs. 19 U.S.C. §§ 1514, 1515 (2000). Because the alleged agency error in the present case is on the part of Commerce, and not Customs, sections 514 and 515 do not apply. Accordingly, section 1581(a) cannot vest the Court of International Trade with jurisdiction over the case at bar. Similarly, section 1581(c) does not provide the Court of International Trade with jurisdiction. Section 1581(c) provides the court with exclusive jurisdiction over actions commenced under section 516A of" }, { "docid": "13712224", "title": "", "text": "******* (i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) Revenue from imports or tonnage; (2) Tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) Embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) Administration and enforcement with respect to the matters referred to in paragraphs (1)—(3) of this subsection and subsections (a)-(h) of this section. ******* Jurisdiction Under 28 U.S.C. § 1581(a) 28 U.S.C. § 1581(a) grants the Court of International Trade exclusive jurisdiction of any civil action contesting the denial of a protest under section 515 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1515 (Supp. IV 1980). In turn, 19 U.S.C. § 1515 provides for the allowance or denial of protests filed pursuant to section 514 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514 (Supp. IV 1980). This statutory scheme indicates that the court has jurisdiction of this action under 28 U.S.C. § 1581(a) only if the rejection of plaintiffs substitute entry documents was a protestable decision under 19 U.S.C. § 1514. Plaintiff Claims that the rejection of its entry documents was protestable under section 1514(aX4) which allows importers to protest decisions by customs officers as to: (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, expect a determination appealable under section 1337 of this title; Plaintiff alleges that its aircraft was excluded from entry by the district director’s rejection of the substitute entry documents on May 7, 1981. It asserts that the rejection of the substitute entry documents is" }, { "docid": "13424384", "title": "", "text": "the NAFTA claim would be denied. Defendant’s Memorandum at 2-3 and Exh. E, Letter from Import Specialist Jorge Salazar to Poder Uno of 1/18/96. When the requested documentation was not received, Customs issued a written determination on February 20,1996 that the wire harnesses did not qualify as originating goods under NAFTA. Defendant’s Memorandum at 3, 10 and Exh. F, Notice of Action. On November 21, 1996, Customs issued a written determination to the same effect in regard to the transformers and power supplies. Defendant’s Memorandum at 3 and Exh. G. On February 18,1997, Customs issued a formal Notice of Action denying the Plaintiffs’ §1520(d) petition because the goods “do not qualify as originating under the terms of NAFTA.” Compl. para. 11 and Exh. 1 — 1; Answer at para. 11. Ill Discussion A The Court Lacks Jurisdiction Over This Matter Under 28 U.S.C. §1581(a) Because Plaintiffs Failed to File a Protest Against the Negative Origin Determinations Issued by Commerce and the Denial of Their §1520(d) Petition Pursuant to 19 U.S.C. §1514. Pursuant to 28 U.S.C. §1581(a) (1994), this Court shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. Defendant argues that this Court lacks jurisdiction over this matter under 28 U.S.C. §1581(a) because no timely §1514 protest was filed against either the initial negative origin determinations or the subsequent denial of Power One’s §1520(d) Petition. Protests can only be filed in regard to final decisions of Customs. Section 1514(a) states what decisions are final. The Government argues that denial of the post-entry NAFTA refund claim (§1520(d) petition) is a final Customs decision as to “classification, rate, and amount of duties chargeable,” as listed in §1514(a)(2). Therefore, that petition denial is a protestable decision under §1514(a). This means that a §1514 protest, and a denial of that protest under §1515, must occur prior to the filing of suit in order for this Court to have jurisdiction under §1581(a). 1 Customs’ Treatment of Plaintiffs’ Petition Did Not Make it A Protest." }, { "docid": "13424397", "title": "", "text": "Wright & Arthur R. Miller, Federal Practice and Procedure §1350 (2d ed. 1990). Therefore, the allegations in Plaintiffs’ Complaint are not controlling, and only uncontroverted factual allegations are accepted as true for purposes of the USCIT R. 12(b)(1) portions of this Motion To Dismiss. All other facts underlying the controverted jurisdictional allegations are in dispute and are subject to fact-finding by this Court. Section 1520(d) permits the reliquidation of an entry to refund any excess duties paid on goods qualifying under the rules of origin set out in 19 U.S.C. § 3332 for which no claim for preferential tariff treatment was made at the time of importation, if the importer, within one year after the date of importation, files a claim, notwithstanding the fact that a valid protest was not filed. At oral argument, the parties argued whether §1520(d) petition denials were final, and therefore protestable, under §1514. The wording of §1514(a) is somewhat unclear on this point. This lack of clarify leads to confiision regarding jurisdiction under §1581(a). If the denials are not protestable, they cannot come to this Court under §1581(a). A cursoiy brief reading of §1514 might indicate that a §1520(d) petition denial is not a protestable final decision of Customs. If so, such denials could not be reviewed here under §1581(a), because under that section, only Customs decisions which have been protested, and those protests denied may be reviewed by this Court. Under this line of reasoning, §1520(d) petitions could only be reviewed under the residual jurisdiction clause §1581(i). The confusion arises from the first clause of §1514(a), which states that, “Except as provided in * * * section 1520 [and other sections] of this title” Customs decisions in a list of areas are “final and conclusive.” The finality of the decision gives rise to its protestability under §1514(c). At first glance it may appeal* that denial of petitions filed under §1520(d) are not final and conclusive, and therefore not protestable. If they cannot be and are not protested, then this Court cannot entertain claims based upon the denial of the petitions under §1581(a). Some case" }, { "docid": "20409277", "title": "", "text": "“ ‘any clerical error, mistake of fact, or other inadvertence’ pertaining to the enumerated categories in § 1514(a)(l)-(7) that is adverse to the importer.” Pl.’s Resp. 8-9 (quoting 19 U.S.C. § 1514(a)). Plaintiff posits that because the statute was amended to include within the protest procedures clerical errors and mistakes of fact, the 1994 decision of the Court of Appeals in Mitsubishi may no longer be good law. Id. at 9. This argument is meritless. Prior to the 1994 amendment, the Tariff Act, in Section 520(c), provided a separate procedure by which an importer could obtain relief from “a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law.” See Tariff Act, § 520(c)(1), 19 U.S.C. § 1520(c)(1) (2000). The 2004 amendment repealed Section 520(c), folded the procedure of that section into the protest procedure of Section 514 of the Tariff Act, and dispensed with the requirement that the error or inadvertence not amount to an error in the construction of a law. 19 U.S.C. § 1514(a). Nothing in the changes brought about by the 2004 amendment to the Tariff Act indicates a congressional intent to allow an importer to challenge, through the protest procedure, liquidation instructions issued by Commerce under the antidumping laws. In arguing for jurisdiction under 28 U.S.C. § 1581(a), plaintiff also cites Shinyei Corp. of Am. v. United States, 524 F.3d 1274, 1277 (2008) (“Shinyei II”), in which the Court of Appeals stated that “[a]n importer who believes that Customs has erred in liquidating the importer’s entries (for example, by collecting higher duties than were actually due) may file an administrative protest with Customs after liquidation ... [and] [i]f Customs denies the protest, the importer may contest the denial in the Court of International Trade.” Plaintiffs reliance on Shinyei II is unavailing. As the opinion in that case makes clear, an importer may resort to the protest procedure when Customs has erred in carrying out liquidation instructions issued by Commerce. According to the facts Celta has pled, the alleged error was made by Commerce, not Customs. Additionally," }, { "docid": "13424385", "title": "", "text": "§1581(a) (1994), this Court shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. Defendant argues that this Court lacks jurisdiction over this matter under 28 U.S.C. §1581(a) because no timely §1514 protest was filed against either the initial negative origin determinations or the subsequent denial of Power One’s §1520(d) Petition. Protests can only be filed in regard to final decisions of Customs. Section 1514(a) states what decisions are final. The Government argues that denial of the post-entry NAFTA refund claim (§1520(d) petition) is a final Customs decision as to “classification, rate, and amount of duties chargeable,” as listed in §1514(a)(2). Therefore, that petition denial is a protestable decision under §1514(a). This means that a §1514 protest, and a denial of that protest under §1515, must occur prior to the filing of suit in order for this Court to have jurisdiction under §1581(a). 1 Customs’ Treatment of Plaintiffs’ Petition Did Not Make it A Protest. Plaintiffs argue that this Court has jurisdiction under 28 U.S.C. §1581(a) because Customs considered their NAFTA claim to be a protest, so therefore a protest was indeed filed and denied. Plaintiffs’ Opposition at 6 and 10-12. Plaintiffs maintain that they did not file a protest. Transcript of Oral Argument at 22-23; Plaintiffs’ Opposition Exh. 1-1. However, Plaintiffs argue that the contemporaneous written evidence clearly shows that Nogales Customs considered Power One’s NAFTA claim to be a protest because (1) Customs assigned a protest number to the claim and (2) Customs’ Automated Commercial System database states that the entries covered by the claim were in the protest denial stage. Plaintiffs’ Opposition at 10. Plaintiffs explain that Customs’ denial of their NAFTA refund claim, found in the document attached as Exhibit H to Defendant’s Memorandum, constitutes the requisite protest denial because Customs considered the petition to be a protest. Plaintiffs’ Opposition at 11. Plaintiffs provide no legal authority to support this argument. Defendant addresses Plaintiffs arguments with regard to the protest number and Customs’ Automated Commercial System" }, { "docid": "22332352", "title": "", "text": "Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title; (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under section 1520(e) of this title; shall be final and conclusive upon all persons ... unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade.... 19 U.S.C. § 1514(a). Section 1581(a) provides no jurisdiction for protests outside these exclusive categories. Playhouse Import & Export, Inc. v. United States, 843 F.Supp. 716, 719 (Ct. Int’l Trade 1994). MELA’s suit falls outside the section 1514(a) categories. Section 1514(a) applies exclusively to Customs “decisions” within the enumerated categories. Section 1514(a) expressly refers to “decisions of the Customs Service.” Section 1514(a) does not embrace decisions by other agencies. The actions that MELA challenges, however, are not Customs decisions. Commerce, not Customs, calculates antidumping duties. The Trade Agreements Act of 1979 (1979 Act) transferred administration of the antidumping laws from the United States Treasury Department to Commerce. Pub.L. No. 96-39, § 101, 93 Stat. 144,169-70 (1979). Under the present antidumping law, Commerce calculates and determines antidump-ing rates. 19 U.S.C. § 1675 (1988 & Supp. V 1993). Commerce conducts the antidumping duty investigation, calculates the antidump-ing margin, and issues the antidumping duty order. Commerce then directs Customs to collect the estimated duties. See 19 U.S.C. § 1673e(a)(l) (1990). The 1979 Act amended 19 U.S.C. § 1514(a) and (b) to exclude antidumping determinations from the list of matters that parties may protest to Customs. As part of its administration of the antidumping laws under the Trade and Tariff Act of 1984 (1984 Act), Commerce conducts reviews of duty orders when requested. Pub.L. No. 98-573, 98 Stat. 2948 (1984); Nichimen," }, { "docid": "20409276", "title": "", "text": "United States, 27 CIT 1688, 1692-93, 297 F.Supp.2d 1333, 1339 (2003)). This contention is a misstatement of the law and a misreading of the applicable precedent. It is well established that judicial review of liquidation instructions issued by Commerce may be had in this Court, pursuant to this Court’s residual jurisdiction, as granted by 28 U.S.C. § 1581(i). See Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304-05, 1309 (Fed.Cir.2004) (concluding that § 1581(i) jurisdiction is available for plaintiff “seeking a writ of mandamus ordering liquidation of its entries at the rate it thought it was entitled to”); Consol. Bearings Co., 348 F.3d at 1002 (“[A]n action challenging Commerce’s liquidation instructions is not a challenge to the final results, but a challenge to the ‘administration and enforcement’ of those final results .... Thus, ... [sjection 1581(i)(4) grants jurisdiction to such an action.”). Next, plaintiff grounds a jurisdictional argument in the 2004 amendment to 19 U.S.C. § 1514(a), which, in plaintiffs view, expanded the scope of protestable Customs decisions to include non-substantive determinations, including “ ‘any clerical error, mistake of fact, or other inadvertence’ pertaining to the enumerated categories in § 1514(a)(l)-(7) that is adverse to the importer.” Pl.’s Resp. 8-9 (quoting 19 U.S.C. § 1514(a)). Plaintiff posits that because the statute was amended to include within the protest procedures clerical errors and mistakes of fact, the 1994 decision of the Court of Appeals in Mitsubishi may no longer be good law. Id. at 9. This argument is meritless. Prior to the 1994 amendment, the Tariff Act, in Section 520(c), provided a separate procedure by which an importer could obtain relief from “a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law.” See Tariff Act, § 520(c)(1), 19 U.S.C. § 1520(c)(1) (2000). The 2004 amendment repealed Section 520(c), folded the procedure of that section into the protest procedure of Section 514 of the Tariff Act, and dispensed with the requirement that the error or inadvertence not amount to an error in the construction of a law. 19 U.S.C. §" }, { "docid": "16634600", "title": "", "text": "the denial of the protest. Nissan, 12 CIT at 743-44, 693 F. Supp. at 1188-89. 28 U.S.C. § 1581(a) (1988) provides that “The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of aprotest, in wholeorin part, under section 515 ofthe TariffActof1930.” Section515 of the Tariff Act, as amended by 19 U.S.C. § 1515 (1988), provides for the review of protests by Customs and the rights of the protesting party to file a civil action contesting the denial of the protest under 19 U.S.C. § 1514. Section 1514(a) provides in pertinent part that: Except as provided [at certain sections of this title], decisions of the appropriate customs officer, including the legality of all orders and findings entering into the same, as to- il) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title; (5) the liquidation or reliquidation of an entry, or any modification thereof; (6) the refusal to pay a claim for drawback; and (7) the refusal to reliquidate an entry under section 1520(c) of this title, shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade. * * * 19 U.S.C. § 1514(a) (1988) (emphasis added). In the case of Plaintiff Citgo, such assessments and liquidations have apparently already occurred. 28 U.S.C. § 1581(h) (1988) (emphasis added) provides, in part, as follows: The Court of International Trade [has] exclusive jurisdiction of any civil action commenced to review,prior to importation of the goods involved, a ruling issued by the Secretary of the Treasury," }, { "docid": "22259775", "title": "", "text": "address the merits of the deemed liquidation claim in Protest 3. I. A. The jurisdictional scheme The jurisdiction of the Court of International Trade is set forth in 28 U.S.C. § 1581. The two provisions of the statute that are relevant to this case are sections 1581(a) and 1581(i). Under section 1581(a), the Court of International Trade has “exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.” Section 515 is codified at 19 U.S.C. § 1515. Section 1515 provides for Customs’ review and subsequent allowance or denial of protests that are “filed in accordance with” 19 U.S.C. § 1514. 19 U.S.C. § 1515(a). Section 1514(a) lists the decisions of Customs that' may be the subject of protests. Included are decisions relating to “the liquidation or reliquidation of an entry.” 19 U.S.C. § 1514(a)(5). Section 1514(a) states that a Customs decision that may be the subject of a protest shall be “final and conclusive upon all persons ... unless a protest is filed in accordance with this section.” The time for filing .a protest of a decision described in section 1514(a) is “within ninety days after notice of liquidation.” 19 U.S.C. § 1514(c)(3). We have held that the Court of International Trade’s authority to hear a claim under section 1581(a) depends upon the importer raising the claim in a valid protest filed with Customs within the prescribed 90-day period, or alternatively, in a protest coming within an exception that excuses a failure to meet the deadline. See Juice Farms, Inc. v. United States, 68 F.3d 1344, 1345-46 (Fed.Cir.1995). Section 1581(i) provides in pertinent part as follows: In addition to the jurisdiction conferred upon the Court of International Trade by subsection ... (a) of this section ..., the Court of International Trade shall ■ have exclusive jurisdiction of any civil action commenced against the United States ... that arises out of any law of the United States providing for ... ad- - ministration and enforcement with respect to the matters referred to in" }, { "docid": "3409969", "title": "", "text": "the means for judicial review. Also, citing Novell, Inc. v. United States, 985 F.Supp. 121, 123 (CIT 1997), plaintiff argues Transflock and Mitsubishi do not control because Novell held the statutory justification for denial of jurisdiction for failure to protest a reliquidation was limited to situations in which Customs reliqui-dated the entries under an alternative classification offered by the importer in its protest of the original liquidation. Plaintiff contends where the relief requested by the importer in a protest is not granted and the shipment is reliquidated under a wholly different tariff heading, as in this case, the relief that the importer requested is clearly denied and jurisdiction in this Court is appropriate under 28 U.S.C. § 1581(a) because Customs’ reliquidation did not alter or affect the denial of plaintiffs protest. SSK argues this Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1581(a). DISCUSSION When a defendant challenges the Court’s jurisdiction, the plaintiff has the burden of demonstrating that jurisdiction exists. See Lowa, Ltd. v. United States, 561 F.Supp. 441, 443 (CIT 1983). Pursuant to 28 U.S.C. § 1581(a), this Court “has exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 [the Act].” Codified at 19 U.S.C. § 1515(a) (1994), section 515(a) of the Act provides, “the appropriate customs officer, within two years from the date a protest was filed in accordance with section 1514 of this title, shall review that protest and shall allow or deny such protest in whole or in part.” Section 1514(a) states a final decision of the Customs Service including “the liquidation or reliquidation of an entry ... shall be final and conclusive upon all persons ... unless a protest is filed in accordance with this section [1514(a) ].” 19 U.S.C. § 1514(a) (1994). Defendant argues this Court lacks subject matter jurisdiction in this matter because plaintiff failed to file a section 1514 protest against Customs’ reliquidation of the Cypres entries at issue in this case. This Court agrees. This Court" }, { "docid": "22126467", "title": "", "text": "own independent basis for jurisdiction under 28 U.S.C. § 1581 for Shinyei’s case to proceed before that court. Of the eight specific jurisdictional grants in section 1581, sections 1581(a) and (c) arguably apply. Section 1581(a) provides the Court of International Trade exclusive jurisdiction over civil actions commenced to contest the denial of a protest under section 515 of the Tariff Act of 1930. 28 U.S.C. § 1581(i)(a) (2000). Section 515 of the Tariff Act provides for the administrative review of protests filed under section 514 of the Tariff Act, which in turn provides for protests of decisions of Customs. 19 U.S.C. §§ 1514, 1515 (2000). Because the alleged agency error in the present case is on the part of Commerce, and not Customs, sections 514 and 515 do not apply. Accordingly, section 1581(a) cannot vest the Court of International Trade with jurisdiction over the case at bar. Similarly, section 1581(c) does not provide the Court of International Trade with jurisdiction. Section 1581(c) provides the court with exclusive jurisdiction over actions commenced under section 516A of the Tariff Act. 28 U.S.C. § 1581(c) (2000). Section 516A provides for judicial review in countervailing duty and antidumping duty proceedings, but specifically enumerates “reviewable determinations” under that section. 19 U.S.C. § 1516a(a)(2)(B) (2000). As will be discussed in greater detail below, see infra Section II.B.l, the determinations enumerated in section 516A(a)(2)(B) do not include the Commerce instructions challenged by Shinyei in this action. In cases where the specific jurisdictional grants of section 1581(a)-(h) do not apply, section 1581 also contains a residual jurisdictional provision, which reads: (i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other" }, { "docid": "13424394", "title": "", "text": "at issue. Oral argument transcript at p. 24. Therefore this portion of the Government’s Motion to Dismiss is moot. IV Conclusion This Court lacks subject matter jurisdiction to hear this case. No §1581(a) jurisdiction exists because the prerequisite of a protest denial has not been met. There is no jurisdiction under §1581(i) because there could have been jurisdiction under §1581(a), had the proper procedures for invoking that jurisdiction been followed. Therefore, Defendant’s Motion to Dismiss for lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be granted is granted. 19 C.F.R. § 174.12(e) (1999) governs the time period for filing a protest. 19 C.F.R. §174.12(e)(2) provides that a timely protest must be made within 90 days after “the date of written notice of a denial of a claim filed under [19 U.S.C. §1520(d)].” 19 U.S.C. §1514(a) (1994) lists, inter alia, which decisions of the Customs Service are deemed final unless a protest is filed or a civil action contesting the denial of a protest is filed in this Court. 19 U.S.C. §1514(c)(2)(A) (1994) sets forth that the importers or consignees shown on the entry papers or their sureties, may file a protest with respect to merchandise which is the subject of a decision specified in 19 U.S.C. §1514(a). 19 U.S.C. §1514(c)(2)(E) (1994) provides that any exporter or producer of merchandise subject to a determination of origin under 19 U.S.C. § 3332 may file a protest if the exporter or producer completed and signed a NAFTA Certificate of Origin covering the merchandise. 19 C.F.R. §181.75 (1999) governs the issuance of an origin determination. 19 C.F.R. §181.76 (1999) governs the application of origin determinations. Although the dispositive motions indicate that 335 entries are at issue, Plaintiffs’ Opposition at 3; Defendant’s Memorandum at 1, Defendant submitted to the Court on August 3,1999 the declaration of Ms. Choy which states that only 315 entries are at issue. Plaintiffs filed a subsequent declaration of Ms. Ross stating that only 314 entries were at issue. The specific number of entries is of no consequence in this decision. Section 515" } ]

[ { "docid": "15509193", "title": "", "text": "Mr. Justice CLARK: Petitioner, The University of Chicago, seeks review of an NLRB order, which found that it violated Section 8(d) and derivatively Sections 8(a)(1), 8(a)(2), and 8(a)(5) of the Act when, during the term of a collective bargaining agreement, the University transferred custodial work from one bargaining unit (Local 321) to another (Local 1657) after bargaining to impasse over the transfer. Bottoming its decision on the lengthy opinion of the Administrative Law Judge, the NLRB held that the practice of the University in allocating cleaning areas between the two locals “was an inextricable, albeit inexplicit, part of the bargaining history that led up to the University’s contract with Local 321 and was necessarily embodied in the contract’s recognition clause,” and concluded that the workplace assignment customarily performed by Local 321 could not be reassigned to be performed at the same location by the University’s own employees represented by a different union. We can find no support for this novel theory either in the “bargaining history” of this case or in any legal precedents. In our view, the effort of the Board to thus read a jurisdictional guarantee into a recognition clause seriously impinges upon the fundamental rights of management and requires reversal. The Board, as well as the Administrative Law Judge, appears to have totally ignored the real grounds on which the University predicated the transfer and has stretched to discredit the employer’s decision by ascribing the work transfer to a mere desire to cut down pay rates. We are therefore obliged to trace the history of this controversy in a more detailed manner than would otherwise be necessary. I. The University of Chicago is a private university whose 8,000 students matriculate in either professional schools or academic divisions. This case involves the Biological Sciences Division (hereafter the “BSD”) organizationally the largest academic division. The BSD is comprised of both nonclinical academic departments, such as Botany and Zoology, and clinical departments, such as Surgery and Medicine, where students seeking an M. D. degree receive most of their instruction, since the University has no separate, formal “medical school”. The BSD" } ]

[ { "docid": "10051916", "title": "", "text": "at the end of their shifts on March 28,1997 and converted the theaters to manager-operated. C. The Board’s Decision and Order As a result of the foregoing events, the three Locals filed unfair labor practice charges against Regal. After investigating the claims, the Board’s General Counsel issued separate complaints against Regal, which were subsequently consolidated for hearing and decision. After a hearing on the consolidated complaint, an Administrative Law Judge (ALJ) concluded that Regal violated sections 8(a)(1) and 8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(1), (a)(5), by refusing to bargain with the Locals before converting to manager-operated theaters and terminating the union-represented projectionists. JDA 20. Rejecting Regal’s arguments under First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981), and Dubuque Packing Co., 303 N.L.R.B. 386, 1991 WL 146795 (1991), the ALJ held that Regal had a duty to bargain under Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), and Torrington Industries, Inc., 307 N.L.R.B. 809, 1992 WL 127799 (1992). JDA 16-17. Applying a waiver analysis, the ALJ also rejected Regal’s argument that the management rights clause authorized Regal to convert to manager-operated theaters without first bargaining to impasse. JDA 17-19. Lastly, the ALJ rejected Regal’s argument that Local 364 failed to timely demand bargaining over Regal’s conversion decision. JDA 19. The ALJ then ordered Regal, among other remedies, to reinstate the terminated projectionists to their former or substantially equivalent positions. JDA 20. The Board adopted the ALJ’s rulings, findings and conclusions in its June 20, 2001 decision and order. JDA 9. Adopting the ALJ’s conclusion that Regal violated sections 8(a)(1) and 8(a)(5) of the NLRA by refusing to bargain over its conversion decision, the Board emphasized the ALJ’s finding that “the reclassification or transfer of bargaining unit work to managers or supervisors is a mandatory subject of bargaining where it has an impact on unit work” and stated that Regal “both transferred unit work to existing managers and also hired new assistant managers to perform [that work.]” JDA 9. With respect to the management" }, { "docid": "15509207", "title": "", "text": "such a finding. The Administrative Law Judge treats certain language in the contract, i. e. the addition on May 7, 1971, of “Janitors in the Biological Science Division” to the enumeration of classifications and departments covered in the recognition clause, as if it were a jurisdictional clause, prohibiting the transfer of work. We fail to understand how such language can be so interpreted. The Board concedes in its brief that the addition to this clause was intended, in the Board’s own words, “solely to insulate these BSD employees from their imminent job loss and bumping due to a layoff in the Plant Department.” The recognition clause itself has appeared in successive agreements for 23 years, and no such claim was ever made despite many transfers of work from Local 321 as well as Local 1657. To support its position, the Board contends that there was an agreement “to assign specific work to a specific group of employees for the duration of the collective bargaining agreement, as shown by the bargaining history.” (Emphasis supplied) But, as we read the record, the “bargaining history” is barren of a single word of evidence that demonstrates that either party mentioned or even indicated that the enumeration of classifications and departments was made in order to confer jurisdictional rights on Local 321 or to designate permanent areas to which work would be assigned to Local 321 custodians. The only “bargaining history”' to which the Board can refer is to past practice and that can hardly be elevated into jurisdictional rights. In fact, even past practice did not give “the job of cleaning of all non-patient care areas” in the buildings involved to Local 321 custodians. At least half of the non-patient areas have been cleaned by Local 1657 custodians. The record clearly shows no definite line of demarcation. With the exception of one building that was cleaned by five of the nineteen Local 321 custodians, no structure within the hospital — academic complex was ever cleaned solely by the custodians of either union. In fact there was no clearly defined past practice. Even if Local" }, { "docid": "23646780", "title": "", "text": "Deldewa & Sons, Inc., 282 N.L.R.B. 1375, 1378, 1987 WL 90249 (1987), enf'd sub nom. International Ass’n of Bridge, Structural & Ornamental Iron Workers v. NLRB, 843 F.2d 770 (3d Cir.1988). Under pre-Deklewa case law, a § 8(f) relationship converted into a § 9(a) relationship merely upon a showing that the signatory union enjoyed majority support during a relevant period among an appropriate unit of the signatory employer's employees. See id. \"[U]pon conversion, an employer [was] ‘under the statutory duty to recognize and bargain with the union as the employees’ exclusive representative.’ ” Id. at 1379. Finding several flaws in the conversion doctrine, including its failure to foster industry stability or advance the objective of employee free choice, the Board in Deklewa rejected the doctrine, see id. at 1380-84, and held that parties to an 8(f) agreement are required to comply with that agreement until it expires unless employees vote to reject or change the bargaining representative. See id. at 1385. Accordingly, neither employers nor unions are free to unilaterally repudiate such an agreement for the life of the agreement but may only do so upon its expiration. See id. at 1385-86. . We note that the 1995 collective bargaining agreement contains a substantially identical recognition clause as the 1992 agreement. The later agreement differs in that it explicitly states that \"the Union has demanded recognition from the Employer as the exclusive bargaining representative ... under Section 9(a) ... and has submitted proof thereof in the form of signed and dated authorization cards.” App., Vol. XI at 162A. . Article II, § 13 of the 1992 and the 1995 agreements states in full: The Employer hereby agrees that all of its members, both collectively and individually, shall be bound by this Agreement, just as surely as if each and every member signed it and whether or not each does so individually and whether or not membership is retained in the Employer Association party to this Agreement. The Employer, as an Association, through its duly elected officers and representatives hereby declares and affirms that each and every member has so agreed" }, { "docid": "2439374", "title": "", "text": "restrictive unit clause constitutes a deviation from the longstanding jurisdiction-unit description as recognized by the parties. nevertheless the ALJ concluded that the practical effect of the change was to delimit the unit more carefully, consistent with the realities of the working relationship, and that NPC’s insistence on the clause was not unlawful conduct. (R. 2062-63). The Board essentially adopted the subsidiary findings of the ALJ but made different ultimate findings and conclusions that violations of the Act had occurred. This was within the Board’s prerogative, for it is well established that it is the Board’s duty to make the final determination as to whether an unfair labor practice has occurred. M.S.P. Industries, Inc. v. N.L.R.B., 568 F.2d 166, 177 (10th Cir.); Groendyke Transport, Inc. v. N.L.R.B., 530 F.2d 137, 139 (10th Cir.). We cannot say that the Board erred in finding that the proposed language modified the existing unit description. We cannot find support in the cases for NPC’s conduct in insisting to impasse on altering the existing contractual unit description. Insistence on a modification in the scope of the bargaining unit, whether established by Board certification or voluntary recognition, is an unfair labor practice in violation of § 8(a)(5) of the Act. Newport News Shipbuilding & Dry Dock Co. v. N.L.R.B., 602 F.2d 73, 76 (4th Cir.); Hess Oil & Chemical Corp. v. N.L.R.B., 415 F.2d 440, 445 (5th Cir.), cert. denied, 397 U.S. 916, 90 S.Ct. 920, 25 L.Ed.2d 97; accord, Douds v. International Longshoremen’s Association, 241 F.2d 278, 282-83 (2d Cir.). The reason is that § 8(a)(5) makes it an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees and § 9(a) obligates the employer to recognize the union as the exclusive representative of all the employees in the appropriate unit. Newport News, supra at 76. See also, N.L.R.B. v. Southland Cork Co., 342 F.2d 702, 706 (4th Cir.). Accordingly, it has been said that “there [can] be no genuine bargaining as contemplated by the Statute until complete recognition [has] been granted as the Act requires,” McQuay-Norris Mig. Co." }, { "docid": "9704279", "title": "", "text": "members of the bargaining unit.”), cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964); In re Bituminous Coal, 756 F.2d at 289 (“A union standards clause is designed to inhibit subcontracting of work that would otherwise be performed by members of the bargaining unit.”); Associated General Contractors, 280 N.L.R.B. 698, 701-02 (“[Contractual clauses with a primary purpose serving the general institutional interest of the union in organizing or regulating the labor policies of employers with whom the union does not have a collective bargaining relationship are unlawful under Section 8(e) because ... they are not aimed at preserving either the work or the employment standards of unit employees.”) (emphasis added). D. Local No. 3 argues that even if off-site hauling is not found to be work “traditionally or customarily” performed by the members of the bargaining units, the work in question is still “fairly claimable,” i.e., work that requires the same skills and abilities as the traditional work of the unit employees. Under this doctrine, which has not yet been adopted in this circuit, where the employees have not actually done the work in dispute but where it is of the same type as their traditional work, a clause that would cover it may be upheld as a valid work preservation agreement. See Frito-Lay, Inc. v. Retail Clerks Local 7, 629 F.2d 653, 660 (10th Cir.1980). The National Labor Relations Board has recognized the validity of this doctrine as a means of validating clauses that seek to recognize work regarded as fairly claimable. Teamsters Local Union No. 89, 254 N.L.R.B. 783, 786 (1981), aff'd sub nom. N.L.R.B. v. General Drivers, 684 F.2d 359 (6th Cir.1982). We are unable to address this argument. The district court did not consider it, and the record is insufficient for us to tell whether it applies to this case. On remand, the parties shall have another opportunity to address this issue, assuming they wish to do so. REVERSED and REMANDED for further proceedings consistent with this opinion. . Section 8(e) makes it an unfair labor practice for any labor organization and any" }, { "docid": "14429124", "title": "", "text": "to such membership. A second feature of this case supports our conclusion. In enacting § 9(b)(3), Congress was also concerned about possible coercion of the employers into collective bargaining agreements. Clearly, no employer can be compelled to recognize and bargain with a mixed guard unit. This concern, however, is not implicated when an employer voluntarily enters into an agreement, as is the case here. The Board has stated: Although the Board does not prohibit employers from voluntarily recognizing [guard-nonguard] labor organizations to represent units of guard employees, or even mixed units, we will not permit the Board’s processes to be utilized in furtherance of that end. Brink’s, Inc., 272 N.L.R.B. 868, 870 (1985). The collective bargaining agreement at issue had seven months of life left. Our examination of Board opinions shows that the Board has upheld the employers’ withdrawal of recognition from the union on § 9(b)(3) grounds only in cases where the collective bargaining agreement had expired. Indeed, the Board has specified that it has not addressed the issue of § 9(b)(3)’s proscriptions to an extant contract. See, e.g., Brink’s Inc., at 870 n. 7 (“[W]e note that in Wells Fargo Corp., 270 NLRB 787 fn. 4 (1984), we found it unnecessary to pass on whether a respondent would have been privileged to withdraw recognition within the contract term. We similarly find it unnecessary to pass on that issue in the instant case.”) The Second Circuit has explicitly ruled on this issue. In Truck Drivers Local Union No. 807 v. N.L.R.B., 755 F.2d 5 (2d Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 225 (1985), it held that an employer who voluntarily recognizes a guard-non-guard union may not discontinue the relationship during the existing contractual period. Id. at 10. Both PRMMI and the union argue that the guards are not covered by the collective bargaining agreement because the guard-nonguard unit is not explicitly included in the agreement. The record establishes, however, that PRMMI voluntarily recognized appellees as members of Local 1575 and that both PRMMI and the union treated the guards as covered by the extant" }, { "docid": "3523468", "title": "", "text": "8(a) (5). And this is so, even though the employer may have desired to reach an overall agreement. N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230; N.L.R.B. v. United Nuclear Corporation, 381 F.2d 972 (10th Cir.). Unilateral action in matters of this kind can be justified only after the parties have bargained in fact to an impasse. N.L.R.B. v. United Nuclear Corporation, supra. The most then that can be said for respondent’s position is that the unilateral wage changes were instituted after the point of impasse had been reached. Respondent insists that they were so instituted. The Board found to the contrary. And we quite agree. The wage changes were instituted during purported negotiations concerning that very subject. And if respondent was not bargaining in fact, it was not bargaining in good faith. And the violation is clearly manifest. The Board found that respondent contracted bargaining unit work to a third party from April to June, 1967, without notice to or bargaining with the union concerning the work in violation of Section 8(a) (5) and (1). The Order is apparently based on the hypothesis that unilateral contracting out of any work is an 8(a) (5) violation. We cannot accept the hypothesis. It is established that the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions is a mandatory subject of collective bargaining under Section 8(d). Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233. Before Fibreboard but consistently with its rationale, we sustained a Board order based upon a finding that the subcontracting work did effect a displacement of the employees of the bargaining unit in violation of 8(a) (5). N.L.R.B. v. Brown-Dunkin, 287 F.2d 17 (10th Cir.). But we recognized that not every unilateral contracting out is an unfair labor practice per se. • And subsequent cases have prudently balanced the essential managerial prerogatives against the collective bargaining rights of employees by requiring a showing that the unilateral contracting out of work in some way adversely" }, { "docid": "3743462", "title": "", "text": "As the Board recently held in Bricklayers & Masons, No. 3 (Eastern Washington Builders), 162 N.L.R.B. No. 46, 1967 OCH NLRB K 20,990 (1967): [T]he legislative history of Section 8(f) reveals that Congress envisioned its pre-hire provisions as applying only to the situation where the parties were attempting to establish a bargaining relationship for the first time. . The Building and Construction Trades Department, AFL-CIO, in an amicus brief has advanced the thesis that Section 8(b) (7) is not offended merely by picketing to secure an agreement relating to a subject of bargaining between the employer and the recognized union, but only when the picketing organization’s object is the complete displacement of the recognized union. This contention goes beyond that of the Council, and does not appear to be compatible with the clear . purpose of Section 8(b) (7) to prevent any infringement of the recognized union’s representative status. . Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L. Ed.2d 233 (1964). The Board makes clear, however, that it is immaterial to its view of Section 8(b) (7) whether the subject of the proposed agreement is mandatory or permissive, so long as it has a substantial impact upon the interests of the employees. The subcontracting in Fibreboard did not, of course, involve a union signatory clause. . See Truck Drivers Union Local No. 413, etc. v. NLRB, 118 U.S.App.D.C. 149, 158, 334 F.2d 539, 548, cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964): “Union-signatory subcontracting clauses are secondary, and therefore within the scope of § 8(e), while union-standards subcontracting clauses are primary as to the contracting employer.” . In this connection, the Board points out that its holding is really a fairly narrow one. Of course, only picketing is prohibited to the Council as a means of obtaining the union signatory contract. Moreover, even picketing is permissible if the coverage of the proposed contract is limited to the type of work which is never performed by the general contractors’ own employees. According to the stipulation of facts, this would include work" }, { "docid": "10051933", "title": "", "text": "on labor cost considerations and involves ‘the same work under similar conditions of employment,’ it is a prototype Fibreboard case regardless of the alleged futility of bargaining.” Id. (quoting Fibreboard, 379 U.S. at 213, 85 S.Ct. at 404). Although the instant case involves a transfer of unit work to managers and assistant managers, and not a transfer of unit work to an outside subcontractor, we find this distinction to be irrelevant. What matters, in our view, is that Regal, like the employer in Rock-Tenn, transferred “ ‘the same work’ ” performed by the union-represented projectionists to its managers and assistant managers “ ‘under similar conditions of employment,’ ” and did so, not because of technological change but, instead, to reduce its labor costs. Id. Given our conclusion that substantial evidence supports the finding that Regal’s conversion to manager-operated theaters resulted in a transfer of bargaining unit work, we find the ALJ’s legal approach, adopted by the Board, to be “reasonably defensible.” Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849. B. The Management Rights Clause Next we address Regal’s argument that the Board erroneously interpreted the management rights clause contained in the collective bargaining agreements between Regal and the Locals. According to Regal, the Board erred in applying a waiver analysis to the management rights clause because the clause arguably covered Regal’s decision to convert to manager-operated theaters. Thus, Regal maintains, the Board should have analyzed the management rights clause under standard contract law principles. This argument fails. Although a union may waive its statutory protection against an employer’s unilateral changes in subjects of mandatory bargaining, we will not infer such a waiver from a general contractual provision unless the waiver is “‘clear and unmistakable.’ ” Honeywell Int’l, Inc. v. NLRB, 253 F.3d 125, 133 (D.C.Cir.2001) (quoting Metro. Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 1477, 75 L.Ed.2d 387 (1983)). In determining whether a union has clearly and unmistakably waived its bargaining rights, we consider the language of the collective bargaining agreement as well as the bargaining history between the parties “when it is" }, { "docid": "20794331", "title": "", "text": "8(b) (7). We have found that there is reasonable cause to believe that the Council’s sole purpose was to secure a subcontractors agreement from Long, and that it did not seek to set up itself or any of its affiliated local unions as the bargaining agent for Long’s employees. This conclusion would seem, at least at first blush, to rule out any notion that the picketing had an organizational or recognitional purpose. The Board, however, asserts that such a reaction is too simplistic, and misconceives the meaning at least of the term “recognition” within the framework of the Act. For, in the Board’s view, the act of seeking from a building trades employer such as Long, an agreement to subcontract only to firms which have entered into collective bargaining agreements with craft unions affiliated with the Council is an act which looks toward or partakes of recognition of the Council by Long with respect to terms and conditions of employment. In support of its position, the Board notes that the decision of the Supreme Court in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964) establishes that stipulations with respect to contracting out of work performed by members of a bargaining unit is a “term and condition of employment” for which collective bargaining is required. The argument continues to the effect that execution of a subcontractors agreement would indeed affect the right of Long’s employees to select their exclusive bargaining agent because, by virtue of the agreement, the Council would have assumed the role of the Long employees’ exclusive collective bargaining representative at least as to one significant and mandatory subject of bargaining (i. e., subcontracting), and because the status of any other bargaining agent subsequently selected by Long’s employees would concomitantly be hampered. The Board attempts to apply the force of judicial precedent to these contentions through the vehicle of Dallas Building and Construction Trades Council v. NLRB, supra. In Dallas, the court had before it a petition for review and a cross petition for enforcement of an Order of the Board" }, { "docid": "15509209", "title": "", "text": "321 custodians had always held identifiable assignments, however, it would not follow that the University is deprived by its past practices alone from transferring the work to others. The contract itself does not so provide nor has any case so held in any court. The Board cites two cases in support of its order denying the University the right to transfer its work, but in our view neither is apposite. The first, Office and Professional Employees Union, Local 425 v. NLRB, 136 U.S.App.D.C. 12, 419 F.2d 314 (1969), focused on the failure of the employer to bargain at all; here, of course, the University admittedly bargained to impasse. The second case, NLRB v. United States Air Conditioning Corp., 302 F.2d 280 (1st Cir. 1962), focused on the presence of clear anti-union animus on the part of the employer; here there is nothing whatsoever in the record to suggest such animus. As we read the cases, unless transfers are specifically prohibited by the bargaining agreement, an employer is free to transfer work out of the bargaining unit if: (1) the employer complies with Fibreboard Paper Products v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), by bargaining in good faith to impasse; and (2) the employer is not motivated by anti-union animus, Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). The Board concedes that the University bargained in good faith with Local 321 in advance of its decision to transfer the work. Furthermore there is no contention and certainly no evidence that the University’s decision to transfer the work was motivated by anti-union animus. It is plain that the sole reason for the decision to transfer the work was the necessity to raise the level of sanitation in the medical-academic complex in keeping with the high standards demanded by the University’s professional staff. Over many years, Local 321 custodians had concededly performed at a lower standard than that desired and admittedly were unable to improve without further training. Local 1657’s personnel, on the other hand, furnished the highest standard of" }, { "docid": "15207021", "title": "", "text": "bargaining “need not be disclosed in the course of contract negotiations unless the bargaining representative first makes a showing that it is specially relevant to the bargaining taking place.” Teleprompter Corp., supra, 570 F.2d at 9 (citing International Woodworkers v. NLRB, 105 U.S.App.D.C. 37, 263 F.2d 483 (1959)). In such cases, a union must do more than merely claim that the data would be helpful in performing its tasks. Id. But if an employer itself puts the information in contention — as by asserting an economic inability to pay an increase in wages where a union seeks profitability data — then the employer must divulge the information. Id. at 9 (citing NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152-53, 76 S.Ct. 753, 100 L.Ed. 1027 (1955)). Neither of the Labor Board decisions at issue here treated the cost data sought by the unions as directly related to a mandatory subject of bargaining and therefore presumptively relevant. For example, the AU wrote in the CL&P case: “I agree with the [employer’s] contention that not all information is presumptively relevant to the bargaining process, and that in areas such as contracting and subcontracting an employer is not obligated to furnish information unless such precise relevance has been established.” The ALJ in the WME-CO decision applied a similar analysis. Rulings of the Board and case law support this conclusion. Following the decision of the Supreme Court in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1965), that contracting out of unit work that results in the extinction of the bargaining unit is a mandatory subject of bargaining, the Labor Board quickly sought to cut off precipitous extension of that ruling to other forms of subcontracting. In Westinghouse Electric Corp., 150 N.L.R.B. 1574 (1965), the Board held that an employer was permitted unilaterally to implement contracting out of work capable of being performed by unit employees when the subcontracting was part of the employer’s usual method of conducting its operations and did not have a significant impact on unit employees’ job interests. Id. at 1576. Subsequent" }, { "docid": "14230130", "title": "", "text": "partially deterring such employer conduct, this clause would at least remove from the employer the temptation of cheap labor through substandard contractors. This is a usual function of a standards clause.... We need not assume that an employer would use such a tactic as here discussed; it is enough that the union could fear it, and seek such a clause to prevent it. Id. at 716. The National Labor Relations Board has likewise found such standards clauses to be proper work-preservation provisions. See Gen. Teamsters Local 386 v. (Construction Materials Trucking), 198 N.L.R.B. 1038, 1038 (1972) (“A union has a legitimate interest in preventing the undermining of the work opportunities and standards of employees in a contractual bargaining unit by subcontractors who do not meet the prevailing wage scales and employee benefits covered by the contract. Thus, its contract with an employer may require the employer, if it subcontracts, to subcontract to another employer who agrees to observe ‘the equivalent of union wages, hours, and the like’ provided for in the bargaining agreement.”). Eisenmann believes that work preservation clauses such as the one now before the court are only valid in the context of Section 9(a) bargaining relationships, since Section 8(f) relationships may not be extended off-site. It is true that an effect of a union standards clause is to limit the range of off-site contractors with whom a general contractor may deal, but not because of the union status of those subcontractors. Rather, the main purpose of work preservation clauses is to keep the work on-site by removing economic incentives for the general contractor to send it elsewhere. Thus, “under an existing 8(f) relationship, the union party to the 8(f) contract is the lawful representative of the employees covered by the contract. As their representative such union has an interest in restricting subcontracting in order to protect continuity of work and fringe benefits for the employees and to insure more stable and harmonious jobsite relations to the same extent a 9(a) representative has.” Los Angeles Bldg. & Constr. Trades Council, 239 N.L.R.B. 264, 270 (1978). Eisenmann contends, however, that" }, { "docid": "2439377", "title": "", "text": "effect of automation on the bargaining unit is a mandatory subject. Omaha Typographical Union, No. 190 v. N.L.R.B., 545 F.2d 1138, 1141 (8th Cir.); N.L.R.B. v. Columbia Tribune Publishing Co., supra at 1391. However, unlike the employer in Omaha Typographical, NPC was not content with the right to bargain hard to a genuine impasse and thereafter to implement its proposed technological changes. Rather, in demanding the right to transfer work out of the unit at will, NPC sought to circumvent the Union’s right to represent the employees in the composing room unit. The Union’s right to recognition in the appropriate unit, as defined in the collective-bargaining agreement, makes the right to bargain over either of these issues effective. To allow an employer to alter the composition of the unit at will by unilaterally electing to transfer work out of the unit would effectively deprive unit employees of their statutory right to collective representation and bargaining as to the reduction or elimination of their jobs through work transfers or automation. The employer’s unilateral action would place those jobs beyond the scope of the unit represented by the Union. The Fourth Circuit in Newport News Shipbuilding & Dry Dock Co. v. N.L. R.B., supra, 602 F.2d at 77-78, rejected an argument virtually identical to the one advanced by NPC here: The Company argues strenuously that the substitute language was not intended to modify the unit certified by the Board but to clarify the various job functions which the members of the unit were to perform. The Board agrees that, unless transfers are specifically prohibited by the relevant collective bargaining agreement, an employer may transfer work out of the bargaining unit, as long as the employer first bargains in good faith and is not motivated by anti-union animus. See University of Chicago v. N.L.R.B., 514 F.2d 942, 949 (7 Cir. 1975); accord, Boeing Co. v. N.L.R.B., 581 F.2d 793, 797 (9 Cir. 1978). It does not follow however, that an employer, under the guise of the transfer of unit work, may alter the composition of the bargaining unit. To do so would not" }, { "docid": "14429125", "title": "", "text": "an extant contract. See, e.g., Brink’s Inc., at 870 n. 7 (“[W]e note that in Wells Fargo Corp., 270 NLRB 787 fn. 4 (1984), we found it unnecessary to pass on whether a respondent would have been privileged to withdraw recognition within the contract term. We similarly find it unnecessary to pass on that issue in the instant case.”) The Second Circuit has explicitly ruled on this issue. In Truck Drivers Local Union No. 807 v. N.L.R.B., 755 F.2d 5 (2d Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 225 (1985), it held that an employer who voluntarily recognizes a guard-non-guard union may not discontinue the relationship during the existing contractual period. Id. at 10. Both PRMMI and the union argue that the guards are not covered by the collective bargaining agreement because the guard-nonguard unit is not explicitly included in the agreement. The record establishes, however, that PRMMI voluntarily recognized appellees as members of Local 1575 and that both PRMMI and the union treated the guards as covered by the extant collective bargaining agreement. This de facto recognition by the employer and the union is sufficient. We find that the guards were covered under the collective bargaining agreement up to its expiration. AGREEMENT BY EMPLOYER & UNION TO EXCLUDE THE GUARDS Local 1575 contends that the district court erred in determining that PRMMI and Local 1575 could not, during the term of the collective bargaining agreement, agree to clarify the bargaining unit and exclude the appellees from it. Local 1575 argues that clarification of a unit through stipulation is a routine matter. It fails, however, to cite to any supporting law for this proposition. Indeed, the law is to the contrary. The. Board in Wallace-Murray Corp., 192 N.L.R.B. 1090 (1971), refused to clarify a bargaining unit midway through a current bargaining agreement to exclude guards from it. See also N.L.R.B. v. Mississippi Power & Light Co., 769 F.2d 276 (5th Cir.1985); Consolidated Papers, Inc. v. N.L.R.B., 670 F.2d 754, 757 (7th Cir.1982); Shop Rite Foods, Inc., 247 N.L.R.B. No. 143 (1980); Massachusetts Teachers Ass’n, 236 N.L.R.B." }, { "docid": "15509206", "title": "", "text": "BSD complex in which its members worked and that, by transferring the work, the University repudiated both the recognition clause and the. terms and conditions of employment of its members in violation of Section 8(a)(5) and (2) of the Act; and that by requiring Local 321 members to join and pay dues to Local 1657 the University rendered unlawful assist- anee to that union in violation of Section 8(a)(5) and (1) of the Act. In concluding that the allocation of cleaning areas was an “inextricable, albeit inexplicit, part of the bargaining history”, the Board appears quite “inex-plicit” itself in delineating the basis for its unusual conclusion. While it asserts in its brief here that “the evidence indicates that the University agreed to assign certain work to specific employees and recognize their union”, the Board fails to point out what evidence supports such an indication, and in its “Decision and Order” no such claim is mentioned, much less supported. The reason for this failure is clear: There is no evidence in the record that even “indicates” such a finding. The Administrative Law Judge treats certain language in the contract, i. e. the addition on May 7, 1971, of “Janitors in the Biological Science Division” to the enumeration of classifications and departments covered in the recognition clause, as if it were a jurisdictional clause, prohibiting the transfer of work. We fail to understand how such language can be so interpreted. The Board concedes in its brief that the addition to this clause was intended, in the Board’s own words, “solely to insulate these BSD employees from their imminent job loss and bumping due to a layoff in the Plant Department.” The recognition clause itself has appeared in successive agreements for 23 years, and no such claim was ever made despite many transfers of work from Local 321 as well as Local 1657. To support its position, the Board contends that there was an agreement “to assign specific work to a specific group of employees for the duration of the collective bargaining agreement, as shown by the bargaining history.” (Emphasis supplied) But, as" }, { "docid": "8014784", "title": "", "text": "N.L.R.B. 664 (1965), enforced in part sub nom. Local 57, ILGWU v. NLRB, 374 F.2d 295 (D.C.Cir. 1967), is that an order merely requiring an employer to bargain with the union that had represented workers at an abandoned plant and offer preferential reinstatement is rather mild medicine whereas a recognition order runs into the difficulties we have mentioned and may be unfair to workers at the new plant. We think the Board is justified in requiring back pay in such cases for workers who would have transferred if proper bargaining had occurred. See Fibreboard Paper Prods. Corp. v. NLRB, supra, 379 U.S. at 215-217, 85 S.Ct. 398, 13 L.Ed.2d 233. But the question again is back pay at what rate ? The Examiner’s solution — back pay at the rate provided in the old contract — would make the workers not merely whole but very much more; carrying over the old pay scales is something that Cooper was demonstrably unwilling to do and the Union rather obviously lacked economic power to compel. Yet the function of the Board’s remedy is to restore “the situation, as nearly as possible, to that which would have obtained but for” the illegal action, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). Furthermore, to compute back pay on this basis would hopelessly complicate the determination of which employees would have transferred if proper bargaining had occurred. While the Board would naturally regard an actual transfer for a substantial period as satisfactory proof that an employee would have transferred, the prospect of a two-year back-pay award computed at an unrealistically high rate would be so powerful an incentive for such a transfer as to undermine an otherwise reasonable inference. This difficulty in determining who would have transferred under proper bargaining, as well as the harsher impact of an order dealing with an entire work force, cf. Fibreboard Paper Prods. Corp. v. NLRB, supra, 379 U.S. at 216, 85 S. Ct. 398, 13 L.Ed.2d 233, sufficiently distinguishes the decisions enforcing back-pay orders for failure to bargain over subcontracting on" }, { "docid": "2660131", "title": "", "text": "construed the prohibitions in the 1959 amendments. Distinguishing Allen Bradley Co. v. Local Union No. 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), as a case involving secondary boycott activity, the Court held that while secondary activity aimed at acquiring for employers and union members work already being performed by third parties was prohibited, Congress did not intend the prohibition of work preservation clauses in collective bargaining agreements even though such clauses might fall within the literal terms of § 8(e). Indeed the Court explicitly recognized that the 1959 amendments made no change in the rule of Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), that work preservation is a mandatory subject of collective bargaining. 386 U.S. at 642, 87 S.Ct. 1250. The determination whether a given demand went beyond the legitimate primary area of work preservation and into the forbidden secondary boycott area was said to involve in each instance a factual inquiry into all the surrounding circumstances. 386 U.S. at 644, 87 S.Ct. 1250. Here the forum of choice, the NLRB, has made that factual inquiry and has determined that the Rules are directed not at work preservation, but at acquiring work from the employees of a secondary employer. One consequence of the NLRB’s decision is to foreclose the argument that the object of the agreement ultimately reached is a mandatory subject of collective bargaining, for an agreement that violates § 8(e) cannot meet that standard. The NLRB has stated that: the Act does not permit . • the insistence, as a condition precedent to entering into a collective bargaining agreement, that the other party to the negotiations agree to a provision or take some action which is unlawful or inconsistent with the basic policy of the Act. Compliance with the Act’s requirement of collective bargaining cannot be made dependent upon the acceptance of provisions in the agreement which, by their terms or in their effectuation, are repugnant to the Act’s specific language or basic policy. National Maritime Union (Texaco Co.), 78 N.L.R.B. 971, 981-82 (1948)," }, { "docid": "20794332", "title": "", "text": "in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964) establishes that stipulations with respect to contracting out of work performed by members of a bargaining unit is a “term and condition of employment” for which collective bargaining is required. The argument continues to the effect that execution of a subcontractors agreement would indeed affect the right of Long’s employees to select their exclusive bargaining agent because, by virtue of the agreement, the Council would have assumed the role of the Long employees’ exclusive collective bargaining representative at least as to one significant and mandatory subject of bargaining (i. e., subcontracting), and because the status of any other bargaining agent subsequently selected by Long’s employees would concomitantly be hampered. The Board attempts to apply the force of judicial precedent to these contentions through the vehicle of Dallas Building and Construction Trades Council v. NLRB, supra. In Dallas, the court had before it a petition for review and a cross petition for enforcement of an Order of the Board which had concluded that the Dallas Building and Construction Trades Couilcil had violated § 8(b) (7) (A) by picketing with a recognitional objective at a time when, under the Board’s contract bar rules, no question of recognition could be raised. The invervenor was Dallas County Construction Employers Association, Inc., which had collective bargaining agreements with the local craft unions affiliated with the Trade Council. The case was set against an unusual background. Four of the council’s eight local union affiliates, after negotiations, had entered into contracts with the Association which did not contain subcontracting clauses, but which contained other improvements in wages and working conditions in lieu thereof. The council, on the other hand, was now proposing to the Association that it sign a subcontractor agreement with it and persisted in this demand. When the Association refused, notwithstanding the council’s rather stark conflict with its affiliated locals, it commenced picketing against the Association to compel the signing of a subcontractor agreement, leading to the charges and counter-charges before the Board. In view of the fact" }, { "docid": "9704278", "title": "", "text": "because they conceivably protect unit work. 294 N.L.R.B. at 771 (emphasis added). See also Plumbers & Steamfitters Local 342 v. N.L.R.B., 598 F.2d 216, 219 (D.C.Cir.1979) (“The Supreme Court has made clear and the Board acknowledges, that not all so-called ‘work preservation’ agreements such as the union standards clause in the Agreement violate the National Labor Relations Act.”); Building Materials & Construction Teamsters Union Local No. 216, Etc. v. N.L.R.B., 520 F.2d 172, 179 n. 6 (D.C.Cir.1975) (court affirmed Board’s holding that “[sjince employers who [were] parties to the AGO contract were not engaged in [a particular] type of hauling, nor [were] shown even to have anticipated its performance, the object of [the union standards clause] was not the preservation or protection of unit work”); Truck Drivers Union Local No. 413 v. N.L.R.B., 334 F.2d.539, 548 n. 13 (D.C.Cir.) (“Since this clause is entitled ‘Subcontracting,’ we assume — in the absence of any indication to the contrary — that its scope is limited to the contracting out of work which otherwise would be performed by members of the bargaining unit.”), cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964); In re Bituminous Coal, 756 F.2d at 289 (“A union standards clause is designed to inhibit subcontracting of work that would otherwise be performed by members of the bargaining unit.”); Associated General Contractors, 280 N.L.R.B. 698, 701-02 (“[Contractual clauses with a primary purpose serving the general institutional interest of the union in organizing or regulating the labor policies of employers with whom the union does not have a collective bargaining relationship are unlawful under Section 8(e) because ... they are not aimed at preserving either the work or the employment standards of unit employees.”) (emphasis added). D. Local No. 3 argues that even if off-site hauling is not found to be work “traditionally or customarily” performed by the members of the bargaining units, the work in question is still “fairly claimable,” i.e., work that requires the same skills and abilities as the traditional work of the unit employees. Under this doctrine, which has not yet been adopted in" } ]

[ { "docid": "12387414", "title": "", "text": "jurisdiction to hear Joel-son’s claim under the Administrative Procedure Act because the decision to remove a panel trustee is committed to agency discretion by law; (2) Joelson failed to state a valid constitutional claim; (3) Joelson’s exclusive remedy for a common law tort is an action against the United States; (4) the district court lacked personal jurisdiction over the individual defendants; (5) the defendants are entitled to qualified immunity; and (6) the U.S. Trustee Program is constitutional. On February 13, 1995, the district court dismissed Joelson’s complaint pursuant to Rules 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. This timely appeal followed. I. We review a district court’s decision to grant a motion to dismiss for lack of subject matter jurisdiction de novo. Madison-Hughes v. Shalala, 80 F.3d 1121, 1123 (6th Cir.1996). We also review a district court’s dismissal of claims pursuant to Rule 12(b)(6) de novo, construing the complaint “in the light most favorable to the plaintiff, accepting] all factual allegations as true, and determining] whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief.” In re DeLorean Motor Co., 991 F.2d 1236, 1239-40 (6th Cir.1993) (stating also that “a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory”). Applying these standards, we turn to a review of Joelson’s claims. II. Counts I and II of Joelson’s complaint alleged that the U.S. Trustee’s decision to remove him from active ease rotation violated the due process requirements of the Administrative Procedure Act. Specifically, Joelson claimed that his panel membership constituted a “license” under Section 551(8) of the Act, and that the defendants deprived him of that license without notice and an opportunity to cure any deficient conduct in violation of Sections 558(c)(1) and (2). The district court dismissed Joelson’s Administrative Procedure Act claims for lack of subject matter jurisdiction on the ground that the U.S. Trustee’s decision to remove Joelson from active case" } ]

[ { "docid": "11024489", "title": "", "text": "guidelines. 470 U.S. at 834-35, 105 S.Ct. at 1657-58. Because Title VI does not provide express or substantive guidelines for HHS to follow in deciding what information to collect when enforcing the statute, there is no law for this court to apply. The APA provides that where an agency has this discretion, judicial review is unavailable. 5 U.S.C. § 701(a)(2). Therefore, in the present ease, judicial review under the APA is not authorized. The district court is affirmed on this issue. V. We must next decide whether the district court erred when resolving procedural issues regarding plaintiffs’ argument that HHS collects insufficient data. Any factual findings made by the district court in resolving a motion to dismiss are reviewed under a clearly erroneous standard. See Gafford v. General Electric Co., 997 F.2d 150, 161 (6th Cir.1993). Plaintiffs argue on appeal that “the district court erred when it dismissed this action based on the unsupported factual assertions of the defendants, rather than treating as true the contrary factual allegations of the complaint.” Plaintiffs allege that HHS failed to present any evidence to the district court that they did, in fact, collect data pursuant to Title VI. Plaintiffs claim that because this case involved a facial attack under Fed.R.Civ.P. 12(b)(1) (merely questioning the sufficiency of the pleading), the allegations in their complaint must be taken as true. Plaintiffs fail to recognize the fundamental difference between a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and a motion to dismiss for failure to state a claim upon which relief can be granted under Fed. R.Civ.P. 12(b)(6), which this court recognized in Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir.1986). When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. Id.; Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). In addition, the district court is empowered to resolve factual disputes when necessary to resolve challenges to sub ject matter jurisdiction. United States v. Ritchie, 15 F.3d 592, 598 (6th" }, { "docid": "1707299", "title": "", "text": "resulting contamination of groundwater and surface water. Ohio, ex rel Fisher v. Ashland Petroleum Company and Union Oil Company of California dba Unocal, Case No. 91-F-90011. On that same day the parties, with the approval of the common pleas court, entered a consent order for a preliminary injunction requiring site investigation and remedial work in accordance with the National Contingency Plan. 40 C.F.R. Part 300. SURREPLY In addition to the memoranda permitted under Local Rule 7.2(a), plaintiff has filed a motion for leave to file a surreply memoran-da. Plaintiff requests that it be permitted to file a surreply containing more detailed information on the applicability of the Hazardous and Solid Waste Amendments (HSWA). Ashland has also filed a motion for leave to file a response to plaintiffs surreply. Although plaintiff gives no reason why the more detailed information found in the surre-ply was not contained in the original response, the information provides the Court with additional helpful information on issues in dispute and the motion for leave is granted. Likewise, defendant’s motion for leave to file a response to the surreply is granted. The Court will consider the surreply and response. ADDITIONAL AUTHORITY Ashland has filed two motions for leave to file instanter additional authority on the basis that decisions issued after its briefs were filed are relevant to its motion to dismiss. The motions are granted and the Court will consider the opinions. LEGAL STANDARD When a defendant seeks dismissal under both Rule 12(b)(1) and 12(b)(6), the Court is bound to consider the Rule 12(b)(1) motion first, because the Rule 12(b)(6) motion will become moot if the Court lacks subject matter jurisdiction. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). In reviewing a Rule 12(b)(1) motion, the plaintiff has the burden of proving jurisdiction to survive the motion and the Court has the power to resolve factual disputes. Id., Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986). However, where the complaint seeks recovery directly under federal law the federal court must entertain the action unless the claim is immaterial or wholly" }, { "docid": "11925356", "title": "", "text": "Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 et seq.; the ADA; theADEA; Title VII; and the Rehabilitation Act of 1973. Akal then filed a Motion to Dismiss or, in the alternative, for Summary Judgment. (Doc. # 9.) Akal’s motion is now ripe for disposition. II. Discussion A. Plaintiffs’ LMRA and NLRA Claims 1. Rule 12(b)(1) Standard of Review Applies Defendant moves to dismiss pursuant to Rule 12(b)(1), 12(b)(6), and 12(b)(7) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, failure to state a claim upon which the court can grant relief, and/or failure to join an indispensable party. Rule 12(b)(1) provides that an action may be dismissed for lack of subject matter jurisdiction. Under the Federal Rules of Civil Procedure, “[plaintiffs have the burden of proving jurisdiction in order to survive a Rule 12(b)(1) motion.... ” Weaver v. Univ. of Cincinnati, 758 F.Supp. 446, 448 (S.D.Ohio 1991) (citing Moir v. Greater Cleveland Reg'l. Transit Auth., 895 F.2d 266, 269 (6th Cir.1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F.Supp.2d 1008, 1012 (S.D.Ohio 2002) (citing McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986)) (“The plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of federal subject matter jurisdiction.”) Moreover, a Rule 12(b)(1) challenge can either facially or factually attack the basis for subject matter jurisdiction. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004) (stating “[a] rule 12(b)(1) motion can either attack the claim of jurisdiction on its face in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists”). In Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884 (3d Cir.1977), the Third Circuit elaborated on this crucial distinction: The facial attack [in comparison to a 12(b)(6) motion] does" }, { "docid": "528926", "title": "", "text": "district court in resolving a motion to dismiss, however, are reviewed only for clear error. See Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir.1999) (quoting Gafford v. Gen. Elec. Co., 997 F.2d 150, 161 (6th Cir.1993)). When a defendant moves to dismiss on grounds of lack of subject matter jurisdiction, “the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990). In reviewing a 12(b)(1) motion, the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits. Rogers v. Stratton Industries, 798 F.2d 913, 916 (6th Cir.1986). However, where a defendant argues that the plaintiff has not alleged sufficient facts in her complaint to create subject matter jurisdiction, the trial court takes the allegations in the complaint as true. Jones, 175 F.3d at 413. III. Analysis A. Subject Matter Jurisdiction The district court wrongly dismissed Nichols’ complaint for lack of subject matter jurisdiction. Nichols satisfied the administrative prerequisites for bringing an action in federal court under Title VII. Her actions at the OCRC constituted initially instituting proceedings with the OCRC, and thus her filing with the EEOC was timely, giving the district court subject matter jurisdiction to decide her claim on the merits. Before a plaintiff alleging discrimination under Title VII can bring suit in federal court, she must satisfy two administrative prerequisites: “(1) by filing timely charges of employment discrimination with the EEOC, and (2) receiving and acting upon the EEOC’s statutory notices of the right to sue.” Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1486 (6th Cir.1989)(citing 42 U.S.C. § 2000e-(f)(1); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Pursuant to 42 U.S.C. § 2000e-5(e)(1), a charge is timely when the aggrieved filed with the EEOC within 180 days after the allegedly unlawful prac tice occurred. An exception lies for charges initially instituted with a state agency: [I]n a case of unlawful employment practice with respect" }, { "docid": "528941", "title": "", "text": "discretion in finding that Griffin filed a timely EEOC claim.”). Adopting this approach, we find that Nichols’ May 28,1998, charge with the OCRC was constructively terminated pursuant to the worksharing agreement and should be deemed filed with the EEOC on that same date. Consistent with federal law, state law, EEOC regulations, and the OCRC regulations, the legal effect of Nichols’ interaction with the OCRC was to institute proceedings with that commission 295 days after Muskingum College allegedly discriminated against her. B. Attorney Fees The district court denied Muskingum’s motion for attorney fees without explanation. This Court reviews a decision regarding the award of attorney’s fees for an abuse of discretion. See Secretary Dept. of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985). Title VII permits the award of attorney fees to the prevailing party in a Title VII action: In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k). Because we reverse the district court’s decision dismissing the complaint for lack of subject matter jurisdiction, Muskingum is no longer the prevailing party and its motion for attorney’s fees is not ripe. IV. Conclusion Based upon the foregoing analysis, the judgment and order of the district court concerning Muskingum’s Motion to Dismiss is REVERSED and REMANDED for consideration upon the merits of the claim. As a result, Muskingum’s appeal of the district court’s denial of its motion for attorney’s fees is not ripe, and the decision of the district court denying attorney’s fees is AFFIRMED on that basis. . The Worksharing Agreement 11(C) includes the following relevant provision which shows its purpose of promoting filing of claims with both the EEOC and the OCRC: Each Agency will inform individuals of their rights to file charges with the other Agency and or assist any person alleging employment discrimination to draft a" }, { "docid": "528924", "title": "", "text": "of female faculty. The OCRC officer asked Nichols a number of questions about her complaint and assisted her in the completion of her charge. Nichols handwrote the charge on OCRC stationery, signed it, and checked the box next to the signature line labeled “I also want this charge filed with the EEOC.” The charge was then forwarded to the EEOC. On July 30, 1998, the EEOC issued Nichols a right to sue letter, and Nichols filed suit on October 27,1998. Muskingum responded by filing a motion to dismiss, arguing that because no charge was filed with the OCRC under Ohio law, the 300-day limitations period was inapplicable, and Nichols’ charge was therefore untimely. In response, Nichols argued that her actions at the OCRC office constituted “initially instituting proceedings” with the state agency, entitling her to a 300-day limitations period. The district court initially denied Mus-kingum’s motion, stating that although Title VII “does not define the term ‘instituted,’ ” that term “is broad enough to encompass plaintiffs initial presentation of her charge to OCRC personnel at the OCRC offices.” Muskingum filed a motion for reconsideration, arguing that the district court misapplied the statute by omitting the word “proceeding” from its citation to Title VII. Muskingum argued that it is not enough for a complainant to simply present a charge; rather, the state agency has to consider the charge as filed in order to satisfy the requirement to institute proceedings. The district court granted Muskingum’s motion. In its opinion, the court concluded that although the OCRC personnel helped Nichols process her charge, that charge was filed only with the EEOC and not with the OCRC, and thus proceedings were not instituted with the OCRC. Accordingly, the district court found that Nichols failed to file a timely EEOC charge and thus granted Muskingum’s motion to dismiss for lack of subject matter jurisdiction. II. Standard of Review This Court reviews a district court’s decision to grant a motion to dismiss for lack of subject matter jurisdiction de novo. See Joelson v. United States, 86 F.3d 1413, 1416 (6th Cir.1996). Factual findings made by the" }, { "docid": "3351273", "title": "", "text": "In his first claim, styled “Material Misrepresentation,” plaintiff alleges that DCB failed to mention the write down in its form 10-Q filed with the Security and Exchange Commission (“SEC”) on November 14, 2001, in violation of DCB’s reporting requirements. Plaintiff further alleges that DCB’s annual report contained conflicting statements concerning the reason for the write down, and that the directors concealed the true nature and extent of the financial condition of DCB by not properly disclosing the nature of the write down. In his second claim, plaintiff alleges that the directors breached their fiduciary duty to the shareholders of DCB by failing to properly disclose the reasons for the write down. In his third claim, plaintiff alleges that DCB failed to follow proper reporting and accounting procedures in connection with the write down, and failed to properly recognize the losses comprising the write down in the periods in which they occurred. In his fourth claim, plaintiff requests an accounting to determine the origins of the write down and the impact which the write down had on the financial assets of DCB. In his fifth claim, which he pursues in his individual capacity, plaintiff alleges that he was wrongfully denied his right to inspect and review DCB’s books and records of account in violation of Ohio Rev. Code §■ 1701.37(C). This matter is before the court on the defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, and pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim for which relief may be granted. I. Standards Applicable to Motion to Dismiss Where defendants raise the issue of lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir.1999); Moir v. Greater Cleveland Regional Transit Auth, 895 F.2d 266, 269 (6th Cir.1990). Where, as here, the defendants argue that the facts alleged by the plaintiff in the complaint are insufficient to establish subject matter jurisdiction, the trial court takes the allegations in" }, { "docid": "3351274", "title": "", "text": "on the financial assets of DCB. In his fifth claim, which he pursues in his individual capacity, plaintiff alleges that he was wrongfully denied his right to inspect and review DCB’s books and records of account in violation of Ohio Rev. Code §■ 1701.37(C). This matter is before the court on the defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, and pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim for which relief may be granted. I. Standards Applicable to Motion to Dismiss Where defendants raise the issue of lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir.1999); Moir v. Greater Cleveland Regional Transit Auth, 895 F.2d 266, 269 (6th Cir.1990). Where, as here, the defendants argue that the facts alleged by the plaintiff in the complaint are insufficient to establish subject matter jurisdiction, the trial court takes the allegations in the complaint as true. Jones, 175 F.3d at 413; Ohio National Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court must construe the complaint in a light most favorable to the plaintiff and accept all well-pleaded allegations in the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A motion to dismiss under Rule 12(b)(6) will be granted if the complaint is without merit due to an absence of law to support a claim of the type made or of facts sufficient to make a valid claim, or where the face of the complaint reveals that there is an insurmountable bar to relief. Rauch v. Day & Night Mfg." }, { "docid": "2150074", "title": "", "text": "the district court had general jurisdiction under 28 U.S.C. § 1331 to hear GTE’s claims. In deciding this appeal, we express no opinion on the merits of GTE’s claims and determine only whether the district court has jurisdiction to entertain GTE’s challenge to the February 25 order. II This court reviews de novo the district court’s denial of GTE’s motion for summary judgment. See Greene v. Reeves, 80 F.3d 1101, 1104 (6th Cir.1996). We also review de novo the district court’s decision to dismiss GTE’s complaint for lack of subject matter jurisdiction. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996). Lack of subject matter jurisdiction is an affirmative defense that a defendant may assert in a motion to dismiss. See Fed.R.Civ.P. 12(b)(1); In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993) (emphasizing that to survive a motion to dismiss, a complaint must contain “either direct or indirect allegations respecting all material elements to sustain a recovery under some viable legal theory”). The party opposing dismissal has the burden of proving subject matter jurisdiction. See Moir v. Greater Cleveland Reg’l Transit Autk, 895 F.2d 266, 269 (6th Cir.1990). Specifically, the non-moving party must show that the complaint “alleges a claim under federal law, and that the claim is ‘substantial.’ ” Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996) (holding that a complaint is “substantial” unless “prior decisions inescapably render [it] frivolous”). That is to say, the non-moving party will survive the motion to dismiss by showing “any arguable basis in law” for the claims set forth in the complaint. Ibid. In conducting our review, we “construe the complaint in a light most favorable to the plaintiff, accept as true all of plaintiffs well-pleaded factual allegations, and determine whether the plaintiff can prove no set of facts supporting [his] claims that would entitle him to relief.” Ludwig v. Board of Trustees of Ferris State Univ., 123 F.3d 404, 408 (6th Cir.1997). We" }, { "docid": "21090668", "title": "", "text": "the fourth cause of action for lack of jurisdiction. III. STANDARD OF REVIEW A. RULE 12(b)(1) Under Federal Rule of Civil Procedure 12(b)(1), a motion to dismiss based on subject matter jurisdiction can fall into two categories: facial attacks and factual attacks. See U.S. v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). Facial attacks question the sufficiency of the pleading. See id. Review of such a motion must take the allegations in the complaint as true and construe them in the light most favorable to the nonmoving party. See id. A factual attack, however, is a challenge to the factual existence of jurisdiction. See id. In considering a motion that questions the factual existence of subject matter jurisdiction, a court need not rely on a presumption of truthfulness in the pleading’s allegations. See Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). A party opposing a factual Rule 12(b)(1) motion has the burden of proving jurisdiction and may not rest on factual assertions in its pleadings. See Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990); Ohio Nat’l Life Ins. Co., 922 F.2d at 325. A court reviewing a factual attack must resolve any factual disputes by weighing the evidence that gives rise to the factual controversy. Moir, 895 F.2d at 269; Ohio Nat’l Life Ins. Co., 922 F.2d at 325. The court has discretion in establishing the factual predicate of whether subject matter jurisdiction exists. See U.S. v. Ritchie, 15 F.3d at 598; Ohio Nat’l Life Ins. Co., 922 F.2d at 325. To resolve jurisdictional facts in dispute, a court may, at its discretion, allow affidavits, documents and even a limited evidentiary hearing. Ohio Nat’l Life Ins. Co., 922 F.2d at 325. B. RULE 12(b)(6) AND SUMMARY JUDGMENT The Federal Rules of Civil Procedure provide that when a motion to dismiss brought under Rule 12(b)(6) includes “matters outside of the pleading,” that the motion should be treated as one for summary judgment under Rule 56(c). Fed. R. Civ. P. 12(b); see also Greenberg v. Life Ins. Co., 177 F.3d 507" }, { "docid": "528925", "title": "", "text": "the OCRC offices.” Muskingum filed a motion for reconsideration, arguing that the district court misapplied the statute by omitting the word “proceeding” from its citation to Title VII. Muskingum argued that it is not enough for a complainant to simply present a charge; rather, the state agency has to consider the charge as filed in order to satisfy the requirement to institute proceedings. The district court granted Muskingum’s motion. In its opinion, the court concluded that although the OCRC personnel helped Nichols process her charge, that charge was filed only with the EEOC and not with the OCRC, and thus proceedings were not instituted with the OCRC. Accordingly, the district court found that Nichols failed to file a timely EEOC charge and thus granted Muskingum’s motion to dismiss for lack of subject matter jurisdiction. II. Standard of Review This Court reviews a district court’s decision to grant a motion to dismiss for lack of subject matter jurisdiction de novo. See Joelson v. United States, 86 F.3d 1413, 1416 (6th Cir.1996). Factual findings made by the district court in resolving a motion to dismiss, however, are reviewed only for clear error. See Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir.1999) (quoting Gafford v. Gen. Elec. Co., 997 F.2d 150, 161 (6th Cir.1993)). When a defendant moves to dismiss on grounds of lack of subject matter jurisdiction, “the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990). In reviewing a 12(b)(1) motion, the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits. Rogers v. Stratton Industries, 798 F.2d 913, 916 (6th Cir.1986). However, where a defendant argues that the plaintiff has not alleged sufficient facts in her complaint to create subject matter jurisdiction, the trial court takes the allegations in the complaint as true. Jones, 175 F.3d at 413. III. Analysis A. Subject Matter Jurisdiction The district court wrongly dismissed Nichols’ complaint for lack of subject matter" }, { "docid": "21393008", "title": "", "text": "the TDEC was not pursued in a state or federal court but consisted merely of administrative sanctions. The district court granted the city’s motion to dismiss for lack of subject matter jurisdiction. The court held that the TDEC was diligently prosecuting a civil action against the city and that plaintiffs had “failed to show, or even argue, that the TDEC is not a court.” Plaintiffs now appeal. II. A. Standard, of Review Holding that it did not have subject matter jurisdiction over plaintiffs’ action, the district court dismissed the case pursuant to Federal Rule of Civil Proce dure 12(b)(1). When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction in order to survive the motion. Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990). The city argues that the facts alleged by plaintiffs in their complaint are insufficient to establish subject matter jurisdiction. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, a similar safeguard to that employed under 12(b)(6) which governs motions to dismiss. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). Any factual findings made by the district court in resolving a motion to dismiss are reviewed only for clear error. Gafford v. General Electric Co., 997 F.2d 150, 161 (6th Cir.1993). Of course, we review de novo a district court’s determination on the issue of subject matter jurisdiction. Greater Detroit Resource Recovery Auth. v. ERA 916 F.2d 317, 319 (6th Cir.1990). B. S3 U.S.C. § 1365 The Clean Water Act, in requiring states to establish water pollution prevention programs in compliance with federal laws and regulations, allows states to issue NPDES permits. 33 U.S.C. § 1342(b). An NPDES permit allows the holder to discharge waste into a waterway at a daily level not to exceed the effluent limitations established by the permit. An entity holding a NPDES permit is subject to both federal and state enforcement actions, along with suits brought by citizens, to enforce the effluent limitations contained in each permit. 33 U.S.C. §" }, { "docid": "1707300", "title": "", "text": "file a response to the surreply is granted. The Court will consider the surreply and response. ADDITIONAL AUTHORITY Ashland has filed two motions for leave to file instanter additional authority on the basis that decisions issued after its briefs were filed are relevant to its motion to dismiss. The motions are granted and the Court will consider the opinions. LEGAL STANDARD When a defendant seeks dismissal under both Rule 12(b)(1) and 12(b)(6), the Court is bound to consider the Rule 12(b)(1) motion first, because the Rule 12(b)(6) motion will become moot if the Court lacks subject matter jurisdiction. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). In reviewing a Rule 12(b)(1) motion, the plaintiff has the burden of proving jurisdiction to survive the motion and the Court has the power to resolve factual disputes. Id., Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986). However, where the complaint seeks recovery directly under federal law the federal court must entertain the action unless the claim is immaterial or wholly insubstantial and frivolous. Cherokee Exp. Inc. v. Cherokee Exp., Inc., 924 F.2d 603, 609 (6th Cir.1991) (citing Bell v. Hood, 327 U.S. 678, 681-682, 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1945)). “The fact that a complaint may not state a claim upon which relief may be granted is of no relevance to the question of subject matter jurisdiction.” Id. The question of whether a complaint states a claim for relief calls for a decision on the merits, not for a determination of jurisdiction. Id. Ashland argues that the complaint fails to state claims upon which relief may be granted in regard to counts 2, 3 and 4 and that counts 3 and 4 have jurisdictional defects. The Court will first establish, with reference to counts 3 and 4, whether the Court has subject matter jurisdiction over the claims in those counts. If so, the Court will consider whether the respective counts state claims upon which relief can be granted. The purpose of a motion under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the" }, { "docid": "13960680", "title": "", "text": "judgment pursuant to Rule 56. The district court granted the FBI’s motion, dismissing Dixon’s complaint for lack of subject matter jurisdiction. Plaintiff-Appellant now appeals from that judgment. II. STANDARD OF REVIEW This Court reviews a district’s court decision to dismiss for lack of subject matter jurisdiction de novo. Joelson v. United States, 86 F.3d 1413, 1416 (6th Cir.1996). Factual findings made by the district court in deciding a motion to dismiss, however, are reviewed for clear error only. See Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir.1999) (abrogated on other grounds) (quoting Gafford v. Gen. Elec. Co., 997 F.2d 150, 161 (6th Cir.1993)). III. ANALYSIS On appeal, Dixon does not challenge the district court’s dismissal of his claim under the Fourteenth Amendment and his claims for defamation and injurious falsehood. Those claims are deemed abandoned. See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991) (concluding that any issues not raised by the appellant with respect to the district court’s ruling are considered abandoned on appeal and not reviewable by this Court). Pending for review is Dixon’s Title VII retaliation claim. The district court found that the FBI made the decision not to reinstate Plaintiff-Appellant before he filed his EEOC Complaint; therefore, he was required to include allegations of retaliation in the EEOC Complaint in order to exhaust his administrative remedies. Because the district court determined that Dixon did not do so, it dismissed the claim for lack of subject matter jurisdiction. Undoubtedly, federal employees who allege that they have been victims of discrimination must exhaust their administrative remedies. Benford v. Frank, 943 F.2d 609, 612 (6th Cir.1991) (stating “[t]he right to bring an action under Title VII regarding equal employment in the federal government is predicated upon the timely exhaustion of administrative remedies ...”); see also Hall v. U.S. Postal Serv., 857 F.2d 1073, 1078 n. 4 (6th Cir.1988). The purpose of the requirement is to trigger an investigation, which gives notice to the alleged wrongdoer of its potential liability and enables the EEOC to initiate conciliation procedures in an attempt to avoid litigation." }, { "docid": "528923", "title": "", "text": "OPINION WISEMAN, Senior District Judge. Plaintiff-Appellant Dr. Betsy Nichols (“Nichols”) appeals the district court’s dismissal for lack of subject matter jurisdiction of her Title VII employment discrimination claim. The district court found that Nichols failed to timely file a charge with the Equal Employment Opportunity Commission (“EEOC”). Defendant-Appellee Muskingum College (“Muskingum”) cross appeals the district court’s denial of its motion for attorney’s fees. For the following reasons, we REVERSE the district court’s decision granting Muskingum’s motion to dismiss and REMAND for consideration upon the merits of the claim. I. Facts Nichols was an assistant professor at Muskingum, located in New Concord, Ohio. Her contract had been renewed annually three times. On August 6, 1997, Muskingum notified Nichols that it would not renew her contract for the 1998-99 academic year. On May 28,1998-295 days after she received the notification of non-renewal — Nichols visited the Ohio Civil Rights Commission (“OCRC”) and spoke with an intake officer at the state agency, claiming that she was not re-hired because she did not conform to the college’s accepted stereotype of female faculty. The OCRC officer asked Nichols a number of questions about her complaint and assisted her in the completion of her charge. Nichols handwrote the charge on OCRC stationery, signed it, and checked the box next to the signature line labeled “I also want this charge filed with the EEOC.” The charge was then forwarded to the EEOC. On July 30, 1998, the EEOC issued Nichols a right to sue letter, and Nichols filed suit on October 27,1998. Muskingum responded by filing a motion to dismiss, arguing that because no charge was filed with the OCRC under Ohio law, the 300-day limitations period was inapplicable, and Nichols’ charge was therefore untimely. In response, Nichols argued that her actions at the OCRC office constituted “initially instituting proceedings” with the state agency, entitling her to a 300-day limitations period. The district court initially denied Mus-kingum’s motion, stating that although Title VII “does not define the term ‘instituted,’ ” that term “is broad enough to encompass plaintiffs initial presentation of her charge to OCRC personnel at" }, { "docid": "2150075", "title": "", "text": "material elements to sustain a recovery under some viable legal theory”). The party opposing dismissal has the burden of proving subject matter jurisdiction. See Moir v. Greater Cleveland Reg’l Transit Autk, 895 F.2d 266, 269 (6th Cir.1990). Specifically, the non-moving party must show that the complaint “alleges a claim under federal law, and that the claim is ‘substantial.’ ” Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996) (holding that a complaint is “substantial” unless “prior decisions inescapably render [it] frivolous”). That is to say, the non-moving party will survive the motion to dismiss by showing “any arguable basis in law” for the claims set forth in the complaint. Ibid. In conducting our review, we “construe the complaint in a light most favorable to the plaintiff, accept as true all of plaintiffs well-pleaded factual allegations, and determine whether the plaintiff can prove no set of facts supporting [his] claims that would entitle him to relief.” Ludwig v. Board of Trustees of Ferris State Univ., 123 F.3d 404, 408 (6th Cir.1997). We review for clear error any factual findings the district court made in deciding the motion to dismiss. See Gafford v. General Elec. Co., 997 F.2d 150, 161 (6th Cir.1993). Jurisdiction Over the Challenged Order Based on the scope of the applicable statutory provisions and the nature of the challenged order, we conclude that the district court has general jurisdiction pursuant to 28 U.S.C. § 1331 to hear GTE’s claims. Section 252(e)(6), which prohibits federal review of interlocutory orders entered in the course of FTA proceedings, plainly does not preclude review of the February 25 order, which was entered in an independent state law proceeding unrelated to the AT & T-Sprint arbitration. Moreover, even if one could interpret § 252(e)(6) to encompass GTE’s claims, to do so would frustrate Congress’s intent by allowing state commissions to insulate from federal review decisions allegedly preempted by, or otherwise contrary to, federal telecommunications law. We therefore reverse the district court’s order dismissing GTE’s complaint, but express no opinion on whether the order directing GTE to sell pre-assembled platforms and" }, { "docid": "11024490", "title": "", "text": "failed to present any evidence to the district court that they did, in fact, collect data pursuant to Title VI. Plaintiffs claim that because this case involved a facial attack under Fed.R.Civ.P. 12(b)(1) (merely questioning the sufficiency of the pleading), the allegations in their complaint must be taken as true. Plaintiffs fail to recognize the fundamental difference between a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and a motion to dismiss for failure to state a claim upon which relief can be granted under Fed. R.Civ.P. 12(b)(6), which this court recognized in Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir.1986). When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. Id.; Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). In addition, the district court is empowered to resolve factual disputes when necessary to resolve challenges to sub ject matter jurisdiction. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, — U.S. -, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994). Moreover, in the present case, plaintiffs’ complaint does not allege that HHS collects no data whatsoever, as plaintiffs now contend on appeal. Plaintiffs’ complaint states: (1) “[HHS] collects and publishes aggregate data on white and nonwhite health status and use of health resources;” (2) that the “[HHS] ha[s] maintained a nationwide Professional Review Organization which has resulted in some collection of data;” and (3) that HHS collects racial data every three years from facilities which received construction subsidies under the former Hill-Burton Act. Although plaintiffs allege, for the first time on appeal, that HHS has completely abdicated its duty to monitor noncompliance and collect data sufficient to ensure enforcement of Title VI, these statements in the complaint make it clear that plaintiffs are complaining about the level of enforcement and monitoring by the agency. See Gillis, 759 F.2d at 578. There is nothing whatsoever in the pleadings or record to support the assertion that HHS has totally abdicated its statutoiy responsibility. For" }, { "docid": "19219787", "title": "", "text": "Dismiss Interve-nors’ Complaint on January 19, 2006. On April 27, 2006, the Court granted Defendant’s Motion to Stay Consideration of Plaintiffs Motion for Class Certification pending its decision on both Defendant’s Second Motion to Dismiss Plaintiffs’ Amended Complaint and Defendant’s Motion to Dismiss Intervenors’ Complaint. The Defendant’s various motions to dismiss are now ripe for review. III. STANDARD OF REVIEW A. Dismissal For Lack of Subject Matter Jurisdiction Where a defendant raises the issue of lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004); Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990). Motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack is a challenge to the sufficiency of a complaint, and, when considering the motion, the court must view the material allegations of that complaint as true and construe them in the light most favorable to the nonmoving party. Id. A factual attack is a challenge to the factual existence of subject matter jurisdiction. Id. No presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and to satisfy itself as to the existence of its power to hear the case. Id.; Moir, 895 F.2d at 269. When there is an attack on the factual basis for jurisdiction, the district court must weigh the evidence, and the plaintiff has the burden of proving that the court has jurisdiction over the subject matter. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005). B. Dismissal for Failure to State a Claim A motion to dismiss under Rule 12(b)(6) is designed to test “whether a cognizable claim has been pleaded in the complaint.” Scheid v. Fanny Farmer Candy Skops, Inc. 859 F.2d 434, 436 (6th Cir.1988). In considering such a motion, the Court is" }, { "docid": "13960679", "title": "", "text": "the FBI’s alleged discrimination (hereinafter “Attached Statement”) (together with the Complaint of Discrimination, the “EEOC Complaint”). On the Complaint of Discrimination, Dixon checked only the box for “Race” and stated afterwards, “Black.” A hearing was held and the ALJ made findings of fact and conclusions of law that, “the Agency discriminated against [Plaintiff-Appellant] because of his race when it denied him reinstatement in March 1992.” That determination, however, was rejected by the United States Department of Justice, Complaint Adjudication Office (“CAO”), and an appeal was taken to the EEOC’s Office of Federal Operations. The EEOC’s Office of Federal Operations upheld the CAO’s determination that the record did not support the AL J’s finding of discrimination. Hence, on November 12, 2002, Dixon filed a Complaint in the Eastern District of Michigan, asserting four causes of action: 1) Title VII — Retaliation; 2) 42 U.S.C. § 1983 — Violation of Due Process; 3) Defamation; and 4) Injurious Falsehood. The Agency moved for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or alternatively for summary judgment pursuant to Rule 56. The district court granted the FBI’s motion, dismissing Dixon’s complaint for lack of subject matter jurisdiction. Plaintiff-Appellant now appeals from that judgment. II. STANDARD OF REVIEW This Court reviews a district’s court decision to dismiss for lack of subject matter jurisdiction de novo. Joelson v. United States, 86 F.3d 1413, 1416 (6th Cir.1996). Factual findings made by the district court in deciding a motion to dismiss, however, are reviewed for clear error only. See Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir.1999) (abrogated on other grounds) (quoting Gafford v. Gen. Elec. Co., 997 F.2d 150, 161 (6th Cir.1993)). III. ANALYSIS On appeal, Dixon does not challenge the district court’s dismissal of his claim under the Fourteenth Amendment and his claims for defamation and injurious falsehood. Those claims are deemed abandoned. See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991) (concluding that any issues not raised by the appellant with respect to the district court’s ruling are considered abandoned on appeal and not reviewable by" }, { "docid": "2433576", "title": "", "text": "then made a specific legal conclusion against the movant based upon the very factual grounds the movant argued warranted dismissal. This result more closely resembles the result of a Fed.R.Civ.P. 12(b)(1) analysis. Cf. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990) (noting a trial court may consider documents outside the complaint and conduct a limited evidentiary hearing without converting a Rule 12(b)(1) motion into a motion for summary judgment). The Court will construe D. Taylor’s motion as a challenge to subject matter jurisdiction under Rule 12(b)(1). See In re Cash Currency Exchange, Inc., 762 F.2d 542, 545-46 (7th Cir.1985) (determining challenges under Section 109(b)(2) are jurisdictional); Selcke v. MedCare HMO, 147 B.R. 895, 899 (N.D.Ill.1992) (same); In re Southern Industrial Banking Corp., 59 B.R. 978, 979-80 (E.D.Tenn.1986) (same); see also Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th Cir.1990) (considering a Rule 12(b)(1) motion before a Rule 12(b)(6) motion because the latter becomes moot if a court lacks subject matter jurisdiction). “It is axiomatic that federal courts are courts of limited jurisdiction, and as such, are under a continuing duty to satisfy themselves of their jurisdiction before proceeding to the merits of any case.” Packard v. Provident National Bank, 994 F.2d 1039, 1049 (3rd Cir.1993). Under Rule 12(b)(1), the plaintiff bears the burden of proving jurisdiction. Moir, 895 F.2d at 269; Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir.1986). A Rule 12(b)(1) motion may take two forms. First, if it attacks the face of the complaint, the plaintiffs burden “is not onerous.” Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996). In reviewing a facial attack, courts must consider the factual allegations as true. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996). Second, if the motion attacks the factual basis for subject matter jurisdiction, a court “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case ... [because] no presumptive truthfulness attaches to the plaintiffs allegations.” RMI Titanium, 78" } ]

[ { "docid": "22663854", "title": "", "text": "some Philadelphia robberies in which the robber used a handwritten note demanding that money be handed over to him, and during that interrogation gave the agent the handwriting-exemplars. They were admitted in evidence at trial over objection that they were obtained in violation of petitioner’s Fifth and Sixth Amendment rights. The California Supreme Court upheld admission of the exemplars on the sole ground that petitioner had waived any rights that he might have had not to furnish them. “[The agent] did not tell Gilbert that the exemplars would not be used in any other investigation. Thus, even if Gilbert believed that his exemplars would not be used in California, it does not appear that the authorities improperly induced such belief.” 63 Cal. 2d, at 708, 408 P. 2d, at 376. The court did not, therefore, decide petitioner’s constitutional claims. We pass the question of waiver since we conclude that the taking of the exemplars violated none of petitioner’s constitutional rights. First. The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of “an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,” and not “compulsion which makes a suspect or accused the source of ‘real or physical evidence’, ; . .” Schmerber v. California, 384 U. S. 757, 763-764. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, at 222-223. No claim is made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U. S. 616. Second. The taking of the exemplars was not a “critical” stage of the criminal proceedings entitling petitioner to the assistance" } ]

[ { "docid": "22138969", "title": "", "text": "recording device. Dionisio refused to do so, asserting that such a procedure violated his rights under the fourth and fifth amendments. The Government’s petition for enforcement established that the voice exemplars were essential and necessary to the grand jury investigation and that they would be used solely as a standard of comparison in order to determine whether or not the witness was the person whose voice was intercepted. The Seventh Circuit, relying on Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), held that before a grand jury subpoena could issue for such a purpose there must be preliminary showing in open court of probable cause for its issuance. In re Dionisio, 442 F.2d 276 (7th Cir. 1971). Compare the above with United States v. Doe, 457 F.2d 895 (2d Cir. 1972). In Mara the Government sought handwriting exemplars. Its enforcement petition, presented to the court ex parte, and supported by an affidavit of an F.B.I. agent setting forth the basis for seeking the exemplars, established that the handwriting exemplars were essential and necessary to the grand jury investigation and would be used solely to determine whether Mara was the author of certain writings. The Seventh Circuit reversed. Relying on its Dionisio holding it held that an ex parte proceeding was inadequate and that in addition to the need for comparison the Government must establish that exemplars were unavailable from another source. In re September 1971 Grand Jury (Richard J. Mara), 454 F.2d 580 (7th Cir. 1971). In both cases the Supreme Court reversed. The holding in Dionisio is clear: “Since the Court of Appeals found an unreasonable search and seizure where none existed, and imposed a preliminary showing of reasonableness where none was required, its judgment is reversed and this case is remanded to that Court for further proceedings consistent with this opinion.” 410 U. S. at 18, 93 S.Ct. at 773. Its holding in Mara reiterates that in Dionisio. Both hold that the fourth amendment does not require any preliminary showing for the issuance of a grand jury subpoena, either to compel testimony, or" }, { "docid": "14322227", "title": "", "text": "States v. McDougal, 137 F.3d 547, 559 (8th Cir.1998) (citing Gilbert, 388 U.S. at 266-67, 87 S.Ct. 1951). Thus, it is settled that a defendant in a criminal case may be compelled to furnish a handwriting exemplar and it is also settled that “introducing samples of the defendant’s handwriting at trial do[es] not violate the Fifth Amendment privilege against self-incrimination.” McDougal, 137 F.3d at 559. A prosecutor is likewise permitted to comment on, and indeed present evidence of, a defendant’s refusal to provide a handwriting exemplar if he was directed to do so, as involved here. Additionally, “[ejvidence that the defendant attempted to disguise his or her handwriting is also permissible, since otherwise the defendant could frustrate the government’s right to obtain a sample.” McDougal, 137 F.3d at 559 (citations omitted). In light of these settled principles, it is clear that the December 14, 2005 Order directing Lentz to provide handwriting exemplars to the government did not infringe his constitutional rights in any respect. And, it is equally clear that Lentz does not enjoy a constitutional right to refuse to comply with the December 14, 2005 Order, as he has chosen to do in this instance. See In re Braughton, 520 F.2d 765, 767 (9th Cir.1975) (holding that there is “no general right to refuse to obey an order to make a handwriting exemplar which on it face contains no request for testimonial matter”); United States v. Blakney, 581 F.2d 1389, 1390 (10th Cir.1978) (recognizing that “defendant had no right to withhold the [requested] exemplars”). Given these conclusions, it is now necessary to determine the extent to which evidence of Lentz’s refusal to provide the Court-ordered handwriting exemplars can be used by the government in the course of the new trial. In this regard, the government, in its respective pleadings, argues that it should be entitled to offer evidence of Lentz’s refusal to provide the Court-ordered handwriting exemplars as evidence “tending to prove his guilt of the offense charged.” United States v. Askew, 584 F.2d 960, 963 (10th Cir.1978) (finding that a “comment on defendant’s refusal to comply with a" }, { "docid": "2960342", "title": "", "text": "to have him with you during questioning;” and that “If you cannot afford a lawyer and want one, a lawyer will be appointed for you if and when you go to Court or before a United States Commissioner;” and that he had the right to stop the questioning at any time “until you talk to a lawyer.” Under Miranda, Jackson was entitled to have court-appointed counsel present during \"the interrogation, and did not have to await appointment in court or before the commissioner. Miranda v. Arizona, supra, 384 U.S. at 473, 86 S.Ct. 1602. Jackson could have been misled by the insufficiency of the warning from understanding that he had that right. Consequently, the statement made by Jackson was inadmissible and this error requires reversal of his conviction. Fendley v. United States, 384 F.2d 923, 924 (5th Cir. 1967). We hold also that the handwriting exemplar obtained by the agents following the admission also was inadmissible as “fruit of the poisoned tree.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). We are not persuaded to the contrary by the various federal court decisions upholding the compelling of modeling of clothes, submission to blood tests, use of boots and shoes, and of fingerprinting. True, in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Supreme Court held that taking of exemplars of handwriting did not violate Fifth Amendment rights because the taking did not compel a “communication.” But even fingerprinting evidence is inadmissible if obtained in violation of the constitution. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). See In re Dionisio, 442 F.2d 276 (7th Cir., 1971). For the reasons given, the judgments against Cassell and Rice are affirmed. The judgment against Jackson is reversed. . § 495. Contracts, deeds, and powers of attorney Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining" }, { "docid": "475989", "title": "", "text": "exemplars as ordered is violative of his privilege against self-incrimination and due process of law secured to him by the Fifth Amendment”. Yet he states, “Conceding, as we are bound by Gilbert [Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)] to concede, that compelling a handwriting exemplar, for identification purposes only, and apart from its written content, does not violate the Fifth Amendment privilege against self-incrimination”, he cannot be required to give hand-printing exemplars, because handprinting is susceptible to erroneous identification. We hold that handprinting is within the handwriting rule of Gilbert. The order to produce does not compel any selected phrases, merely exemplars of the alphabet. Rudy is assisted by counsel, and if any unrepresentative exemplar \"is taken, this can be brought out and corrected through the adversary process at trial * * Gilbert, supra at 267, 87 S.Ct. at 1953. All issues in regard to whether or not disputed handprinting is subject to identification may likewise be litigated through the adversary process at trial. Rudy contends further that (1) there was no showing of need for the exemplars, and (2) this court in its supervisory power over the administration of criminal justice should not permit district courts to aid law enforcement officers in the investigative process. The affidavit clearly demonstrates probable cause for Rudy’s arrest and the need for exemplars. Rudy contends that the government, through its investigative processes, could obtain other exemplars of Rudy’s handprinting, and that for the court to require Rudy to produce them is in effect permitting a short-cut method of acquiring evidence. The argument overlooks the fact that it was established before the district court that the government had no exemplars of Rudy’s hand-printing, although his person and apartment had already been lawfully searched. The order of contempt is affirmed. APPENDIX I, Cosby J. Morgan, the undersigned, being duly sworn, depose and say: “That I am a Special Agent of the Federal Bureau of Investigation and while acting in that capacity determined from the Foster City Police Department that Susan Nason, 9 years of age, was reported missing" }, { "docid": "11815077", "title": "", "text": "distantly probative of Hopkins’ guilt. Furthermore, the direct evidence against Hopkins, establishing his guilt beyond a reasonable doubt, was overwhelming. See United States v. Yarbrough, 422 F.2d 1328 (9th Cir. 1970). Hopkins also argues that it was error to admit the statement made by him because he had not been given his Miranda rights. Although the record is silent in regard to whether Hopkins was given his Miranda rights at or prior to his utterance, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). does not preclude the admission of voluntary statements given without any compelling pressures. Accord: Klamert v. Cupp, 437 F.2d 1153 (9th Cir. 1970). Hopkins also claims that the taking of his handwriting exemplars in the absence of counsel violates his Fourth and Fifth Amendment rights. It is well established that the taking of handwriting exemplars from a defendant does not violate his right against self-incrimination and is not an unreasonable search and seizure. See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 247 (1973), and United States v. Roth, 466 F.2d 1111 (9th Cir. 1972). The final contention raised by Hopkins is that his due process rights were violated because he was not granted a preliminary hearing. The record clearly indicates that Hopkins was indicted by a grand jury, thereby eliminating the requirement for ,a preliminary hearing. See Jaben v. United States, 381 U.S. 214, 220, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965), and Austin v. United States, 408 F.2d 808, 810 (9th Cir. 1969). Appellant Jackson raises two issues on this appeal. First, he contends that the trial court erred in not directing a judgment of acquittal on the ground the evidence was insufficient against him. There is no merit to this contention. There is an abundance of evidence in the record to show the involvement of Jackson in the bank robbery. Jackson was observed and identified by an eye witness while he, Jackson, was sitting behind the wheel of his 1960 white Chevrolet" }, { "docid": "23419696", "title": "", "text": "elements of a conspiracy including the one overt act that Bradford rented a motel room on or about September 9, 1965, then under the charge it could find Bradford guilty of the offense of conspiracy. We find no error. The final issue raised by Bradford’s second counsel, i. e., the taking of handwriting exemplars violated Bradford’s Fourth Amendment rights, gives rise to greater concern and requires a remand for a determination of Bradford’s motion to suppress the evidence in light of principles discussed below. As stated above, during the trial a handwriting expert identified Bradford’s handwriting on postal money orders which had been introduced as stolen and falsely endorsed. Known writing specimens were used as a basis of comparison, these specimens having been taken from Bradford on September 28, 1965, by postal inspectors. This evidence was objected to as having been obtained in violation of the Fourth Amendment. The evidence is in conflict as to whether Bradford was under arrest at the time the handwriting samples were taken. Two postal inspectors testified concerning the circumstances. As to whether he was under arrest, the testimony differs. Inspector White testified he was not under arrest at the time but that the specimen was given voluntarily. On the other hand Inspector Brown testified a warrant had been issued for his arrest and that he voluntarily surrendered himself in Mobile on September 28, 1965. It would appear that both inspectors have in mind the same occasion, although it is not completely clear. Inspector Brown was not asked as whether the handwriting sample was voluntarily given. If Bradford was not under arrest, the exemplars were not admissible unless given voluntarily. Cf. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (April 22, 1969). In United States v. Boukater, 5th Cir. 1969, 409 F.2d 537, we recognized that the giving of a Miranda warning supplies strong evidence that consent to a search is voluntarily given. In the present case a cautionary warning was given at the time the samples were taken, but the warning did not come up to Miranda standards. Since we" }, { "docid": "10252343", "title": "", "text": "handwriting is not a personal communication of a defendant but rather “an identifying physical characteristic.” United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); cf., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). As to the relationship of compelled handwriting exemplars to the Fourth Amendment, all doubts as to the application of this Amendment to physical evidence seized from an individual which is merely an element of his physical characteristics were resolved by the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In that case, the Supreme Court established that law enforcement officials may not compel the production of physical evidence, absent a showing of the reasonableness of the seizure, even if that physical evidence is an element of an individual’s physical characteristics such as fingerprint evidence. The Court stated: “ * * * (W)e find no merit in the suggestion * * * that fingerprint evidence, because of its trustworthiness, is not subject to the proscriptions of the Fourth and Fourteenth Amendments. Our decisions recognize no exception to the rule that illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof. The exclusionary rule was fashioned as a sanction to redress and deter overreaching governmental conduct prohibited by the Fourth Amendment. To make an exception for illegally seized evidence which is trustworthy would fatally undermine these purposes. In a similar vein, the Court of Appeals for the Seventh Circuit, in ruling upon the reasonableness of a grand jury subpoena requiring certain individuals to provide voice exemplars, concluded that “(c)ompelling a person to furnish an exemplar of his voice is as much within the scope of the fourth amendment as is compelling him to produce his books and papers.” Dionisio v. United States, 442 F.2d 276, 279 (7th Cir. 1971). As we can see no distinction between fingerprints, voice exemplars, and handwriting exemplars, and because the" }, { "docid": "10252342", "title": "", "text": "or seizure is unreasonable depends upon the particular facts and circumstances of each case, with an exact formula to determine reasonableness being impossible to formulate. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751 (1958), cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958). The narrow issues presented for determination by the Government’s petition are (1) whether a compelled handwriting exampiar comes within the search and seizure provisions of the Fourth Amendment and, if the answer to this question is in the affirmative, (2) whether the ordering of the exemplars would be an unreasonable search and seizure. I The issue of whether the Constitution prohibits the Government from compelling an individual to produce handwriting exemplars or from using such forced exemplars in a criminal trial has come to the fore in recent years. Decisions of the United States Supreme Court clearly indicate that the Fifth Amendment does not prohibit the compelling or using of such exemplars and that handwriting is not a personal communication of a defendant but rather “an identifying physical characteristic.” United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); cf., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). As to the relationship of compelled handwriting exemplars to the Fourth Amendment, all doubts as to the application of this Amendment to physical evidence seized from an individual which is merely an element of his physical characteristics were resolved by the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In that case, the Supreme Court established that law enforcement officials may not compel the production of physical evidence, absent a showing of the reasonableness of the seizure, even if that physical evidence is an element of an individual’s physical characteristics such as fingerprint evidence. The Court stated: “ * * * (W)e find no merit in the suggestion *" }, { "docid": "12436769", "title": "", "text": "were ordered to execute the exemplars in the office of the United States Attorney in Portland. Defendants appeared but refused to complete the exemplars. Their refusals resulted in their being found in contempt by the United States District Court in Oregon. Thereupon, the defendants agreed to execute the exemplars and the finding of contempt was vacated. During trial, the exemplars were admitted into evidence over defendants’ • objections. Securing exemplars of handwriting or handprinting from a defendant does not violate his right against self-incrimination. Gilbert v. California, 388 U.S. 263, 266, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967); United States v. Beshers, 437 F.2d 450, 451 (9th Cir. 1971) (handwriting); United States v. Rudy, 429 F.2d 993, 994 (9th Cir. 1970) (hand-printing). The post-indictment procedures used to obtain these exemplars, which included a court hearing, do not constitute an unreasonable search and seizure in violation of defendants’ Fourth Amendment rights. United States v. De Palma, 414 F.2d 394 (9th Cir. 1969); See Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed. 2d 676 (1969); United States v. Long, 325 F.Supp. 583 (W.D., Mo. 1971). Affirmed. . “Now, there is no question in this case that Mr. Roth is going to be prosecuted and convicted of his activity with regard to the State of Oregon. The Officers sat and listened to the sworn testimony, it was transcribed by the reporter and there is no question that this will occur. “But the question here is : Has he been guilty of violations that fall within the terms of this case, the charges in this case?” . “We know, also, that whatever happens, here, Mr. Kephart and Mr. Roth will be prosecuted, and, undoubtedly, convicted. They don’t have any defense, their own sworn statements convict them of violating State offenses. There’s no question of that matter. “And I submit that it isn’t a situation of someone getting away with something.” . “Chris [Kephart] took the stand, he told you, candidly, that he broke the law. He told you that he knew he was violating state law, and you remember" }, { "docid": "6481743", "title": "", "text": "Government then moved in open court, with supporting affidavits, that Rogers be compelled to execute exemplars in the form objected to by Rogers. The court so ordered and Rogers complied. Rogers then sought an order suppressing use of those exemplars at trial, which motion the court denied. Apparently Rogers did not renew his objection when the exemplars were used at trial, although he reasserts the claim on appeal. Defendant by his actions has not waived his right to raise on appeal his pretrial objection. Whitlow, supra. Rogers does not appear to argue that no exemplar constitutionally could be required of him, and it is clear that such argument could not succeed. No question of right to counsel is raised in this case, and a general Fifth Amendment attack is answered by the Supreme Court’s ruling in Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967): “[A] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the Fifth Amendment’s] protection.” As for Fourth Amendment rights, the Supreme Court has recently held that handwriting exemplars taken alone are outside the scope of the Fourth Amendment’s protection because a person has no reasonable expectation of privacy regarding his handwriting. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), rev’g, 454 F.2d 580 (7th Cir. 1971). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), rev’g in part, aff’g in part, 442 F.2d 276 (7th Cir. 1971). Moreover, there is no suggestion in the record that the exemplars were the fruit of an independently illegal seizure such as that in Davis v. Mississppi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The appellant’s argument that it was error for the trial court to require that exemplars be in the form of allegedly forged words also has been answered by the Supreme Court and is without merit. In Dionisio, the defendant was ordered by the district court to give a" }, { "docid": "22138968", "title": "", "text": "17(g). The Government, citing United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L. Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed. 2d 99 (1973), contends that the district court should not make, or permit the witness to make, any inquiry, or require the Government to make any showing, beyond the facts set forth above. The district court apparently agreed. That holding gives much too broad a compass to the holdings in Dionisio and Mara. Those cases did not involve the district court’s supervisory power over the proper use of its process in a grand jury proceeding, the supervisory power of this court over the manner in which the district court supervises the proper use of its process, or the substantive and procedural law of civil contempt. In Dionisio each grand jury witness was advised that he was a potential defendant in a criminal prosecution. Each was asked to examine a transcript of a lawfully intercepted wire conversation and to read the transcript into a recording device. Dionisio refused to do so, asserting that such a procedure violated his rights under the fourth and fifth amendments. The Government’s petition for enforcement established that the voice exemplars were essential and necessary to the grand jury investigation and that they would be used solely as a standard of comparison in order to determine whether or not the witness was the person whose voice was intercepted. The Seventh Circuit, relying on Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), held that before a grand jury subpoena could issue for such a purpose there must be preliminary showing in open court of probable cause for its issuance. In re Dionisio, 442 F.2d 276 (7th Cir. 1971). Compare the above with United States v. Doe, 457 F.2d 895 (2d Cir. 1972). In Mara the Government sought handwriting exemplars. Its enforcement petition, presented to the court ex parte, and supported by an affidavit of an F.B.I. agent setting forth the basis for seeking the exemplars, established that the handwriting exemplars were" }, { "docid": "475988", "title": "", "text": "Commissioner granted the government a continuance of the hearing to enable the government to seek an order from the district court compelling Rudy to furnish handprinted exemplars. Based upon the complaint and affidavit, the government, on October 20, 1969, filed its motion to compel Rudy to submit and produce handprinted exemplars for examination by the government. The district court, after a hearing, issued its order finding (1) the affidavit was sufficient to support the complaint, (2) the facts set forth in the affidavit contained facts of probable cause for Rudy’s arrest, and (3) ordered Rudy to “furnish the United States handprinting exemplars made by him of the alphabet in the English language in such quantity as is sufficient for expert analysis by the Government”. Rudy refused to comply with the court’s order. An order to show cause in re contempt was issued. Rudy was adjudged in contempt of court for his refusal, and committed until he complied with the order. He is on bond pending this appeal. Rudy contends that the “compelled creation of HANDPRINTING exemplars as ordered is violative of his privilege against self-incrimination and due process of law secured to him by the Fifth Amendment”. Yet he states, “Conceding, as we are bound by Gilbert [Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)] to concede, that compelling a handwriting exemplar, for identification purposes only, and apart from its written content, does not violate the Fifth Amendment privilege against self-incrimination”, he cannot be required to give hand-printing exemplars, because handprinting is susceptible to erroneous identification. We hold that handprinting is within the handwriting rule of Gilbert. The order to produce does not compel any selected phrases, merely exemplars of the alphabet. Rudy is assisted by counsel, and if any unrepresentative exemplar \"is taken, this can be brought out and corrected through the adversary process at trial * * Gilbert, supra at 267, 87 S.Ct. at 1953. All issues in regard to whether or not disputed handprinting is subject to identification may likewise be litigated through the adversary process at trial. Rudy contends further that" }, { "docid": "10252341", "title": "", "text": "written statements and the forging of signatures. The defendants involved in this petition, Herman Holmes, Lee Jackson and Andrew McChristian, are not charged in any of counts 2 through 132 but are named as defendants solely in the conspiracy count. According to the Government’s petition, the sought examplars are essential and necessary to its case and will be used as a standard of comparison in order to determine whether or not each of the defendants is the author of certain writings. As a point of departure, we note that the Fourth Amendment, by its terms and by consistent judicial interpretation, does not prohibit all searches and seizures but only those which are unreasonable. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). A determination of whether a search or seizure is unreasonable depends upon the particular facts and circumstances of each case, with an exact formula to determine reasonableness being impossible to formulate. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751 (1958), cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958). The narrow issues presented for determination by the Government’s petition are (1) whether a compelled handwriting exampiar comes within the search and seizure provisions of the Fourth Amendment and, if the answer to this question is in the affirmative, (2) whether the ordering of the exemplars would be an unreasonable search and seizure. I The issue of whether the Constitution prohibits the Government from compelling an individual to produce handwriting exemplars or from using such forced exemplars in a criminal trial has come to the fore in recent years. Decisions of the United States Supreme Court clearly indicate that the Fifth Amendment does not prohibit the compelling or using of such exemplars and that" }, { "docid": "6481742", "title": "", "text": "was done in United States v. Whitlow, 339 F.2d 975, 980 (7th Cir. 1964). Moreover, the Government did not lead him to believe that further evidence would be forthcoming on the question of interstate movement of the documents. Hence, Rogers has waived his hearsay objection. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500 (1912); Gibson v. Elgin, Joliet & Eastern Railway Co., 246 F.2d 834, 836 (7th Cir.) (relying upon Diaz), cert. den., 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193 (1957); American Rubber Products Corp. v. NLRB, 214 F.2d 47, 51-52 (7th Cir. 1954) (relying upon Diaz); United States v. Rosenberg, 195 F.2d 583, 596 (2d Cir.), cert. den., 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952). II. Handwriting Exemplars After indictment, but before trial, the Government sought a court order requiring that defendant Rogers execute examples of his handwriting. The court so ordered, and Rogers agreed to give examples in any form except the names and addresses used on the forged documents. The Government then moved in open court, with supporting affidavits, that Rogers be compelled to execute exemplars in the form objected to by Rogers. The court so ordered and Rogers complied. Rogers then sought an order suppressing use of those exemplars at trial, which motion the court denied. Apparently Rogers did not renew his objection when the exemplars were used at trial, although he reasserts the claim on appeal. Defendant by his actions has not waived his right to raise on appeal his pretrial objection. Whitlow, supra. Rogers does not appear to argue that no exemplar constitutionally could be required of him, and it is clear that such argument could not succeed. No question of right to counsel is raised in this case, and a general Fifth Amendment attack is answered by the Supreme Court’s ruling in Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967): “[A] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic" }, { "docid": "18158352", "title": "", "text": "crimes for which there is less than probable cause to arrest.” The Court was thus suggesting that where a person has been arrested and presented to a magistrate, the District Court has jurisdiction over such person and may make orders for line-up appearances; orders for handwriting exemplars would seem to stand on the same footing. The suggestion in Adams was adopted in the District of Columbia, where District Judges and magistrates were asked to sign, and did sign, orders that arrested persons appear in line-ups for identification, including line-ups as to crimes other than those for which they were arrested. See, for example, United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d 1287 (1969); Spriggs v. Wilson, 151 U.S.App.D.C. 328, 467 F.2d 382, 383 (1972). Similarly the Ninth Circuit has affirmed the conviction of a defendant for contempt in refusing to pbey an order to give hand-printed exemplars. Jurisdiction to make the order was abundantly shown because defendant had been arrested, a complaint had been filed, and a preliminary hearing had been commenced. United States v. Rudy, 429 F.2d 993 (9th Cir. 1970). 6. On October 7, 1969, a bill (S. 2997) was introduced in the Senate by Senator McClellan. This bill would have authorized an application to a United States District Judge by an investigative officer of any agency of the United States. If the application made the prescribed showing, the District Judge was authorized to issue a subpoena requiring the person named to appear before a magistrate for the obtaining of evidence of identifying physical characteristics, including handwriting. 115 Cong.Rec. 28900. Senator McClellan described the bill as a “new and novel approach” and explained that he wanted it given “close scrutiny and study”, that he was “not necessarily committed to the bill”, that it was based on dicta in the Supreme Court’s opinion in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and that this dicta had suggested that detention to secure identifying evidence might be constitutionally permissible “even though there is no probable cause in the traditional sense”. 115 Cong.Rec. 28896, 28897." }, { "docid": "6481744", "title": "", "text": "outside [the Fifth Amendment’s] protection.” As for Fourth Amendment rights, the Supreme Court has recently held that handwriting exemplars taken alone are outside the scope of the Fourth Amendment’s protection because a person has no reasonable expectation of privacy regarding his handwriting. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), rev’g, 454 F.2d 580 (7th Cir. 1971). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), rev’g in part, aff’g in part, 442 F.2d 276 (7th Cir. 1971). Moreover, there is no suggestion in the record that the exemplars were the fruit of an independently illegal seizure such as that in Davis v. Mississppi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The appellant’s argument that it was error for the trial court to require that exemplars be in the form of allegedly forged words also has been answered by the Supreme Court and is without merit. In Dionisio, the defendant was ordered by the district court to give a voice exemplar in the exact words of a telephone conversation taped by the Government. The Court found this constitutional, stating: It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” . . . Wade (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) and Gilbert definitively refute any contention that the compelled production of the voice ex emplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. Id., at 5 of 410 U.S., 93 S.Ct. at 767, quoting Holt v. United States, 218 U.S." }, { "docid": "12436768", "title": "", "text": "Ochoa v. United States, 167 F.2d 341 (9th Cir. 1948); United States v. Horne, 423 F.2d 630 (9th Cir. 1970); Keeble v. United States, 347 F.2d 951 (8th Cir. 1965). It was not error to refuse the defendants’ requested jury instruction to the effect that double jeopardy was not a bar to successive state and federal prosecutions. The court clarified the matter for the jury by properly instructing them that they were not to be concerned in any way whether a defendant might be subject to prosecution in a state court. The judge who heard what was said and saw what was done is better qualified than we to prescribe adequate remedy. Appellants make a further contention that the court order requiring them to provide handwriting exemplars under threat of contempt citations violated their rights under the Fourth and Fifth Amendments. After indictment, the Government moved for an order compelling the execution of handwriting and handprinting exemplars by each defendant. Following a hearing, the motion was granted and Roth and Kephart, who were in Oregon, were ordered to execute the exemplars in the office of the United States Attorney in Portland. Defendants appeared but refused to complete the exemplars. Their refusals resulted in their being found in contempt by the United States District Court in Oregon. Thereupon, the defendants agreed to execute the exemplars and the finding of contempt was vacated. During trial, the exemplars were admitted into evidence over defendants’ • objections. Securing exemplars of handwriting or handprinting from a defendant does not violate his right against self-incrimination. Gilbert v. California, 388 U.S. 263, 266, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967); United States v. Beshers, 437 F.2d 450, 451 (9th Cir. 1971) (handwriting); United States v. Rudy, 429 F.2d 993, 994 (9th Cir. 1970) (hand-printing). The post-indictment procedures used to obtain these exemplars, which included a court hearing, do not constitute an unreasonable search and seizure in violation of defendants’ Fourth Amendment rights. United States v. De Palma, 414 F.2d 394 (9th Cir. 1969); See Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed." }, { "docid": "22542656", "title": "", "text": "Amendments. The Government then filed separate petitions in the United States District Court to compel Dionisio and the other witnesses to furnish the voice exemplars to the grand jury. The petitions stated that the exemplars were “essential and necessary” to the grand jury investigation, and that they would “be used solely as a standard of comparison in order to determine whether or not the witness is the person whose voice was intercepted . . . .” Following a hearing, the District Judge rejected the witnesses’ constitutional arguments and ordered them to comply with the grand jury’s request. He reasoned that voice exemplars, like handwriting exemplars or fingerprints, were not testimonial or communicative evidence, and that consequently the order to produce them would not compel any witness to testify against himself. The District Judge also found that there would be no Fourth Amendment violation, because the grand jury subpoena did not itself violate the Fourth Amendment, and the order to produce the voice exemplars would involve no unreasonable search and seizure within the proscription of that Amendment: “The witnesses are lawfully before the grand jury pursuant to subpoena. The Fourth Amendment prohibition against unreasonable search and seizure applies only where identifying physical characteristics, such as fingerprints, are obtained as a result of unlawful detention of a suspect, or when an intrusion into the body, such as a blood test, is undertaken without a warrant, absent an emergency situation. E. g., Davis v. Mississippi, 394 U. S. 721, 724-728 (1969); Schmerber v. California, 384 U. S. 757, 770-771 (1966).” When Dionisio persisted in his refusal to respond to the grand jury's directive, the District Court adjudged him in civil contempt and ordered him committed to custody until he obeyed the court order, or until the expiration of 18 months. The Court of Appeals for the Seventh Circuit reversed. 442 F. 2d 276. It agreed with the District Court in rejecting the Fifth Amendment claims, but concluded that to compel the voice recordings would violate the Fourth Amendment. In the court's view, the grand jury was “seeking to obtain the voice exemplars of" }, { "docid": "5739963", "title": "", "text": "are convinced that our holding in this ease is not contrary to the principles laid down by the Supreme Court in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). In Dionisio, a group of grand jury witnesses were advised that they were targets of a grand jury investigation and were subpoenaed to read the transcript of a lawfully intercepted wire conversation into a recording device. Dionisio refused to comply with the subpoena on the grounds that the procedure violated his fourth and fifth amendment rights. At the enforcement hearing, the government stated that the statements were to be used only for comparison to determine if any of the witnesses was the one whose conversation was intercepted, and stated that the voice exemplars were necessary for the investigation. The seventh circuit denied enforcement because the government had not made a preliminary showing of probable cause. See, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The Supreme Court reversed, holding that the fourth amendment prohibition against unreasonable search and seizure does not require a preliminary showing before a grand jury subpoena can be issued for the purpose of obtaining testimony or voice or handwriting exemplars. The issue in United States v. Mara, supra, was similar. Dionisio and Mara were based on constitutional challenges to enforcement of the subpoenas. We are convinced, however, that the preliminary showing we now require is a proper exercise of our supervisory power over the administration of justice in this circuit. Courts have refused to enforce subpoenas for a variety of nonconstitutional reasons. See In re Grand Jury Proceedings (Schofield), supra, at 91. This court has supervisory power over the conduct of grand jury proceedings within this circuit and has the power to fashion rules to further the administration of justice when such rules are necessary. See McNabb v. U. S., 318 U.S. 332, 340-41, 63 S.Ct. 608, 612-13, 87 L.Ed. 819 (1943); Fay v. New York, 332 U.S. 261, 297, 67" }, { "docid": "12436767", "title": "", "text": "upon the same grounds was also denied. In D’Aquino v. United States, 192 F.2d 338, 367 (9th Cir. 1951), this court said, “The trial judge had an opportunity far superior to that afforded us to judge whether the remarks of counsel in the setting in which they were given constituted such misconduct as to require a more emphatic admonition or instruction to the jury to disregard. Our system of jurisprudence properly makes it a matter primarily for the discretion of the trial court to determine whether prejudicial misconduct has occurred. An appellate court will not review the exercise of the trial court’s discretion in such a matter unless the misconduct and prejudice is so clear that it can be said that the trial judge has been guilty of an abuse of discretion.” We find no such abuse of discretion in this case. The record indicates that any possible error was planned and invited by Roth and counsel for each defendant. The defendants were not prejudiced by these invited and peripheral remarks of the prosecutor. See Ochoa v. United States, 167 F.2d 341 (9th Cir. 1948); United States v. Horne, 423 F.2d 630 (9th Cir. 1970); Keeble v. United States, 347 F.2d 951 (8th Cir. 1965). It was not error to refuse the defendants’ requested jury instruction to the effect that double jeopardy was not a bar to successive state and federal prosecutions. The court clarified the matter for the jury by properly instructing them that they were not to be concerned in any way whether a defendant might be subject to prosecution in a state court. The judge who heard what was said and saw what was done is better qualified than we to prescribe adequate remedy. Appellants make a further contention that the court order requiring them to provide handwriting exemplars under threat of contempt citations violated their rights under the Fourth and Fifth Amendments. After indictment, the Government moved for an order compelling the execution of handwriting and handprinting exemplars by each defendant. Following a hearing, the motion was granted and Roth and Kephart, who were in Oregon," } ]

[ { "docid": "15854386", "title": "", "text": "Petitioner argues, how ever, that the presumption is nullified in-this case because the Court made a finding based on the alleged incompetent evidence. While such a finding does appear it is clear that the Court did not act on it. The Court makes no mention of the challenged evidence in its opinion. It. does mention testimony admitted without objection, and to the admission of which, no complaint is made on this appeal, of a sale where petitioner was said to have-sold 100,000 gallons of wine at an over- ceiling price. The admission of the evidence relative to the sale of the 60,000 gallons at an over-ceiling price resulted in no prejudice to appellant. Judgment affirmed. . The estate of Eletta Particelli, Deceased, and Arthur Guerrazzi, Executor, are also petitioners, but, as a matter of convenience, we refer only to petitioner Giulio Particelli. . Prior to 1942 about 80% of all wine produced in California was sold in bulk. The cost of grapes in 1943 prevented wine producers from selling unfinished wines at bulk ceiling prices and it became a common practice for tbe producer to sell his inventory of wine and winery in a package deal for a lump sum price. Producers could thus legally dispose of their wine at prices above the O.P.A. ceilings. . In a recent decision involving an identical issue, the Tenth Circuit accepted the Tax Court’s ultimate finding of fact that the written contract allocating the proceeds from the sale of stock in part to the stock and in part to an agreement not to compete represented the substance and reality of the transaction. Hamlin’s Trust v. Commissioner, 10 Cir., 1954, 209 F.2d 761. . During 1943 three methods were available to winery operators to legally dispose of their unfinished wines without subjecting the sale to O.P.A. ceilings. . The most that Tiara could have obtained for the winery was $45,000 had it sold before the market broke. . It is suggested that any high profits realized by Tiara from the sale of the undervalued wine would be offset by high depreciation deductions based on" } ]

[ { "docid": "16581348", "title": "", "text": "WOODBURY, Circuit Judge. This petition by the Commissioner of Internal Revenue for review of a decision of the Tax Court of the United States presents a single issue on undisputed facts. The taxpayer owned a substantial majority of the stock of two separate and distinct corporations, both of which had earned surpluses in six figures because neither had ever paid any substantial dividends but had retained its earnings for expansion. In November, 1949, the taxpayer sold 83 of his shares in one corporation to the other for $25,000 in order to obtain funds for investment' in a business quite unrelated to that in which either corporation was engaged. He had acquired these shares prior to 1941 for $100 each and his sale price of approximately $301.20 each was based on the estimated book value of the shares at the end of the preceding year plus corporate earnings from that time to the date of the sale. The taxpayer in the joint return which he filed with his wife for 1949 reported his profit from this transaction as a long-term capital gain. The Commissioner did not agree with this tax treatment but, asserting that the “sale” was a sham, insisted that the $25,000 which the taxpayer received for his stock from the purchasing corporation was actually a distribution from its accumulated earnings and profits, i. e. a dividend, which should be reported and taxed as such. By appropriate proceedings the controversy was presented to the Tax Court. It agreed in the main with the taxpayer. It found as a fact from the evidence before it of corporate earning power and net book value that the fair market value of the stock at the time of its sale was not approximately $301.20 per share as claimed by the taxpayer but was in fact $295.00 per share. Then, finding that the sale did not lack economic reality, it adhered to its decisions in John Wanamaker (Phila.) Trustees Common Stock, 1948, 11 T.C. 365, affirmed per curiam, 3 Cir., 1948, 178 F.2d 10, and Cramer, 1953, 20 T.C. 679, which the Commissioner had asked" }, { "docid": "2816864", "title": "", "text": "property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts. * * * See also O'Malley v. Ames, 197 F. 2d 256 (C.A. 8, 1952); Daniel S. McGuire, 44 T.C. 801 (1965). The respondent has chosen to rely on the testimony of one expert, a senior valuation engineer in the employ of the Internal Revenue Service. That expert determined the fair market value 'by reference to the sale of the stock from the estate of the petitioner’s father to the corporation in 1964. Initially, he determined the price per share was $264.74. Next, he determined that the average net income of the corporation, after taxes, for the period 1961 through 1963 was $69,710, and that the average earnings per share outstanding was $19.66. The price/earnings ratio, therefore, amounted to 13.47 to 1.00 as of the date of that sale. From his calculations, he determined that on the same date, the price/earnings ratio for Standard & Poor’s index of 425 industrial stocks was approximately 17.61 to 1.00 and that the price/earnings ratio of the corporation was 76.5 percent of the Standard & Poor’s ratio. He then determined the approximate price/eamings ratio of Standard & Poor’s index for August 31,1966, multiplied that figure by 0.765, and applied the product to the average earnings of the corporation for the period 1963 through 1965. He thus arrived at a value of $310 per share. He used no other method to check his findings and had no independent knowledge of the corporation or the college. The respondent claims reliance on the 1964 sale between the estate and the corporation is justified because the parties negotiated vigorously, dealt at arm’s length, and had knowledge of all the relevant facts. However, the respondent overlooks the fact that the corporation was compelled to enter the transaction. That element of compulsion precludes a determination of value by reference to that sale. Ordinarily, the price at which the same or similar property has changed hands is persuasive evidence of fair market" }, { "docid": "22360365", "title": "", "text": "unrealistically bifurcates the statutory scheme for the trading in mutual fund shares. To be sure, the fund is under an obligation to redeem its shares at the stated price. 15 U. S. C. § 80a-22 (e). But, at the time of the original purchases, both the fund and the purchasers are aware of that duty and both willingly enter into the sale transactions nonetheless. As Judge Winner correctly observed in Hicks v. United States, 335 F. Supp. 474, 481 (Colo. 1971): “Viewing the contract in this light meets every test of the ‘willing buyer-willing seller’ definition usually applied in the determination of market value. The ‘willing buyer’ is the fully informed person who agrees to buy the shares, agreeing at that time to sell them to the fund' — -the only available repurchaser — -at the redemption price. The ‘willing seller’ is the fund which sells the shares at market value plus a load charge, and which agrees to buy the shares back at market less the load charge. That is the market, and it is the only market. It is a market made up of informed buyers and an informed seller, all dealing at arm’s length.” In the context of the Investment Company Act, the redemption price may thus be properly viewed only as the final step in a voluntary transaction between a willing buyer and a willing seller. As a matter of statutory law, holders of mutual fund shares cannot obtain the “asked” price from the fund. That price is never paid by the fund; it is used by the fund when selling its shares to the public — and even then the fund receives merely the net asset value per share from the sale, with the sales load being paid directly to the underwriter. In short, the only price that a shareholder may realize and that the fund — the only buyer — will pay is the redemption price. In the teeth of this fact, Regulation § 20.2031-8 (b) purports to assign a value to mutual fund shares that the estate could not hope to obtain and" }, { "docid": "2816869", "title": "", "text": "the corporation in a strong bargaining position. For those reasons, we are not satisfied that the price agreed upon by them reflects the price that would have been reached by parties bargaining freely in the marketplace. The respondent contends that this situation is analogous to one in which a shareholder acquires stock from a corporation, subject to an option reserved by the corporation to repurchase that stock at a stated price. In such situation, the fair market value does not exceed the option price. Estate of Albert L. Salt, 17 T.C. 92 (1951). However, the respondent is mistaken in his analogy. That case merely held that the value of the stock subject to the option was determined by reference to the option price. Here, the stock to be valued was not subject to any option, and the price paid for the stock subject to the agreement between the petitioner’s father and the corporation has no bearing on what a willing buyer would pay to a willing seller for the stock in the marketplace. Cf. Jack I. LeVant, 45 T.C. 185, 203-205 (1965), affirmed on this issue 376 F. 2d 434 (C.A. 7, 1967); Edith G. Goldwasser, 47 B.T.A. 445, 455-457 (1942), affirmed per curiam 142 F. 2d 556 (C.A. 2, 1944), certiorari denied 323 U.S. 765 (1944) (involving specific shares of “letter” stock). The respondent has introduced no other evidence of value. In these circumstances, the respondent has failed to prove that the fair market value of the corporation stock as of August 31, 1966, was less than $863. In their reply brief, the petitioners asked, for the first time, that we find that the value of the stock was $1,096 per share on the date it was given to the foundation. The petitioners have raised such issue too late. An issue raised for the first time in the reply brief cannot, in fairness to all parties, be considered. Estate of Isabelle M. Sparling, 60 T.C. 330, 349-350 (1973); James G. Maxcy, 59 T.C. 716, 728 (1973); Kate Froman Trust, 58 T.C. 512, 518-519 (1972). Although the respondent vigorously challenged" }, { "docid": "11428054", "title": "", "text": "could not have been paid until part of the selling price had been received. The dividend of $50 per share, declared November 10, 1926, was paid for the most part out of the first money received from the sale of the assets under the contract with Dillon, Read & Co. Cf. Tootle v. Commissioner, supra. In a matter of this hind the whole of the transactions must be viewed together from the beginning to the end, and in this view of the transactions we hold that each of the two distributions in question was distributed “ in partial liquidation of a corporation ” as that term is used in section 201 (c), supra, and defined in subdivision (h) of the same section as being “ one of a series of distributions in complete cancellation or redemption of all ” of the stock of The Broadway Department Store, which “cancellation or redemption” occurred on or about December 24, 1926, at which time all the remaining assets were distributed and the corporation was dis-incorporated by duly constituted proceedings in law. Consideration will now be given to question number (2) as stated in the opening paragraph of this opinion. On or about August 1, 1922, petitioner issued 79,788 shares of its authorized capital stock of 80,000 shares to Arthur Letts and assumed liabilities in the amount of $601,600 in exchange for shares of various corporations enumerated in our findings of fact., Among these shares were 30,000 shares of The Broadway Department Store. What was the cost to petitioner of these 30,000 shares ? It is apparent from the statement attached to petitioner’s return that had it not been for petitioner’s misconception of the applicability of section 204 (a) (8) of the Bevenue Act of 1926, it would have claimed a cost of $4,050,000 or $135 per share; but, thinking that section applicable, it claimed only a cost of $2,982,300, or $99.41 per share (cost to transferor, Arthur Letts). The latter amount was accepted by the respondent as the cost of the stock in his determination of the deficiency. The respondent’s determination is prima" }, { "docid": "22972008", "title": "", "text": "date. This brings us to the consideration of the amount of that cost. On this question the parties are quite far apart, the petitioner contending that the cost was as much as $3,500,000, while the Commissioner argues that it was only $852,500. The Board held that the cost of- the property which was acquired for stock of the petitioner was the fair market value of the stock given in exchange for it, and we agree that this was the correct rule to apply. Rice v. Commissioner (C.C.A.) 47 F.(2d) 99; Pierce Oil Corp. v. Commissioner, 32 B. T. A. 403; MacCallum Gauge Co. v. Commissioner, 32 B. T. A. 544. It, therefore, becomes necessary to determine the fair market value of the petitioner’s stock as of February 19, 1924, the date of the acquisition of the assets. The Board determined this value to be $10 per share, saying : “In this proceeding we note that Foster, McConnell & Co. paid $10 per share for 5,000 shares of stock purchased from the petitioner. It further appears that Foster, McConnell & Co. was able immediately to sell approximately all of the 135,000 shares of stock which it had acquired from the Hazeltine Research Corporation at approximately $10 per share. We think that this is the fair market value of the 'stock as of February 19, 1924, the date when the Hazeltine Research Corporation transferred its assets relating to the neutrodyne inventions to the petitioner. We therefore have found the cost of the total assets acquired by the petitioner from Hazeltine Research Corporation and from Taylor to have been' $1,700,000.” It will be seen that the Board largely based 'its finding upon the price agreed upon between Foster, McConnell & Co. and the petitioner and the price for which that firm sold the shares to its subscribers. Foster testified that the entire block of stock was largely oversubscribed prior to its issuance -on February 19th. It “is thus seen that these sales do not reflect the market price on that date. On the contrary, the fact that the stock was largely over subscribed" }, { "docid": "16581349", "title": "", "text": "transaction as a long-term capital gain. The Commissioner did not agree with this tax treatment but, asserting that the “sale” was a sham, insisted that the $25,000 which the taxpayer received for his stock from the purchasing corporation was actually a distribution from its accumulated earnings and profits, i. e. a dividend, which should be reported and taxed as such. By appropriate proceedings the controversy was presented to the Tax Court. It agreed in the main with the taxpayer. It found as a fact from the evidence before it of corporate earning power and net book value that the fair market value of the stock at the time of its sale was not approximately $301.20 per share as claimed by the taxpayer but was in fact $295.00 per share. Then, finding that the sale did not lack economic reality, it adhered to its decisions in John Wanamaker (Phila.) Trustees Common Stock, 1948, 11 T.C. 365, affirmed per curiam, 3 Cir., 1948, 178 F.2d 10, and Cramer, 1953, 20 T.C. 679, which the Commissioner had asked it to reconsider and overrule, and held that while the difference between its and the taxpayer’s calculations with respect to the fair market value of the stock ($515) constituted a dividend and was taxable as such, the remainder of the sum received from the stock ($24,485) was money derived from the sale of a capital asset, the profit increment of which was taxable at the long-term capital gains rate. It summarized its conclusion by stating: “We, therefore, hold that petitioner is taxable on the receipt of a dividend from Johnson [the short name of the corporation to which the stock was sold] to the extent of $515, the difference between the purchase price and the fair market value of the 83 Webb [the short name of the corporation whose shares were sold by the taxpayer to Johnson] shares on November 18, 1949. The balance of the $25,000 payment represents the proceeds of a sale taxable to petitioner as long-term capital gains.” The Commissioner does not challenge the finding of the Tax Court that the shares" }, { "docid": "22972011", "title": "", "text": "may not furnish evidence of fair market value. Heiner v. Crosby (C.C.A.) 24 F.(2d) 191. In the present case, however, the evidence indicated a large volume of trading in these shares in a market which was fair and open and not distorted by any abnormal conditions or factors. On the very day the transaction was carried through, 4,-500 shares, over 2% per cent, of the total involved, were sold on the Curb Exchange, and the undisputed evidence indicates that the average price on that day was 14% per share. During the entire month of February 36,600 shares, over 21% per cent, of the total, were similarly sold on the Curb at average prices, varying but little from the prices realized on February 19th. In the light of these facts we are of opinion that the fair market value of the shares on February 19th was conclusively established by the evidence of the sales which took place on the Curb Exchange on that day. Hyatt Roller Bearing Co. v. United States (Ct.Cl.) 43 F.(2d) 1008; Metropolitan Life Insurance Co. v. United States, 65 Ct.Cl. 149; Henritze v. Commissioner, 28 B.T.A. 1173. In view of this definite fixing by the public of the fair market value of the stock on the very day in que'stion, we think the evidence of prior arrangements between the promoters and the companies involved, obviously not entered into at arm’s length, cannot furnish the basis for a finding of fair market value. It follows that the finding by the Board of a value of $10 per share has ncr substantial evidence to support it. We accordingly hold that the fair market value on February 19, 1924, of the stock issued by petitioner in exchange for the assets here involved was $14,375 per share. The cost of the assets received by petitioner on that date in exchange for its stock was, therefore, $2,443,750. The Commissioner strongly urges that if the transaction is to be viewed as a whole, and we have so held, it necessarily follows that the cost of the property acquired by the petitioner was only" }, { "docid": "17354058", "title": "", "text": "investment representation, and he would have to sell it at about a 20-percent discount from current market price in order to make such a sale. In his opinion the investment letter Colgate stock received by petitioner was worth only $31% per share on January 15, 1960. It has been held in several cases that the restriction on the sale of investment letter stock reduces the value of the stock below the fair market value of the stock without the restriction, see Edith G. Goldwasser, 47 B.T.A. 445, affirmed per curiam 142 F. 2d 556; Victorson v. Commissioner, 326 F. 2d 264, affirming a Memorandum Opinion of this Court; and several recent Memorandum Opinions of this Court; and we have no doubt that it does to some extent. The difficult question is how much it would depress the fair market value. The only evidence on the subject was the testimony of petitioner’s expert witness that in his opinion it would depress the value 20 percent from the stock exchange price. We are inclined to give considerable weight to this uncontradicted evidence, but we must also give consideration to some other factors involved which we think would tend to lessen the discount attributable to the investment representation. The witness testified that the stock could be sold at any time at a private sale if a purchaser could be found who would give an investment representation himself. The Colgate stock was an average or above average quality stock and it should not have been too difficult to find someone who would be willing to hold the stock for several years. Petitioner appeared to be willing to do this and in fact did not dispose of any of his stock for 3 years after he received it. Petitioner agreed to a negotiated price tag of $38% per share for the stock for purposes of determining how many shares of stock he was to receive, knowing that the restriction attached to the stock. The value of the stock for petitioner’s purposes was apparently not depressed by the restriction. Furthermore, the stock could have been sold" }, { "docid": "12472747", "title": "", "text": "this case involves the allocation of part of the purchase price received by petitioners to covenants signed by them not to compete. Respondent vigorously urges us to adopt a “new rule” of law concerning the treatment of such written covenants. The proposed “rule” would prevent either contracting party thereto or the respondent from subsequently attacking the stated consideration in such agreements unless fraud, duress, or undue influence existed at the time they were signed. Petitioners, on the other hand, contend that the amounts assigned to the covenants do not reflect the real agreement of the parties. We are unwilling to abdicate our judicial responsibility of examining the substance of a transaction. We are not bound by its form. Commissioner v. Court Molding Co., 324 U.S. 331 (1945); and Gregory v. Helvering, 293 U.S. 465 (1935). We are under no obligation to restrict ourselves to the written documents evidencing covenants not to compete, which, of course, would prevent us from arriving at a decision based on all the pertinent facts. It is true, however, that we do not view written agreements lightly, and our decisions generally reflect an adherence to this principle. See Ullman v. Commissioner, 264 F. 2d 305, 308 (C.A. 2, 1959), affirming 29 T.C. 129 (1957), where is was said that— when the parties to a transaction such as this one have specifically set out the covenants in the contract and have there given, them an assigned value, strong proof must be adduced by them in order to overcome that declaration. * * * [Emphasis supplied.] See also Clarence Clark Hamlin Trust, 19 T.C. 718 (1953), affirmed sub nom. Hamlin's Trust v. Commissioner, 209 F. 2d 761 (C.A. 10, 1954); Emmette L. Barran, 39 T.C. 515 (1962), affd. 334 F. 2d 58 (C.A. 5, 1964); Fred Montesi, 40 T.C. 511 (1963), affd. 340 F. 2d 97 (C.A. 6, 1965); and Rogers v. United States, 290 F. 2d 501 (C.A. 9, 1961). Upon the entire record, after carefully considering all of the relevant facts of this transaction, we have reached the conclusion that the petitioners have presented the “strong" }, { "docid": "22360366", "title": "", "text": "is the only market. It is a market made up of informed buyers and an informed seller, all dealing at arm’s length.” In the context of the Investment Company Act, the redemption price may thus be properly viewed only as the final step in a voluntary transaction between a willing buyer and a willing seller. As a matter of statutory law, holders of mutual fund shares cannot obtain the “asked” price from the fund. That price is never paid by the fund; it is used by the fund when selling its shares to the public — and even then the fund receives merely the net asset value per share from the sale, with the sales load being paid directly to the underwriter. In short, the only price that a shareholder may realize and that the fund — the only buyer — will pay is the redemption price. In the teeth of this fact, Regulation § 20.2031-8 (b) purports to assign a value to mutual fund shares that the estate could not hope to obtain and that the fund could not offer. In support of the Regulation, the Government stresses that many types of property are taxed at values above those which could be realized during an actual sale. For example, ordinary corporate stock is valued at its fair market price without taking into account the brokerage commission that a seller must generally pay in order to sell the stock. Respondent does not contend that that approach is inappropriate or that, for example, the value of ordinary stock in an estate should be the market price at the time less anticipated brokerage fees. But § 20.2031-8 (b) operates in an entirely different fashion. The regulation includes as an element of value the commission cost incurred in the hypothetical purchase of the mutual fund shares already held in the decedent’s estate. If that principle were carried over to the ordinary stock situation, then a share traded at $100 on the date of death would be valued, not at $100 as it now is, but at, say, $102, representing the \"value” plus the" }, { "docid": "4829748", "title": "", "text": "redemption or cancellation of the stock, to the extent that it represents a distribution of earnings or profits accumulated after February 28,1913, shall be treated as a taxable dividend. The petitioner contends that all the foregoing steps were parts of an integrated transaction; that from the beginning it was intended that Nedick’s, Inc., could and would purchase 260 shares of its outstanding stock for approximately $1 million; and that the net effect was that on November 15, 1951, Phoenix acquired 640 shares of Nedick’s, Inc., stock for $1,818,715, plus $700,000 previously paid by it, or an aggregate of $2,518,715. It emphasizes its position by stating that Phoenix started out by owning no stock of a corporation worth approximately $3,600,000 and that it ended up owning 640 shares (approximately 92 per cent) of a corporation worth approximately $2,600,000, for which it had paid that amount. It states that had the sellers sold 260 shares of Nedick’s, Inc., stock directly to Nedick’s and 640 shares to Phoenix, no dividend would have resulted to either the sellers or to Phoenix, citing Zenz v. Quinlivan, (C.A. 6, 1954) 213 F. 2d 914, reversing a District Court decision, and Ray Edenfield, 19 T.C. 13, and that this was the net effect of the transaction. Thus the petitioner contends that the cancellation or redemption of the 260 shares was not at such time and in such manner as to make the distribution essentially equivalent to the distribution of a taxable dividend. It cites Fox v. Harrison, (C.A. 7, 1944) 145 F. 2d 521, affirming a District Court decision. The respondent takes the contrary view, citing Wall v. United States, (C.A. 4, 1947) 164 F. 2d 462, affirming a District Court decision; Lowenthal v. Commissioner, (C.A. 7, 1948) 169 F. 2d 694, affirming a Memorandum Opinion of this Court; and Woodworth v. Commissioner, (C.A. 6, 1955) 218 F. 2d 719, affirming a Memorandum Opinion of this Court. Although the transaction might have been cast in the form of a redemption by Nedick’s, Inc., of some of the stock of the old stockholders and a sale of the" }, { "docid": "4829749", "title": "", "text": "to Phoenix, citing Zenz v. Quinlivan, (C.A. 6, 1954) 213 F. 2d 914, reversing a District Court decision, and Ray Edenfield, 19 T.C. 13, and that this was the net effect of the transaction. Thus the petitioner contends that the cancellation or redemption of the 260 shares was not at such time and in such manner as to make the distribution essentially equivalent to the distribution of a taxable dividend. It cites Fox v. Harrison, (C.A. 7, 1944) 145 F. 2d 521, affirming a District Court decision. The respondent takes the contrary view, citing Wall v. United States, (C.A. 4, 1947) 164 F. 2d 462, affirming a District Court decision; Lowenthal v. Commissioner, (C.A. 7, 1948) 169 F. 2d 694, affirming a Memorandum Opinion of this Court; and Woodworth v. Commissioner, (C.A. 6, 1955) 218 F. 2d 719, affirming a Memorandum Opinion of this Court. Although the transaction might have been cast in the form of a redemption by Nedick’s, Inc., of some of the stock of the old stockholders and a sale of the remainder to Phoenix, resulting in no tax liability to Phoenix, it was not done in that way, and the form that the transaction took must prevail. The decision must be made upon the basis of what was actually done rather than upon what might have been done. Wall v. United States, supra; Woodworth v. Commissioner, supra; Woodruff v. Commissioner, (C.A. 5, 1942) 131 F. 2d 429, affirming 46 B.T.A. 727; and Thomas J. French, 26 T.C. 263. And it has been held that the net effect of the distribution rather than the motives and plans of the taxpayer or his corporation is the fundamental question in administering section 115 (g). Flanagan v. Helvering, (C.A.D.C.) 116 F. 2d 937, affirming a Memorandum Opinion of this Court. Here Phoenix purchased the full 900 shares and was obligated under the contract for the full purchase price. From the beginning the transaction was one between Phoenix and the stockholders of JSTedick’s, Inc. Eedick’s, Inc., itself, was not a party. From an examination of the stipulation of facts and all" }, { "docid": "22428910", "title": "", "text": "to determine what adverse effect the disclosures required in the registration statement would have had upon the price. All these factors are compelling to suggest that the real value of the preferred stock is not accurately reflected by the value on the same date of an equivalent amount of the common stock. But further, we think that under the circumstances here the market quotation of the common stock, as stipulated, cannot be accepted as showing the true value of that stock. The quoted price of that stock on the conversion date appears to have been obtained from the purchase price of 100 shares then purchased by Schulte, Sr. Even disregarding his interest in the case, we cannot accept the price on so small a sale as a potential sale price of the entire block of defendants’ converted stock. Moreover, the stock exchange quotations on plaintiff’s common stock for the. period in suit were apparently' grossly inflated. Between the date of conversion and the date when defendants completed their sales, January 19 to May 26, the quoted price increased by over 50 per cent, or almost $30 per share. In the next month it fell by a much greater amount or more than $68 per share. Yet the record is bare of any indication that plaintiff’s asset and liability position underwent any similar change during this period. As a matter of fact, the evidence recited by the Commission in Matter of Ira Haupt & Co., supra, lends credence to Kogan’s contention of market manipulations by the Schulte interests to set the market price. While we cannot accept the facts there found as true in this collateral proceeding, that case does show the nature of the evidence which a trial would bring forth and the debatable nature of any value based upon a figure developed out of the very transactions by the insiders which have led to the secret profits made the property of the corporation by the statute. Under the circumstances the stipulated value developed from the discounted redemption price seems to us intrinsically the sounder base for the computation of" }, { "docid": "22972009", "title": "", "text": "that Foster, McConnell & Co. was able immediately to sell approximately all of the 135,000 shares of stock which it had acquired from the Hazeltine Research Corporation at approximately $10 per share. We think that this is the fair market value of the 'stock as of February 19, 1924, the date when the Hazeltine Research Corporation transferred its assets relating to the neutrodyne inventions to the petitioner. We therefore have found the cost of the total assets acquired by the petitioner from Hazeltine Research Corporation and from Taylor to have been' $1,700,000.” It will be seen that the Board largely based 'its finding upon the price agreed upon between Foster, McConnell & Co. and the petitioner and the price for which that firm sold the shares to its subscribers. Foster testified that the entire block of stock was largely oversubscribed prior to its issuance -on February 19th. It “is thus seen that these sales do not reflect the market price on that date. On the contrary, the fact that the stock was largely over subscribed at the initial price of $10 per share when considered with the fact that the stock opened on the New York Curb on February 13th at 13 and continued to rise thereafter, leads to the conclusion that the initial subscription price of 10 was less than the fair market value of the stock. The Board seems to have ignored the evidence of fair market value furnished by the sales upon the Curb Exchange and in this we think it fell into error. The primary evidence of the fair market value of corporate stock is what willing purchasers pay to willing sellers on the open market, even though the assets of the corporation do not reflect such values. Appeal of Edwin M. Brown, 1 B. T. A. 502; Commissioner v. Robertson (C.C.A.) 75 F. (2d) 540, certiorari denied 295 U.S. 763, 55 S.Ct. 922, 79 L.Ed. 1705. It is true that if market sales are made under peculiar and unusual circumstances, such as sales of small lots, forced sales, and sales in a restricted market, they" }, { "docid": "19218219", "title": "", "text": "either to the covenant not to compete or to the employment of Frazier and Johnson after the sale. We have concluded on the basis of the record before us that no portion of the purchase price was allocable to the covenant not to compete. We have considered, particularly, the fact that no allocation was made to the covenant not to compete in the agreement and that the covenant was not separately bargained for. Delsea Drive-In Theatres, Inc. v. Commissioner, 379 F. 2d 316 (C.A. 3, 1967), aiming per curiam a Memorandum Opinion of this Court; Rinehart Oil News Co. v. Commissioner, 369 F. 2d 692 (C.A. 5, 1966), affirming per curiam a Memorandum Opinion of this Court; and Edward A. Kenney, supra. Moreover, the covenant not to compete was closely related to the sale of goodwill and therefore failed to have any independent sig nificance apart from, merely assuring the effective transfer of that goodwill. Ullman v. Commissioner, 264 F. 2d 305 (C.A. 2, 1959), affirming 29 T.C. 129 (1957); Aaron Michaels, 12 T.C. 17 (1949); Rodney B. Horton, 13 T.C. 143 (1949); and Alfred H. Thoms, supra. We agree with respondent, however, that to the extent that Frazier and Johnson were undercompensated during the period of their employment by Aetna, a portion of the sale price represented compensation to petitioners for services performed as employees. The fact that the contract' expressly provided a salary of $5,000 each to Frazier and Johnson does not preclude our deciding the true value of the services rendered and realistically treating such amounts as ordinary income to the petitioners. Walter J. Roob, 50 T.C. 891 (1968). The respondent has satisfied us that a salary of $5,000, provided in the agreement, was below that which men of Frazier’s and Johnson’s experience and talents should have earned at the executive positions they held with Aetna. We think that $10,000 per annum, each, is a reasonable estimate of the value of the services rendered by Frazier and Johnson during the periods of their employment. Therefore, $5,000 per year for the 5-year period of Johnson’s employment with Aetna," }, { "docid": "2816870", "title": "", "text": "I. LeVant, 45 T.C. 185, 203-205 (1965), affirmed on this issue 376 F. 2d 434 (C.A. 7, 1967); Edith G. Goldwasser, 47 B.T.A. 445, 455-457 (1942), affirmed per curiam 142 F. 2d 556 (C.A. 2, 1944), certiorari denied 323 U.S. 765 (1944) (involving specific shares of “letter” stock). The respondent has introduced no other evidence of value. In these circumstances, the respondent has failed to prove that the fair market value of the corporation stock as of August 31, 1966, was less than $863. In their reply brief, the petitioners asked, for the first time, that we find that the value of the stock was $1,096 per share on the date it was given to the foundation. The petitioners have raised such issue too late. An issue raised for the first time in the reply brief cannot, in fairness to all parties, be considered. Estate of Isabelle M. Sparling, 60 T.C. 330, 349-350 (1973); James G. Maxcy, 59 T.C. 716, 728 (1973); Kate Froman Trust, 58 T.C. 512, 518-519 (1972). Although the respondent vigorously challenged the petitioners’ evidence as to the value of the stock, he was not put on notice that they were going to claim that the value of such stock exceeded $863 per share. Since he was not given notice of that claim, he was deprived of any opportunity to present any objections with respect to it. What is more, the petitioners have failed to establish that the value of the stock actually exceeded $863 per share. They have the burden of proving that the value exceeded that claimed on their return and relied on in the notice of deficiency. Estate of Harry Schneider, 29 T.C. 940, 956-957 (1958); cf. Lovell & Hart, Inc. v. Commissioner, 456 F. 2d 145 (C.A. 6, 1972), affirming per curiam a Memorandum Opinion of this Court. They called two experts who testified with respect to valuation. One expert dealt merely with the value of the land and improvements owned by the corporation. The other expert bad experience in acquiring proprietary educational institutions, and be testified as to tbe value of the" }, { "docid": "2816872", "title": "", "text": "college as a going business. His opinion as to the value of tbe stock was merely that it was worth at least $863 per share, but the petitioner’s claim for a higher value of the stock is based on his determination of the value of the college. The petitioners have offered no expert opinion that the value of the stock exceeded $863 per share. Although they offered evidence as to the value of the assets of the corporation, such evidence is ordinarily unconvincing as to the value of the stock of a corporation. Weber v. Rasquin, 101 F. 2d 62, 64 (C.A. 2, 1939); Williams v. Commissioner, 44 F. 2d 467, 470 (C.A. 8, 1930), affirming 15 B.T.A. 227 (1929). Furthermore, the 238 shares donated by the petitioner were a minority interest, and ordinarily the value of a minority interest must be discounted. Central Trust Co. v. United States, 305 F. 2d 393, 405 (Ct. Cl. 1962); George F. Collins, Jr., 46 T.C. 461, 476 (1966), affirmed on another issue 388 F. 2d 353 (C.A. 10, 1968), vacated and remanded per curiam on another issue 393 U.S. 215 (1968), reversed oír another issue 412 F. 2d 211 (C.A. 10, 1969); Bader v. United States, 172 F. Supp. 833 (S.D. Ill. 1959). The expert gave no consideration to the fact that the 238 shares constituted a minority interest. The petitioners argued, for this purpose, that those shares were transferred as a part of a plan to acquire a controlling interest, but they have convinced us that for other purposes in this case, the acquisition of the shares contributed by the petitioner should be viewed as a separate and independent transaction. In the light of these circumstances, we believe that the petitioners have failed to carry their burden of proving that the value of the stock exceeded that value claimed on their return. Decision w%ll be entered for the petitioners. AH statutory references are to the Internal Revenue Code of 1954, unless otherwise indicated. In the Tax Reform Act of 1969, Congress dealt with contributions of income and appreciated property, and by" }, { "docid": "16613877", "title": "", "text": "their evidentiary value, we are unable to concur in the view that these sales do not accurately reflect the stock’s fair market value. Indeed, since ISS was not organized until late 1967 and the initial rounds of financing were not completed until mid-1968, we find that these sales were not isolated, or in terms of their number, insignificant. Petitioners would, for example, have us ascribe a value of $5 per share on December 22,1969, when the stock was split with a presplit price of $66 and sold in February 1970 for $22. At the time of the fourth round of financing, and throughout 1970, management expectations and projections were favorable, shipments of models 701 and 714 exceeded projections, the corporation was enjoying a healthy position in the market, and funds were needed not so much to insure the company’s survival, but to provide additional working capital demanded by an increasing sales volume. These factors lend substantial support to respondent’s position that the fair market value of ISS stock was the sale price near to the particular exercise date. Petitioners would have us discount their shares to take cognizance of a lack of marketability resulting from investment letter restrictions. Under the facts of this case, we are unable to conclude that such a discount is proper. All of the outstanding shares of ISS were subject to restriction imposed by the SEC and the California Corporation Commission, thus there were no freely transferable shares outstanding. Petitioners' stock would not be less marketable than other ISS shares in general or those sold during the period under consideration in particular, and consequently there would not be a discount applied premised upon these restrictions. See Frank v. Commissioner, 54 T.C. 75, 96 (1970). Petitioners point to Central Trust Co. v. United States, 305 F.2d 393 (Ct. Cl. 1962), where the court did not accept as indicative of fair market value the prices at which isolated sales of a closely held corporation took place. Petitioners’ reliance on that case is misplaced. In Central Trust crucial to the court’s conclusion was a finding that all the sales" }, { "docid": "22972010", "title": "", "text": "at the initial price of $10 per share when considered with the fact that the stock opened on the New York Curb on February 13th at 13 and continued to rise thereafter, leads to the conclusion that the initial subscription price of 10 was less than the fair market value of the stock. The Board seems to have ignored the evidence of fair market value furnished by the sales upon the Curb Exchange and in this we think it fell into error. The primary evidence of the fair market value of corporate stock is what willing purchasers pay to willing sellers on the open market, even though the assets of the corporation do not reflect such values. Appeal of Edwin M. Brown, 1 B. T. A. 502; Commissioner v. Robertson (C.C.A.) 75 F. (2d) 540, certiorari denied 295 U.S. 763, 55 S.Ct. 922, 79 L.Ed. 1705. It is true that if market sales are made under peculiar and unusual circumstances, such as sales of small lots, forced sales, and sales in a restricted market, they may not furnish evidence of fair market value. Heiner v. Crosby (C.C.A.) 24 F.(2d) 191. In the present case, however, the evidence indicated a large volume of trading in these shares in a market which was fair and open and not distorted by any abnormal conditions or factors. On the very day the transaction was carried through, 4,-500 shares, over 2% per cent, of the total involved, were sold on the Curb Exchange, and the undisputed evidence indicates that the average price on that day was 14% per share. During the entire month of February 36,600 shares, over 21% per cent, of the total, were similarly sold on the Curb at average prices, varying but little from the prices realized on February 19th. In the light of these facts we are of opinion that the fair market value of the shares on February 19th was conclusively established by the evidence of the sales which took place on the Curb Exchange on that day. Hyatt Roller Bearing Co. v. United States (Ct.Cl.) 43 F.(2d) 1008; Metropolitan" } ]

[ { "docid": "13829002", "title": "", "text": "Sess. 45 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2767. See also id. at 48, 1978 U.S.Code Cong. & Ad.News at 2770 (procedural protections and appeal rights do not apply to probationary employees). Because Congress could have permitted probationers to challenge removals, but expressly declined to do so, we find it incongruous to suppose that appellee has an implied private right of action under the Civil Service Reform Act to seek judicial review of his dismissal. See INS v. FLRA, supra, 709 F.2d at 728. It is the province of other branches, and not the courts, to determine whether probationary employees should be granted the right to judicial review of adverse actions against them. See Bush, supra, -U.S. at---, 103 S.Ct. at 2415-17. Congress has decided against judicial review in the Reform Act, and we are not free to disturb that judgment. IV The trial court wrongly concluded, however, that it possessed jurisdiction over that portion of Connolly’s claim which was predicated upon the first amendment. Although we recognize that if “a claim falls within the terms of the Tucker Act, the United States has presumptively consented to suit,” see United States v. Mitchell,U.S. -, -, 103 S.Ct. 2961, 2967, 77 L.Ed.2d 580 (1983), the basic issue is whether the first amendment “can fairly be interpreted as mandating compensation for the damages sustained.” See id.; United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976); Featheringill v. United States, 217 Ct.Cl. 24, 32 (1978); Eastport Steamship Co. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967). We agree with the Court of Claims that the first amendment, standing alone, cannot be so interpreted to command the payment of money. Featheringill, supra, 217 Ct.Cl. at 32-33; see Clark v. United States, No. 658-80C, slip op. at 7-8 (Ct.Cl. Nov. 6, 1981); Mullins v. United States, No. 240-81C, slip op. at 3 (Ct.Cl. Oct. 30,1981). Like the due process clause of the fifth amendment, the literal terms of the first amendment neither explicitly nor implicitly obligate the federal government to pay" } ]

[ { "docid": "21079838", "title": "", "text": "any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In order for this court to have jurisdiction over plaintiffs complaint, the Tucker Act, as amended, 28 U.S.C.A. § 1491 (West 1994 & Supp.1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948. “[I]n order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.”" }, { "docid": "9511864", "title": "", "text": "in the district court. Id. § 1316.76(a). If no claims of ownership are filed within the twenty-day notice period, the agency administratively forfeits the property to the United States. Id. § 1316.77(a). In the present ease, it is apparently undisputed that the DEA published a notice and that, at some point, the plaintiff filed a claim of ownership of the property. The DEA treated the claim as untimely filed, however, and proceeded to administratively forfeit the seized property to the United States. Upon the DEA’s rejection of her claim of ownership, the plaintiff instituted the present action seeking the return of her alleged property or compensation for its value. Discussion The United States Court of Federal Claims may only render decisions in cases against the Government where Congress has specifically and unambiguously waived sovereign immunity and provided for subject matter jurisdiction in the court. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969). The Tucker Act, 28 U.S.C. § 1491 (1994), waives the Government’s traditional immunity from suit, and gives the Court of Federal Claims jurisdiction to hear claims against the Government in a limited set of circumstances. Such claims include those “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id. § 1491(a)(1). Although the Tucker Act operates as a waiver of sovereign immunity, it is well-settled that the Act “does not create any substantive right enforceable against the United States for money damages____ The Act merely confers jurisdiction in the event that a substantive right to sue the Government already exists.” Berry v. United States, 27 Fed.Cl. 96,100 (1992) (citing United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976)). See also Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 605-07, 372 F.2d 1002, 1007-09 (1967);" }, { "docid": "11057121", "title": "", "text": "traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” Saraco v. United States, 61 F.3d 863, 864 (Fed.Cir.1995) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), cert. denied, 517 U.S. 1166, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996)). The Tucker Act, however, merely confers jurisdiction on the United States Court of Federal Claims; “it does not create any substantive right enforceable against the United States for money damages.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980) (quoting United States v. Testan, 424 U.S. at 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)); see also Saraco v. United States, 61 F.3d at 865 (citing Zumerling v. Devine, 769 F.2d 745, 749 (Fed.Cir.1985) (citing United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976))); see also United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Mitchell, 445 U.S. at 538, 100 S.Ct. 1349. For claims founded on a statute or regulation to be successful, “the provisions relied upon must contain language which could fairly be inter preted as mandating recovery of compensation from the government.” United States v. Testan, 424 U.S. at 400, 96 S.Ct. 948 (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002 (1967)); see also Doe v. United States, 100 F.3d 1576, 1579 (Fed.Cir.1996), reh’g denied (1997). I. 28 U.S.C. § 1500 In support of its motion to dismiss, the defendant raises the issue of the jurisdictional bar of 28 U.S.C. § 1500, which provides that the United States Court of Federal Claims shall not have jurisdiction over any claim the plaintiff has pending against the United States in another court. Defendant contends that at the time the plaintiff filed his complaint in the United States Court of Federal" }, { "docid": "21134599", "title": "", "text": "liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948. “[I]n order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990) (citations omitted); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citing United States v. Testan, 424 U.S. at 400, 96 S.Ct. 948 (quoting Eastport S. S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967))); Duncan v. United States, 229 Ct.Cl. 120, 138, 667 F.2d 36, 47 (1981), cert. denied, 463 U.S. 1228, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983). The defendant argues that the alleged cardinal change/breach of contract claim, set forth in Kentucky’s September 17, 1992 letter to the contracting officer, is not a proper CDA claim because the letter does not qualify as a written demand seeking, as a matter of" }, { "docid": "10015201", "title": "", "text": "unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, this Act waives sovereign immunity to allow jurisdiction over claims (1) founded on an express or implied contract with the United States; (2) for a refund from a prior payment made to the government; or (3) based on federal constitutional, statutory, or regulatory law. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-06, 372 F.2d 1002 (1967)); see also Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999); Stinson Lyons & Bustamante, P.A. v. United States, 33 Fed.Cl. 474, 478 (1995), aff'd, 79 F.3d 136 (Fed.Cir.1996). A waiver of traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” Saraco v. United States, 61 F.3d 863, 864 (Fed.Cir.1995) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)), cert. denied, 517 U.S. 1166, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996). The Tucker Act, however, merely confers jurisdiction on the United States Court of Federal Claims; “it does not create any substantive right enforceable against the United States for money damages.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (quoting United States v. Testan, 424 U.S. at 398-99, 96 S.Ct. 948 (1976)), reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); see also Saraco v. United States, 61 F.3d at 865 (citing Zumerling v. Devine, 769 F.2d 745, 749 (Fed.Cir.1985) (citing United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948 (1976))); see also United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Mitchell, 445 U.S. at 538, 100 S.Ct. 1349. For claims founded on the Constitution, a statute or a regulation to be successful, “the provisions relied upon must contain language which could fairly" }, { "docid": "21134598", "title": "", "text": "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conelusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In order for this court to have jurisdiction over the plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491 (1994), as amended, 28 U.S.C.A. § 1491 (West Supp.1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan," }, { "docid": "5489248", "title": "", "text": "this court’s jurisdiction. 28 U.S.C. § 1491 (1994). The Tucker Act does not create a substantive right to recover money damages in this court; rather, it allows recovery for claims founded on the Constitution, an act of Congress, regulation promulgated by the executive department, or any express or implied contract with the United States. 28 U.S.C. § 1491(a)(1); Ky. Bridge & Dam, Inc. v. United States, 42 Fed.Cl. 501, 516 (1998) (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984)). A statute, regulation, or constitutional provision provides a substantive right only if it “‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” Testan, 424 U.S. at 400, 96 S.Ct. at 955 (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009, 178 Ct. Cl. 599 (1967); citing Mosca v. United States, 417 F.2d 1382, 1386, 189 Ct.Cl. 283, 290 (1969), cert. denied, 399 U.S. 911, 90 S.Ct. 2197, 26 L.Ed.2d 565 (1970)). If the provision is found to be “money-mandating,” the party need not rely upon a waiver of sovereign immunity beyond the Tucker Act. See Huston v. United States, 956 F.2d 259, 261 (Fed.Cir.1992) (citing Mitchell, 463 U.S. at 218,103 S.Ct. at 2968). c. Jurisdiction over tax refund claims It is well-established that this court must determine, for itself, whether it has jurisdiction to entertain a tax refund suit. Abruzzo v. United States, 24 Cl.Ct. 668, 670 (1991) (citing Berdick v. United States, 222 Ct.Cl. 94, 99, 612 F.2d 533, 536 (1979); Rocovich v. United States, 18 Cl.Ct. 418, 421 (1989), aff'd, 933 F.2d 991 (Fed.Cir.1991); Lambropoulos v. United States, 18 Cl.Ct. 235, 236 n. 2 (1989)). This court generally has jurisdiction over tax refund actions pursuant to the Tucker Act. 28 U.S.C. § 1491(a)(1)." }, { "docid": "17679263", "title": "", "text": "§ 1491 (1994), as amended 28 U.S.C.A. § 1491 (West Supp. 1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the. United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992,100 S.Ct. 2979, 64 L.Ed.2d 849 (1980) (Mitchell I); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948. “[I]n order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990) (citations omitted); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II) (citing United States v. Testan, 424" }, { "docid": "6495779", "title": "", "text": "Jurisdiction Originally enacted in 1887, the Tucker Act, 28 U.S.C. § 1491 (1988 & Supp. IV 1994), serves as the primary jurisdictional statute governing the type of claims reviewable by this court. United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 952-53, 47 L.Ed.2d 114 (1976). This statute provides as follows: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States. 28 U.S.C. § 1491(a)(1). Although this statute confers threshold subject matter jurisdiction on this court by waiving the sovereign immunity of the United States under certain conditions, it does not, ipso facto, confer a substantive right on parties to recover money damages from the government. Testan, 424 U.S. at 398, 96 S.Ct. at 953; United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983) (“Mitchell II”); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980) (“Mitchell I ”). It is well established, therefore, that such a substantive right to a payment of money from the government must be made with specificity and arise from either (1) an express or implied contract with the United States, (2) a prior payment made to the government for which a plaintiff seeks a refund, or (3) a federal constitutional, statutory, or regulatory law which “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” Testan, 424 U.S. at 400, 402, 96 S.Ct. at 954, 955; Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967). It is this latter basis upon which plaintiff asserts this court’s jurisdiction over its claim. In short, Stinson contends that, coupled with § 1491, the FCA serves as a federal statute specifically mandating the payment of remedial compensation to qui tam relators such as itself, where the government has recovered proceeds in an “alternate remedy”" }, { "docid": "1546114", "title": "", "text": "judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, this Act waives sovereign immunity to allow jurisdiction over claims (1) founded on an express or implied contract with the United States; (2) for a refund from a prior payment made to the government; or (3) based on federal constitutional, or statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114, reh’g denied, 425 U.S. 957, 96 S.Ct. 1736, 48 L.Ed.2d 202 (1976) (citing Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-06, 372 F.2d 1002, 1009 (1967)); see also Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999); Stinson, Lyons & Bustamante, P.A. v. United States, 33 Fed.Cl. 474, 478 (1995), aff'd, 79 F.3d 136 (Fed.Cir.1996). A waiver of traditional sovereign immunity cannot be implied but must be “unequivocally expressed.” INS v. St. Cyr, 533 U.S. 289, 299 n. 10, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); Ins. Co. of the West v. United States, 243 F.3d 1367, 1372 (Fed.Cir.), reh’g and reh’g en banc denied (2001); Saraco v. United States, 61 F.3d 863, 864 (Fed.Cir.1995) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)), cert. denied, 517 U.S. 1166, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996). The Tucker Act, however, merely confers jurisdiction on the United States Court of Federal Claims, “‘it does not create any substantive right enforceable against the United States for money damages.’ ” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (quoting United States v. Testan, 424 U.S. at 398-99, 96 S.Ct. 948), reh’g denied," }, { "docid": "6954837", "title": "", "text": "denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. at 953. Stated otherwise, “in order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983) (Mitchell II) (citing United States v. Testan, 424 U.S. at 400, 96 S.Ct. at 954 (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967))); Duncan v. United States, 229 Ct.Cl. 120, 138, 667 F.2d 36, 47 (1981), cert. denied, 463 U.S. 1228, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983). This court’s predecessor, the United States Court of Claims, articulated the jurisdiction of this court, pursuant to 28 U.S.C. § 1491, in Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002 (1967), as follows: Section 1491 of Title 28 of the United States Code allows the Court of Claims to entertain claims against the United States ‘founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort’. But it is not every claim involving or invoking the Constitution, a federal statute, or a regulation which is cognizable here. The claim must, of course, be for money. Id. at 605, 372 F.2d 1002 (citations omitted). In the above-captioned case, defendant has moved to dismiss the complaint for lack of jurisdiction, asserting" }, { "docid": "17693503", "title": "", "text": "Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction in the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980) (Mitchell I); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. at 953. “[I]n order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990) (citations omitted); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983) (Mitchell II) (citing United States v. Testan, 424 U.S. at 400, 96 S.Ct. at 954 (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967))); Duncan v. United States, 229 Ct.Cl. 120, 138, 667 F.2d 36, 47 (1981)," }, { "docid": "21079839", "title": "", "text": "damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948. “[I]n order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990) (citations omitted); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citing United States v. Testan, 424 U.S. at 400, 96 S.Ct. 948 (quoting Eastport S. S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967))); Duncan v. United States, 229 Ct.Cl. 120, 138, 667 F.2d 36, 47 (1981), cert. denied, 463 U.S. 1228, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983). As a threshold matter, pursuant to the money-mandating provisions of the Military Pay Act, 37 U.S.C. § 204 (1994 & Supp. II 1996), the United States Court of Federal Claims generally possesses jurisdiction when enlisted members are involuntarily separated prior to the end of their terms of enlistment and seek reinstatement and back pay. See Sargisson v. United States, 913 F.2d 918, 920 (Fed.Cir.1990), reh’g denied; West v. United States, 35 Fed.Cl. 226, 229-30 (1996); Wyatt v. United States, 23 Cl.Ct. 314, 318 (1991). The record in the" }, { "docid": "21526390", "title": "", "text": "Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); State of Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Moreover, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981). In order for this court to have jurisdiction over plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491 (1988 and Supp.1993), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act merely confers jurisdiction on the Court of Federal Claims; it does not create a substantive right enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1350-51, 63 L.Ed.2d 607 (1980) (Mitchell I); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed. Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). The individual claimants, therefore, must look beyond the jurisdictional statute for a" }, { "docid": "6954836", "title": "", "text": "that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act, however, merely confers jurisdiction on the Court of Federal Claims; it does not create a substantive right enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980) (Mitchell I); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. at 953. Stated otherwise, “in order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983) (Mitchell II) (citing United States v. Testan, 424 U.S. at 400, 96 S.Ct. at 954 (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967))); Duncan v." }, { "docid": "3740071", "title": "", "text": "plaintiffs’ complaint, the Tucker Act, as amended, 28 U.S.C. § 1491 (1994 & Supp. II 1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948. “[I]n order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990) (citations omitted); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citing United States v. Testan," }, { "docid": "17693502", "title": "", "text": "plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In order for this court to have jurisdiction over plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491, requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction in the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980) (Mitchell I); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally" }, { "docid": "21526391", "title": "", "text": "United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1350-51, 63 L.Ed.2d 607 (1980) (Mitchell I); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed. Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. at 953. Stated otherwise, “in order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475,479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983) (Mitchell II) (citing United States v. Testan, 424 U.S. at 400, 96 S.Ct. at 954 (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967))); Duncan v. United States, 229 Ct.Cl. 120, 138, 667 F.2d 36, 47 (1981), cert. denied, 463 U.S. 1228, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983). This court’s predecessor, the United States Court of Claims, articulated the jurisdiction of this court, pursuant to 28 U.S.C. § 1491, in Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d" }, { "docid": "1315728", "title": "", "text": "have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, this Act waives sovereign immunity to allow jurisdiction over claims (1) founded on an express or implied contract with the United States; (2) for a refund from a prior payment made to the government; or (3) based on federal constitutional, or statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), reh’g denied, 425 U.S. 957, 96 S.Ct. 1736, 48 L.Ed.2d 202 (1976) (citing Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-06, 372 F.2d 1002, 1009 (1967)); see also Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999); Stinson, Lyons & Bustamante, P.A. v. United States, 33 Fed.Cl. 474, 478 (1995), aff'd, 79 F.3d 136 (Fed.Cir.1996). A waiver of traditional sovereign immunity cannot be implied but must be “unequivocally expressed.” INS v. St. Cyr, 533 U.S. 289, 299 n. 10, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); Ins. Co. of the West v. United States, 243 F.3d 1367, 1372 (Fed.Cir.), reh’g and reh’g en banc denied (2001); Saraco v. United States, 61 F.3d 863, 864 (Fed.Cir.1995) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)), cert. denied, 517 U.S. 1166, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996). The Tucker Act, however, merely confers jurisdiction on the United States Court of Federal Claims, “‘it does not create any substantive right enforceable against the United States for money damages.’ ” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (quoting United States v. Testan, 424 U.S. at 398-99," }, { "docid": "11057120", "title": "", "text": "Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, this Act waives sovereign immunity to allow jurisdiction over claims (1) founded on an express or implied contract with the United States; (2) for a refund from a prior payment made to the government; or (3) based on federal constitutional, statutory, or regulatory law. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-06, 372 F.2d 1002 (1967)); see also Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999); Stinson, Lyons & Bustamante, P.A. v. United States, 33 Fed.Cl. 474, 478 (1995), aff'd, 79 F.3d 136 (Fed.Cir.1996). A waiver of traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” Saraco v. United States, 61 F.3d 863, 864 (Fed.Cir.1995) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), cert. denied, 517 U.S. 1166, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996)). The Tucker Act, however, merely confers jurisdiction on the United States Court of Federal Claims; “it does not create any substantive right enforceable against the United States for money damages.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980) (quoting United States v. Testan, 424 U.S. at 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)); see also Saraco v. United States, 61 F.3d at 865 (citing Zumerling v. Devine, 769 F.2d 745, 749 (Fed.Cir.1985) (citing United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976))); see also United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct." } ]

[ { "docid": "23260209", "title": "", "text": "See Sutherland v. Reno, 228 F.3d 171, 173-74 (2d Cir.2000) (citing Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000)). Accordingly, because the INA defines an “aggravated felony” in § 1101(a)(43)(F) by reference to a “crime of violence” in 18 U.S.C. § 16, we review de novo the question whether NYVTL § 1192.3 constitutes a “crime of violence” that, in turn, constitutes a deportable “aggravated felony” under the INA. I. Application of Categorical Analysis to “Crime of Violence” Under the language of the statute, a § 16(b) “crime of violence” is analyzed “by its nature.” We believe that this language compels an analysis that is focused on the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation. See United States v. Velazquez-Overa, 100 F.3d 418, 420-21 (5th Cir.1996) (citing Taylor v. United States, 495 U.S. 575, 110 5.Ct. 2143, 109 L.Ed.2d 607 (1990)); United States v. Aragon, 983 F.2d 1306, 1312 (4th Cir.1993); United States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir.1992). Under this approach, commonly referred to as the “categorical approach” to criminal statutory interpretation, “the singular circumstances of an individual petitioner’s crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant[.]” Michel v. INS, 206 F.3d at 270 (Calabresi, J., dissenting); see also Tapia Garcia v. INS, 237 F.3d 1216, 1221-22 (10th Cir.2001) (citations omitted). In this Circuit, we have long endorsed categorical analyses of criminal statutes in the context of deportation orders for crimes of moral turpitude. See United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir.1939). Our decisions in this area stand for the proposition that the offense, judged from an abstracted perspective, must inherently involve moral turpitude; in other words, any conduct falling within the purview of the statute must by its nature entail moral turpitude. See id. (holding that because defendant could be convicted under relevant statute for crimes not involving moral turpitude, statute could not form basis for order of deportation based upon commission of crime of moral turpitude);" } ]

[ { "docid": "22173857", "title": "", "text": "not constitute a crime of violence under 18 U.S.C. § 16(b), and therefore a court could not consider it as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(l)(A). Because § 16(b) contains the language “by its nature” to modify “felony”, this Court held that it was required to apply a categorical approach in determining whether an offense is a crime of violence. Chapa-Garza, 243 F.3d at 924. Thus, this Court examines “whether a particular defined offense, in the abstract, is a crime of violence,” regardless of the actual underlying facts of the case. Id. Accordingly, to be a crime of violence, § 16(b) requires “recklessness as regards the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the offense.” Id. at 927 (emphasis added). The Chapa-Garza court noted that, because the offender commits the Texas crime of felony DWI when he begins operating a vehicle while intoxicated after two prior DWI convictions, intentional force against the person or property of another is virtually never used to commit the offense. Id. Consequently, this Court held that felony DWI is not a crime of violence as contemplated by § 16(b). Chapa-Garza relied on United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.1996), for the proposition that § 16(b)’s “in the course of committing the offense” clause means that physical force may be used to carry out the offense, rather than the broader interpretation under U.S.S.G. § 4B1.2(a) that there is a risk that physical injury could be a result of the offense. In Velazquez-Overa, this Court held that the crime of indecency with a child involving sexual contact was a crime of violence as defined in § 16(b) because, in the course of committing the offense, it was likely that it would be necessary to use physical force to “ensure the child’s compliance” and “perpetrate the crime.” Chapa-Garza, 243 F.3d at 927 (citing Velazquez-Overa, 100 F.3d at 422). Possession of a concealed dagger is not analogous to such an offense. Because an offender perpetrates the crime once he takes" }, { "docid": "23595549", "title": "", "text": "charge of conviction is reduced from murder to manslaughter in the first degree. See DeLuca v. Lord, 77 F.3d 578, 585 (2d Cir.1996) (citing People v. Casassa, 49 N.Y.2d 668, 675, 427 N.Y.S.2d 769, 772-73, 404 N.E.2d 1310 (1980)). D. The Categorical Approach to Identifying Crimes of Violence under'18 U.S.C. § 16 1. Categorical Analysis In the context of removal proceedings, this court has ruled that a “categorical approach” must be used to determine whether an offense is a “crime of violence” within the meaning of 18 U.S.C. § 16(b). Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001). Under this categorical approach, a reviewing court must focus on “the intrinsic nature of the offense,” rather than on “ ‘the singular circumstances of an individual petitioner’s crimes[,] ... and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.’ ” Id. (quoting Michel v. INS, 206 F.3d at 270 (Calabresi, J., dissenting)); see also Ming Lam Sui v. INS, 250 F.3d 105, 117-18 (2d Cir.2001) (noting that reviewing court “cannot go behind the offense as it was charged to reach [its] own determination as to whether the underlying facts amount to one of the enumerated crimes”). We have described the categorical approach as “not only consistent with both precedent and sound policy” but, also, as “necessary in view of the language of the applicable statutes.” Jobson v. Ashcroft, 326 F.3d at 372 (internal quotation marks omitted). Thus, it is the language of 18 U.S.C. § 16(b), which defines a crime of violence “by its nature,” that “ ‘compels’ a reviewing court to focus ‘on the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.’” Id. (quoting Dalton v. Ashcroft, 257 F.3d at 204). 2. Divisible Penal Statutes a. Identifying Divisible Penal Statutes Despite this general prohibition against inquiry into the factual circumstances of the crime underlying a removal order, a limited review of the record may be warranted where the statute of conviction is divisible. A criminal statute is “divisible” if it encompasses multiple categories of offense conduct," }, { "docid": "13128852", "title": "", "text": "force against the person or property of another, or (B) 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. § 924(c). In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the Supreme Court considered whether an offense is a “crime of violence” under 18 U.S.C. § 16, a provision which contains virtually identical language to § 924(c)(3). The Supreme Court instructed reviewing courts “to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” Id. at 7, 125 S.Ct. 377. We too have employed this “categorical approach” when determining whether a particular offense is a crime of violence under § 16. See, e.g., Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.8d 159, 166 (2d Cir.2006); Jobson v. Ashcroft, 326 F.3d 367, 371 (2d Cir.2003); Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001); Ming Lam Sui v. INS, 250 F.3d 105, 117-18 (2d Cir.2001). Under this categorical approach, we focus on the intrinsic nature of the offense rather than on the circumstances of the particular crime. Consequently, only the minimum criminal conduct necessary for conviction under a particular statute is relevant. Vargas-Sarmiento, 448 F.3d at 166; see also Ming Lam Sui, 250 F.3d at 117-18 (noting that the reviewing court “cannot go behind the offense as it was charged to reach [its] own determination as to whether the underlying facts amount to one of the enumerated crimes”) (citation omitted). Applying this categorical approach, we now consider whether §§ 242 and 241 are crimes of violence for purposes of § 924(c). Cf. United States v. Patino, 962 F.2d 263, 267 (2d Cir.1992) (applying principles developed under the Bail Reform Act, 18 U.S.C. § 3156(a)(4), to the question of whether a crime is a “crime of violence” under § 924(c)(3) because the definition of “crime of violence” in the two statutes is “virtually identical”). We first turn to Acosta’s contention that he was improperly" }, { "docid": "22822634", "title": "", "text": "to a child often stems from an omission rather than an intentional use of force, such offense is not, by its nature, a crime of violence within the meaning of 18 U.S.C. § 16(b). We agree. In United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), this court held that the Texas felony offense of driving-while intoxicated does not constitute a crime of violence under 18 U.S.C. § 16(b). Id. at 927. In reaching this conclusion, the Chapa-Garza court emphasized that: [T]he words “by its nature” [in 18 U.S.C. § 16(b) ] require us to employ a categorical approach when determining whether an offense is a crime of violence. This means that the particular facts of the defendant’s prior conviction do not matter, e.g.[,] whether the defendant actually did use force against the person or property of another to commit the offense. The proper inquiry is whether a particular defined offense, in the abstract, is a crime of violence under 18 U.S.C. § 16(b). Id. at 924 (internal citation omitted). Other decisions by this court likewise stress this categorical approach. See, e.g., United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.2001) (noting that “the statutory phrase ‘by its nature’ compels us to look only at the inherent nature of the offense to determine whether the offense constitutes a crime of violence”) (internal citation and quotation omitted); United States v. Velazquez-Overa, 100 F.3d 418, 420-21 (5th Cir.1996) (“[Ejither a crime is violent ‘by its nature’ or it is not. It cannot be a crime of violence ‘by its nature’ in some cases, but not others, depending on the circumstances.”). We further clarified in Chapar-Garza that a crime of violence as defined by 18 U.S.C. § 16(b) must involve “the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the offense.” 243 F.3d at 927. Utilizing the categorical approach endorsed by this court in Chapa-Garza and other cases, we focus only on the offense of injury to a child as defined under Texas law and not on" }, { "docid": "15089243", "title": "", "text": "Jobson v. Ashcroft, 326 F.3d 367, 371 (2d Cir.2003); Dalton v. Ashcroft, 257 F.3d 200, 203-04 (2d Cir.2001). We retain residual jurisdiction, however, to determine whether Chery has been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), as defined by 18 U.S.C. § 16. Jobson, 326 F.3d at 371 (citations omitted). Because the BIA is charged with administering the Immigration and Nationality Act (“INA”), its interpretation of the INA’s provisions must be granted deference. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, we review its interpretation of federal or state criminal statutes de novo. See Dalton, 257 F.3d at 203; Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000). This case requires us to decide whether the state crime of sexual assault in the second degree under § 53a-71 is a “crime of violence” as defined in the federal criminal code, 18 U.S.C. § 16. As such, we review de novo whether Conn. Gen.Stat. § 53a-71 is a crime of violence. See Dalton, 257 F.3d at 203. III. Categorical Approach This Court follows what has been termed a “categorical approach” to determine whether an offense is a crime of violence within the meaning of § 16(b). Jobson, 326 F.3d at 371; Dalton, 257 F.3d at 204. Under this rubric, we focus on the “intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Dalton, 257 F.3d at 204. Accordingly, “only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.” Id. (internal quotation marks omitted). IV. Crime of Violence The risk of physical force in § 16(b) “concerns the defendant’s likely use of violent force as a means to an end.” Jobson, 326 F.3d at 873. We have found that § 16(b) “refers only to those offenses in which there is a substantial likelihood that the perpetrator will intentionally employ physical force.” Dalton, 257 F.3d at 208 (internal quotation marks omitted). In finding that second-degree manslaughter under N.Y. Penal Law § 125.15 (requiring only" }, { "docid": "13303367", "title": "", "text": "go behind the offense as it was charged to reach our own determination as to whether the underlying facts amount to one of the enumerated crimes.” Sui, 250 F.3d at 117-18 (citation omitted). The categorical approach is not only “consistent with both precedent and sound policy,” id. at 116, it is also necessary in view of the language of the applicable statutes. Section 16(b) itself defines a crime of violence “by its nature.” In Dalton, we held that this language specifically “compels” a reviewing court to focus “on the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Dalton, 257 F.3d at 204. In Sui, we similarly concluded that the underlying facts of petitioner’s offense, as distinct from the elements of the crime, could not be examined to determine whether the offense was an aggravated felony. See Sui, 250 F.3d at 117-18. We reasoned that under 8 U.S.C. § 1227(a)(2)(A)(iii), “deportability is premised on the existence of a conviction,” not on an inquiry into a particular defendant’s conduct. Id. at 116 n. 10, 116-17 (citation and internal quotation marks omitted). C. Application of the Categorical Approach Under the categorical approach, the question before us is whether the minimum criminal conduct required to violate N.Y.P.L. § 125.15(1) is “by its nature” a crime of violence under section 16(b). To be a “crime of violence” under section 16(b), the predicate offense must be a felony and must “involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” See Sutherland, 228 F.3d at 175 (finding that “any and all convictions” under the predicate statute at issue there (indecent non-consensual touching of a person over the age of 14) “would, by their nature, necessarily involve a substantial risk that physical force may be used”) (emphasis added)). N.Y.P.L. § 125.15(1), a felony offense, provides that a person is guilty of second-degree manslaughter when “[h]e recklessly causes the death of another person.” According to NY.P.L § 15.05(3), “[a] person acts recklessly with respect to a" }, { "docid": "6108224", "title": "", "text": "(6th Cir.), cert. denied, 516 U.S. 853, 116 S.Ct. 153, 133 L.Ed.2d 97 (1995) (interpreting the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)). With these cases as a guide, we conclude that Patel’s offense clearly constitutes a crime of violence under § 16(b). Under that section, a “crime of violence” is a crime “that is a felony and that, by its nature, involves a substantial risk that physical force against the person ... of another may be used in the course of committing the offense.” 18 U.S.C. § 16(b). The Second Circuit’s § 16(b) jurisprudence is particularly relevant to the case at bar. In Chery v. Ashcroft, the court considered an alien’s conviction for sexual assault in Connecticut. 347 F.3d 404 (2d Cir.2003). The court analyzed the criminal statute at issue, as did the BIA in this case, under the “categorical approach.” Chery, 347 F.3d at 407 (analyzing CONN. GEN. STAT. § 53a-71). “Under this rubric, we focus on the ‘intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.’ Accordingly, ‘only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.’ ” Id. (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001)). Indeed, as the Supreme Court recently held, both sections 16(b) and (a) of title 18 “require[ ] us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” Leocal, - U.S. at -, 125 S.Ct. at 381. Thus the courts are to consider “the defendant’s likely use of violent force as a means to an end.” Jobson v. Ashcroft, 326 F.3d 367, 373 (2d Cir.2003). If, in regard to a particular type of crime, “there is a substantial likelihood that the perpetrator will intentionally employ physical force,” Dalton, 257 F.3d at 208, it is a “crime of violence” under § 16(b). In Chery, the statute under which the petitioner was charged prohibited sexual intercourse with certain protected individuals including, inter alia, individuals who are mentally incapacitated and unable to consent, physically helpless," }, { "docid": "15089244", "title": "", "text": "of violence. See Dalton, 257 F.3d at 203. III. Categorical Approach This Court follows what has been termed a “categorical approach” to determine whether an offense is a crime of violence within the meaning of § 16(b). Jobson, 326 F.3d at 371; Dalton, 257 F.3d at 204. Under this rubric, we focus on the “intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Dalton, 257 F.3d at 204. Accordingly, “only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.” Id. (internal quotation marks omitted). IV. Crime of Violence The risk of physical force in § 16(b) “concerns the defendant’s likely use of violent force as a means to an end.” Jobson, 326 F.3d at 873. We have found that § 16(b) “refers only to those offenses in which there is a substantial likelihood that the perpetrator will intentionally employ physical force.” Dalton, 257 F.3d at 208 (internal quotation marks omitted). In finding that second-degree manslaughter under N.Y. Penal Law § 125.15 (requiring only recklessness) was not a crime of violence, this Court rejected the argument “that an offense satisfies section 16(b) as long as many (but not all) convictions involve a substantial risk of the use of force.” Jobson, 326 F.3d at 374 (examining N.Y.P.L. § 125.15(1)). We stressed in Jobson that even “passive conduct or omissions alone are sufficient for conviction” under the statute. Id. at 373. For example, failure to feed a child, People v. Stubbs, 122 A.D.2d 91, 504 N.Y.S.2d 235 (2d Dep’t 1986), or failure to provide medical care to a child beaten by someone else, People v. Salley, 153 A.D.2d 704, 544 N.Y.S.2d 680 (2d Dep’t 1989), resulted in convictions for second-degree manslaughter under New York law. The Connecticut statute at issue here is distinguishable, however, in that a conviction requires affirmative conduct by the defendant (namely, sexual intercourse with a protected individual). In determining that the felony of driving while intoxicated was not a “crime of violence” warranting removal, we observed that, “a defendant can be found guilty of driving while intoxicated" }, { "docid": "1407772", "title": "", "text": "offense either has as an element the use or threatened use of physical force, or “by its nature” involves a substantial risk of the use of physical force. We have held that in determining whether an offense is a crime of violence under § 16, a “categorical approach” to criminal statutory interpretation must be applied. Dalton, 257 F.3d at 204-05. In describing the categorical approach, we have held that every set of facts violating a statute must satisfy the criteria for remov-ability in order for a crime to amount to a removable offense; the BIA may not justify removal based on the particular set of facts underlying an alien’s criminal conviction. See Sui v. INS, 250 F.3d 105, 116-18 (2d Cir.2001); see also Dalton, 257 F.3d at 204. The categorical approach focuses on “the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Id. at 204 (“[T]he singular circumstances of an individual petitioner’s crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant[.]” (quoting Michel v. INS, 206 F.3d 253, 270 (2d Cir.2000) (Calabresi, J., dissenting)) (internal quotation marks omitted)). Where, however, a criminal statute encompasses diverse classes of criminal acts — some of which would categorically be grounds for removal and others of which would not — we have held that such statutes can be considered “divisible” statutes. See Kuhali v. Reno, 266 F.3d 93, 106 (2d Cir.2001) (holding that a federal statute prohibiting the export of certain classes of firearms and ammunition was divisible, because violation of the statute with regard to firearms would be a removable offense, while violation of the statute with regard to ammunition might not be); Sui, 250 F.3d at 118 (holding that a statute that prohibited “mak[ing], utter[ing] or possessing] a counterfeited security” was divisible, because the determination of whether an ahen was removable could vary “depending on whether he or she had been convicted alternatively of making, possessing, or uttering counterfeit securities”). In reviewing a conviction under a divisible statute, the categorical approach permits" }, { "docid": "19603272", "title": "", "text": "be more precise, we will refer to the force clause inquiry as the elements-based categorical approach, because it begins and ends with the offense's elements. When a statute defines an offense in a way that allows for both violent and nonviolent means of commission, that offense is not \"categorically\" a crime of violence under the force clause. Simms's offense-conspiracy to commit Hobbs Act robbery-does not categorically qualify as a crime of violence under the elements-based categorical approach, as the United States now concedes. Gov. 28(j) Letter at 1, ECF No. 44 (Oct. 19, 2016); Simms Suppl. Br. at 1. This is so because to convict a defendant of this offense, the Government must prove only that the defendant agreed with another to commit actions that, if realized, would violate the Hobbs Act. Such an agreement does not invariably require the actual, attempted, or threatened use of physical force. Accordingly, the only way we can sustain Simms's conviction on Count II is if his commission of Hobbs Act conspiracy constitutes a crime of violence under the residual clause-that is, if we determine that he committed a felony 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. § 924(c)(3)(B). Interpreting a materially identical clause in another statute, the Supreme Court has directed courts to employ a categorical approach that-as with the force clause-\"look[s] to the elements and the nature of the offense of conviction, rather than to the particular facts.\" Leocal , 543 U.S. at 7, 125 S.Ct. 377 (interpreting 18 U.S.C. § 16(b) to \"require[ ]\" categorical analysis); see also United States v. Aragon , 983 F.2d 1306, 1312-13 (4th Cir. 1993) (\"conclud[ing] that the plain language of § 16(b) mandates that the court embark upon a categorical approach\"). Importantly, however, the analysis applicable to the residual clause constitutes a \"distinctive form\" of the categorical approach. Dimaya , 138 S.Ct. at 1211 (interpreting § 16(b) ). Unlike the elements-based categorical approach of the force clause, the residual clause" }, { "docid": "22878924", "title": "", "text": "136 F.3d 982, 983 (5th Cir.1998). Defendants-appellants’ sentences must be affirmed unless they were imposed in violation of law or were based upon an erroneous application of the Sentencing Guidelines. United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.1996). 18 U.S.C. § 16(b) is the only justification for the 16-level enhancement advanced by the government. Section 16(b) provides that a crime of violence is “any other offense that is a felony and 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.” The government correctly observes that the words “by its nature” require us to employ a categorical approach when determining whether an offense is a crime of violence. Velazquez-Overa, 100 F.3d at 420-21. This means that the particular facts of the defendant’s prior conviction do not matter, e.g. whether the defendant actually did use force against the person or property of another to commit the offense. The proper inquiry is whether a particular defined offense, in the abstract, is a crime of violence under 18 U.S.C. § 16(b). This is the second time a panel of this Court has been called upon to decide the question of whether felony DWI is a crime of violence as defined by 18 U.S.C. § 16(b). In Camacho-Marroquin v. Immigration and Naturalization Service, 188 F.3d 649 (5th Cir.1999), withdrawn 222 F.3d 1040 (5th Cir.2000), this Court held that felony DWI was a crime of violence. However, Camacho-Marroquin moved to withdraw his petition for rehearing en banc so that the Immigration and Naturalization Service could deport him in lieu of incarceration. As a result, the panel withdrew its opinion. Camacho-Marroquin had held that felony DWI was a crime of violence because of the substantial risk that drunk driving will result in an automobile accident. Camacho-Marroquin, 188 F.3d at 652. The government agrees with this approach and urges that anytime an offense involves a substantial risk of harm, even accidental harm, that offense is a crime of violence. We disagree with the government’s proposed construction of section" }, { "docid": "3486617", "title": "", "text": "time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Included within the definition of “aggravated felony” is “a crime of violence (as defined in section 16 of title 18 ...) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Section 16 of Title 18 sets forth two definitions of “crime of violence”: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and 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. The BIA determined that Morris’s second-degree assault conviction qualified as a crime of violence under § 16(b). We agree. We approach the question of whether an offense falls within § 16(b) categorically and “look to the generic elements of the statutory offense” rather than to “the factual circumstances surrounding any particular violation.” Jobson v. Ashcroft, 326 F.3d 367, 371-72 (2d Cir.2003); see also Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001) (“[0]nly the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant. ...” (internal quotation marks omitted)). ‘We have broadly defined ‘physical force’ for purposes of § 16 as ‘power, violence, or pressure directed against a person or thing,’ ” and have rejected the argument that the “force referenced in § 16(b) must be ‘violent force applied directly to the person of the victim.’ ” Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 169 (2d Cir.2006) (quoting Dickson v. Ashcroft, 346 F.3d 44, 50 (2d Cir.2003)). In addition, “[f]or a particular felony, by its nature, to present a ‘substantial risk’ of the use of such physical force, a court need not conclude that commission of the crime requires the invariable application of such force.” Id. The “substantial risk” in § 16(b) “refers to intentional, rather than merely negligent or accidental, use of force.” Id. at 169-70. But §" }, { "docid": "22878923", "title": "", "text": "a fine and/or imprisonment up to two years. Section 1326(b)(2) increases the maximum penalty to a fine and/or imprisonment up to twenty years if the removal of the defendant was preceded by a conviction for an aggravated felony. The defendants- appellants’ sentences ranged from 41 to 57 months, all well above the section 1326(a) maximum. Defendants-appellants argue that, under Apprendi, the statutory maximum cannot be increased from two to twenty years unless the fact that triggers the higher maximum sentence of section 1326(b)(2), a prior aggravated felony conviction, is alleged in the indictment. Defendants-appellants concede that their argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and raise the issue in this Court only to preserve the possibility of review by the United States Supreme Court. Our disposition of these two legal issues will resolve all five appeals. Discussion I. This Court reviews the district court’s interpretation of the Sentencing Guidelines de novo and its application of the guidelines for clear error. United States v. Cho, 136 F.3d 982, 983 (5th Cir.1998). Defendants-appellants’ sentences must be affirmed unless they were imposed in violation of law or were based upon an erroneous application of the Sentencing Guidelines. United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.1996). 18 U.S.C. § 16(b) is the only justification for the 16-level enhancement advanced by the government. Section 16(b) provides that a crime of violence is “any other offense that is a felony and 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.” The government correctly observes that the words “by its nature” require us to employ a categorical approach when determining whether an offense is a crime of violence. Velazquez-Overa, 100 F.3d at 420-21. This means that the particular facts of the defendant’s prior conviction do not matter, e.g. whether the defendant actually did use force against the person or property of another to commit the offense. The proper inquiry is whether a particular defined offense, in" }, { "docid": "19926844", "title": "", "text": "namely 18 U.S.C. § 16 and Massachusetts General Laws chapter 265, section 13D — our review of the petition is de novo. See Vargas-Sarmiento, 448 F.3d at 165. III. Relevant Statutes A. The INA Under the INA, “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Of the many aggravated felonies identified by Congress in the INA, the one relevant here is “a crime of violence (as defined in section 16 of Title 18...) for which the term of imprisonment [is] at least one year.” INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). A “crime of violence,” in turn, is defined in 18 U.S.C. § 16 as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and 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. Under the plain language of § 16(a), one of the elements of a crime of violence must be “the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). See Chrzanoski v. Ashcroft, 327 F.3d 188, 191 & n. 6 (2d Cir.2003). As the Supreme Court noted in Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), “Section 16(b) sweeps more broadly than § 16(a).” It requires only two elements: (1) a felony that (2) “ ‘by its nature,’ involves a substantial risk that physical force” may be used. Sutherland, 228 F.3d at 175 (quoting 18 U.S.C. § 16(b)). To determine whether an offense is a crime of violence within the meaning of § 16(b), this Court employs the “categorical approach.” See Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001). Under this approach, “ ‘the singular circumstances of an individual petitioner’s crimes should not be considered, and only the minimum criminal" }, { "docid": "13303366", "title": "", "text": "portion of the definition of aggravated felony in the INA, subsection (F) of 8 U.S.C. § 1101(a)(43), incorporates by reference the definition of crime of violence found in 18 U.S.C. § 16, a federal criminal statute. Accordingly, we review de novo whether Jobson’s state conviction for manslaughter in the second degree under N.Y.P.L. § 125.15(1) is a crime of violence under section 16(b) as the BIA found. See Dalton, 257 F.3d at 203-04. B. Categorical Determination of Crime of Violence This Court takes a “categorical approach” to determining whether an offense is a crime of violence within the meaning of section 16(b). See Dalton, 257 F.3d at 204. Under a categorical approach, we look to the generic elements of the statutory offense. See id. (“[Ojnly the minimum criminal conduct necessary to sus tain a conviction under a given statute is relevant.”) (quoting Michel v. INS, 206 F.3d 253, 270 (2d Cir.2000) (Calabresi, J., dissenting) (emphasis added)). We have acknowledged the “daunting” difficulties of looking beyond the record of conviction and have concluded that we “cannot go behind the offense as it was charged to reach our own determination as to whether the underlying facts amount to one of the enumerated crimes.” Sui, 250 F.3d at 117-18 (citation omitted). The categorical approach is not only “consistent with both precedent and sound policy,” id. at 116, it is also necessary in view of the language of the applicable statutes. Section 16(b) itself defines a crime of violence “by its nature.” In Dalton, we held that this language specifically “compels” a reviewing court to focus “on the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Dalton, 257 F.3d at 204. In Sui, we similarly concluded that the underlying facts of petitioner’s offense, as distinct from the elements of the crime, could not be examined to determine whether the offense was an aggravated felony. See Sui, 250 F.3d at 117-18. We reasoned that under 8 U.S.C. § 1227(a)(2)(A)(iii), “deportability is premised on the existence of a conviction,” not on an inquiry into a particular defendant’s conduct. Id." }, { "docid": "19926845", "title": "", "text": "used in the course of committing the offense. Under the plain language of § 16(a), one of the elements of a crime of violence must be “the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). See Chrzanoski v. Ashcroft, 327 F.3d 188, 191 & n. 6 (2d Cir.2003). As the Supreme Court noted in Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), “Section 16(b) sweeps more broadly than § 16(a).” It requires only two elements: (1) a felony that (2) “ ‘by its nature,’ involves a substantial risk that physical force” may be used. Sutherland, 228 F.3d at 175 (quoting 18 U.S.C. § 16(b)). To determine whether an offense is a crime of violence within the meaning of § 16(b), this Court employs the “categorical approach.” See Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001). Under this approach, “ ‘the singular circumstances of an individual petitioner’s crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant!.]’ ” Id. (quoting Michel v. INS, 206 F.3d 253, 270 (2d Cir.2000) (Calabresi, J., dissenting) (alteration in Dalton)); see also Leocal, 543 U.S. at 7, 125 S.Ct. 377 (noting that, to determine whether an offense is a crime of violence under § 16(b), a court must “look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime”). B. Mass. Gen. Laws ch. 265, § 1SD Assault and battery on a police officer is an offense under chapter 265, section 13D (“section 13D”) of the Massachusetts General Laws, the section under which Blake was convicted. In its entirety, it provides: Whoever commits an assault and battery upon a police officer, firefighter, correction officer, sheriff, deputy sheriff, court officer, parole supervisor, constable, an employee of the department of social services, an employee of the registry of motor vehicles having police powers, an employee in the department of youth services with the care and custody" }, { "docid": "1407771", "title": "", "text": "See Dalton, 257 F.3d at 203; Bell, 218 F.3d at 89. The BIA’s interpretation of ambiguous provisions in the INA, a statute it is charged with administering, must be granted substantial deference unless “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Mardones v. McElroy, 197 F.3d 619, 624 (2d. Cir.1999). We review de novo, however, the BIA’s interpretation of state or federal criminal statutes. Dalton, 257 F.3d at 203. Because the INA defines aggravated felony with reference to “crimes of violence” as defined in the federal criminal code, see 18 U.S.C. § 16, and because this case also involves interpretation of the state crime of unlawful imprisonment, we review de novo the question whether NYPL § 135.10 is a crime of violence. See Dalton, 257 F.3d at 203. II. Whether Unlawful Imprisonment is a Crime of Violence Pursuant to 18 U.S.C. § 16 As noted above, § 16 requires consideration of whether an offense either has as an element the use or threatened use of physical force, or “by its nature” involves a substantial risk of the use of physical force. We have held that in determining whether an offense is a crime of violence under § 16, a “categorical approach” to criminal statutory interpretation must be applied. Dalton, 257 F.3d at 204-05. In describing the categorical approach, we have held that every set of facts violating a statute must satisfy the criteria for remov-ability in order for a crime to amount to a removable offense; the BIA may not justify removal based on the particular set of facts underlying an alien’s criminal conviction. See Sui v. INS, 250 F.3d 105, 116-18 (2d Cir.2001); see also Dalton, 257 F.3d at 204. The categorical approach focuses on “the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Id. at 204 (“[T]he singular circumstances of an individual petitioner’s crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction" }, { "docid": "23595548", "title": "", "text": "in subsection (1) of § 125.20, is defined by New York law as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” N.Y. Penal Law § 10.00(10). “Extreme emotional disturbance,” as referenced in subsection (2) of § 125.20, is a partial affirmative defense to second-degree murder that is available where “[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” Id. § 125.25(1)(a); see People v. White, 79 N.Y.2d 900, 903, 581 N.Y.S.2d 651, 652-53, 590 N.E.2d 236 (1992) (describing components of extreme emotional disturbance defense as (1) objective element requiring proof that there was reasonable explanation or excuse; and (2) subjective element requiring proof that conduct was influenced by extreme emotional disturbance at time crime was committed). If a defendant charged with second-degree murder proves extreme emotional disturbance by a preponderance of the evidence, he is not acquitted; rather, the charge of conviction is reduced from murder to manslaughter in the first degree. See DeLuca v. Lord, 77 F.3d 578, 585 (2d Cir.1996) (citing People v. Casassa, 49 N.Y.2d 668, 675, 427 N.Y.S.2d 769, 772-73, 404 N.E.2d 1310 (1980)). D. The Categorical Approach to Identifying Crimes of Violence under'18 U.S.C. § 16 1. Categorical Analysis In the context of removal proceedings, this court has ruled that a “categorical approach” must be used to determine whether an offense is a “crime of violence” within the meaning of 18 U.S.C. § 16(b). Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001). Under this categorical approach, a reviewing court must focus on “the intrinsic nature of the offense,” rather than on “ ‘the singular circumstances of an individual petitioner’s crimes[,] ... and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.’ ” Id. (quoting Michel v. INS, 206 F.3d at 270 (Calabresi, J., dissenting)); see also Ming Lam Sui v. INS, 250 F.3d 105, 117-18 (2d Cir.2001) (noting that reviewing court" }, { "docid": "6108225", "title": "", "text": "violation.’ Accordingly, ‘only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.’ ” Id. (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001)). Indeed, as the Supreme Court recently held, both sections 16(b) and (a) of title 18 “require[ ] us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” Leocal, - U.S. at -, 125 S.Ct. at 381. Thus the courts are to consider “the defendant’s likely use of violent force as a means to an end.” Jobson v. Ashcroft, 326 F.3d 367, 373 (2d Cir.2003). If, in regard to a particular type of crime, “there is a substantial likelihood that the perpetrator will intentionally employ physical force,” Dalton, 257 F.3d at 208, it is a “crime of violence” under § 16(b). In Chery, the statute under which the petitioner was charged prohibited sexual intercourse with certain protected individuals including, inter alia, individuals who are mentally incapacitated and unable to consent, physically helpless, and under sixteen years of age. See CONN. GEN. STAT. § 53a-71. The Second Circuit held that under the statute, “although ... force may not be present in all circumstances, the risk of the use of force is inherent in each of the offenses set forth in the statute.” Chery, 347 F.3d at 408. Patel was convicted for aggravated criminal sexual abuse, in violation of an Illinois statute. To sustain a conviction under that statute, the state must first show that the defendant committed criminal sexual abuse, which encompasses acts of sexual conduct (a) “by the use of force or threat of force” or (b) where “the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.” 720 ILL. COMP. STAT. 5/12-15 (1993). Sec ond, the state must show one of various aggravating factors, including that the accused displayed what reasonably appeared to be a dangerous weapon or caused great bodily harm to the victim; or that the victim was at least 60 years" }, { "docid": "3486618", "title": "", "text": "particular violation.” Jobson v. Ashcroft, 326 F.3d 367, 371-72 (2d Cir.2003); see also Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001) (“[0]nly the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant. ...” (internal quotation marks omitted)). ‘We have broadly defined ‘physical force’ for purposes of § 16 as ‘power, violence, or pressure directed against a person or thing,’ ” and have rejected the argument that the “force referenced in § 16(b) must be ‘violent force applied directly to the person of the victim.’ ” Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 169 (2d Cir.2006) (quoting Dickson v. Ashcroft, 346 F.3d 44, 50 (2d Cir.2003)). In addition, “[f]or a particular felony, by its nature, to present a ‘substantial risk’ of the use of such physical force, a court need not conclude that commission of the crime requires the invariable application of such force.” Id. The “substantial risk” in § 16(b) “refers to intentional, rather than merely negligent or accidental, use of force.” Id. at 169-70. But § 16 “defines as a crime of violence those felony offenses ‘that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.’ ” Id. at 169 (quoting Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)). Morris was convicted under New York Penal Law § 120.05(2), which provides that a person is guilty of assault in the second degree when, “[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” Id. Under the categorical approach, the generic elements of this offense are: (1) the specific intent to cause physical injury; (2) actually causing physical injury; and (3) doing so through the use of a deadly weapon or dangerous instrument. We have previously observed that where an accused has an intent “to inflict serious physical injury—action likely to meet vigorous resistance from a victim—we can confidently conclude that inherent" } ]

[ { "docid": "20181764", "title": "", "text": "of the opinion that the complaint states a good cause of action on its face. Sections 3 and 5 of the Copyright Act of March 4, 1909, 17 U.S.C.A. §§ 3, 5; Exhibit “C” annexed to the complaint evidencing compliance with said Act. See King Features Syndicate v. Fleischer, 2 Cir., 299 F. 533, 535. The motion for summary judgment must be denied. The defendant contends that its use of plaintiff’s editorial did not amount to an infringement of the copyright but comes within the legally recognized area of invasion of plaintiff’s rights as a “fair use” of the editorial. If and when “fair use” constitutes a defense is to be determined by consideration of all the evidence in the case. Simms v. Stanton, C.C., 75 F. 6, 10; Folsom v. Marsh, 9 Fed. Cas. pages 342, 348, No. 4,901. The extent and relative value of the copyrighted material, the purpose for the claimed “fair use”, and the effect upon distribution and objects of the original work are some elements entering into the determination of the issue. Broadway Music Corp. v. F-R Pub. Corp., D.C., 31 Fed.Supp. 817. Plaintiff contends that the defendant was not actuated by its professed motives but sought publicity for commercial reasons. While intent to infringe is not essential to plaintiff’s cause of action, (Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 198, 51 S.Ct. 410, 75 L.Ed. 971), nevertheless the defendant’s intention bears upon the question of “fair use.” Lawrence v. Dana et al., 15 Fed.Cas. 26, at page 51, No. 8,136. Plaintiff also asserts that it should be given an opportunity to discover the exact number of reproduced and distributed copies as bearing on defendant’s claimed “fair use” of the editorial. On the whole, I am persuaded that the determination of the “fair use” should not be resolved on affidavits but is best left to the trial judge. Settle order on notice." } ]

[ { "docid": "21323008", "title": "", "text": "market for, the original. Hill v. Whalen & Martell, Inc., 220 F. 359 (S.D.N.Y. 1914); Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841). And it has been held that wholesale copying of a copyrighted work is never “fair use” (Leon v. Pacific Tel. & Tel. Co., 91 F. 2d 484, 34 USPQ 237 (9th Cir. 1987); Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 127 USPQ 231 (D.C. Cir. 1960), vacated and remanded, 369 U.S. 111 (1962)), even if done to further educational or artistic goals and without intent to make profit. Wihtol v. Crow, 309 F. 2d 777, 135 USPQ 385 (8th Cir. 1962). Whatever may be the bounds of “fair use” as defined and applied by the courts, defendant is clearly outside those bounds. Defendant’s photocopying is wholesale copying and meets none of the criteria for “fair use.” The photocopies are exact duplicates of the original articles; are intended to be substitutes for, and serve the same purpose as, the original articles; and serve to diminish plaintiff’s potential market for the original articles since the photocopies are made at the request of, and for the benefit of, the very persons who constitute plaintiff’s market. Defendant says, nevertheless, that plaintiff has failed to show that it has been harmed by unauthorized photocopying; and that, in fact, plaintiff’s journal subscriptions have increased steadily over the last decade. Plaintiff need not prove actual damages to make out its case for infringement. Macmillan Go., supra. Section 1498 of title 28 U.S.C. provides for payment of “reasonable and entire compensation * * * including minimum statutory damages as set forth in section 101(b) of title 17, United States Code.” See Brady v. Daly, 175 U.S. 148 (1899); F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228 (1952). M. Nimmer, Copyright § 154 (1971 ed.). Moreover, damage may be inferred in this case from the fact that the photocopies are intended to supplant the original articles. While it may be difficult (if not impossible) to determine the number of subscription sales lost to photocopying, the fact remains that" }, { "docid": "8109164", "title": "", "text": "the choir and the furnishing of printed copies of the music to its members. In November of 1958, Crow, without the permission of the plaintiffs, copied the song “My God and I,” incorporating it in a new arrangement made by him. He had found the copyrighted version of the song as published and sold by the plaintiffs — of which the School had acquired some 25 copies — unsuitable for choir use. About 48 copies of his new arrangement, adapted for such use, were produced by him upon one of the School’s duplicating machines. The new arrangement of the song was performed once by the High School choir of 84 voices at one of the regular monthly School chapel services, and was performed at church services on one Sunday by the much smaller choir of the First Methodist Church. Crow had furnished the choirs with copies of his new arrangement. The copies contained the words “arranged Nelson E. Crow,” and made no reference to Wihtol. In June of 1959, Crow wrote The Kama Co., advising of the new arrangement he had made of the song, and stating that he had “ad libbed a choral humming introduction of four measures” but otherwise had left the score in its original context and had omitted no part of the solo version. In his letter he suggested that The Kama Co. might be interested in his arrangement, and said: “ * * * I will attempt to get the score ready for your perusal next fall — if you are interested.” In response to his letter, The Kama Co. requested that copies of his arrangement of the song be forwarded for inspection. Receiving no reply to this request, Wihtol went to Clar-inda, Iowa. Crow was not there. Wihtol discussed the matter of infringement with Mrs. Crow. Wihtol gathered the impression that there was to be no peaceful solution of the controversy, and returned to Los Angeles. Under date of July 28, 1959, The Kama Co. wrote Crow as follows: “Dear Mr. Crowe: “We regret that you did not comply with our request of sending" }, { "docid": "21322954", "title": "", "text": "1790, ch. 15, 1 Stat. 124). Thereafter, the statute was revised from time to time, notably in 1S02, 1831, 1870, and 1891. In 1909, the present statute was passed (Act of March 4, 1909, ch. 320, 35 Stat. 1075) and later was codified as 17 U.S.C. (Act of July 30,1947, 61 Stat. 652). For instance, H.R. Rep. No. 2222, 60th Cong., 23 Sess. 4 (1909) states: “Subsection (a) of section 1 adopts without change the phraseology of section 4952 of the Revised Statutes, and this, with the insertion of the word ‘copy,’ practically adopts the phraseology of the first copyright act Congress ever passed — -that of 1790. Many amendments of this were suggested, but the committee felt that It was safer to retain without change the old phraseology which has been so often construed by the courts.” There was an 1911 edition, but no copy has been located. The Library’s current practice Is described in Part III, 3, note 16, infra. To the extent that Macmillan Co. v. King, 223 F. 862 (D. Mass. 1914), may possibly suggest that “publication” can occur through simple distribution to a very small restricted group, for a special purpose, we think the opinion goes too far. Leon v. Pacific Tel. & Tel. Co., 91 F. 2d 484, 486 (C.A. 9, 1937) and Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (C.A.D.C. 1960), vacated, and remanded, 369 tJ.S. Ill (1962), which are often cited In this connection, both Involved actual publication and distribution of many copies, not the simple making of a copy for individual personal or restricted use. In Wihtol v. Crow, 309 F. 2d 777 (C.A. 8, 1962) , 48 copies of the copyrighted song were made and distributed, and there were a number of public performances using these copies. It was as if the defendant had purchased one copy of sheet music and then duplicated it for an entire chorus. On the other hand, New York Tribume, Inc. v. Otis & Co., 39 F. Supp. 67 (S.D.N.Y. 1941), shows that copying of an entire copyrighted item Is not" }, { "docid": "21322926", "title": "", "text": "the library is nothing more than the individual requester’s ¡ministerial agent, we do agree that the NIH and NLM systems, as described in the evidence, are close kin to the current Library of Congress policy, see note 16, infra, of maintaining machines in the library buildings so that readers can do their own copying. The principal extension by NLM and NIH is to service requesters who cannot conveniently come to the building, as well as out-of-town libraries. But the personal, individual focus is still present. The reader who himself makes a copy does so for his own personal work needs, and individual work needs are likewise dominant in the reproduction programs of the two medical libraries— programs which are reasonably policed and enforced. 3. We also think it significant, in assessing the recent and current practices of the two libraries, that library photocopying, though not of course to the extent of the modern development, has been going on ever since the 1909 Act was adopted. In Part II, supra, we have set forth the practice of the Library of Congress at that time and for many years thereafter. In fact, photocopying seems to have been done in the Library at least from the beginning of this century. Can Copyright Law Respond to the New Technology? 61 Law. Lib. J. 387, 400 (1968) (comments of V. Clapp). In 1935 there was a so-called “gentlemen’s agreement” between the National Association of Book Publishers (since defunct) and the Joint Committee on Materials for Research (representing the libraries), stating in part: “A library * * * owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction * * * of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purposes of research * * Though this understanding discountenanced photoduplication of an entire book it was regularly construed as allowing copying of articles. There have been criticisms of this pact, and we cite it, not" }, { "docid": "21322967", "title": "", "text": "1909 Act which has held that the word “copy” in section 1(a) would not apply to the making of one or a number of copies of a book or other material of this type. The cases have simply not recognized the claimed distinction between copying and printing or publishing. For example, in New York Tribune, Inc. v. Otis & Co., 39 F. Supp. 67 (S.D.N.Y. 1941), the court found the making of Photostatic copies of plaintiff’s newspaper editorial and masthead to be a “good cause of action on its face,” and denied defendant’s motion for summary judgment. Id. at 68. The defendant in that case had distributed the photocopies to a selected list of public officials, bankers, educators, economists and other persons. The court drew no distinction between printing, publishing, or copying. By comparison, the copying and distributing of the newspaper editorial and masthead in that case is very similar to the copying and distributing of the journal articles in the present action. Therefore, I do not think there is substantial doubt that the photocopying by defendant’s libraries is a copy of the plaintiff’s journal articles in violation of the copyright owner’s exclusive right to copy or to multiply copies of his work under section 1 (a). I can see no reason to draw a distinction between copying of “books” and copying of other materials when the distinction is expressly rejected on the face of the copyright statute, has not been observed in numerous cases applying the 1909 Act, and has no reasonable basis in light of the purposes of copyright protection. II The Photocopying of Plaintiff's Copyrighted Articles Was Not Fair Use 1. Realizing the necessity for showing that the defendant’s unauthorized copying of plaintiff’s articles was both reasonable and insubstantial, the court relies heavily on policies which were adopted by the libraries in 1965. Although these policies were designed to limit the extent of copying that had been done in prior years, the trial judge’s opinion and the findings of fact show the exceptions are routinely granted by the defendant’s libraries, that there is no way to enforce" }, { "docid": "21322956", "title": "", "text": "enough, in itself, to preclude application of “fair use.’’ Although it was already plain that an entire copyrighted item (a newspaper editorial) had been reproduced, the court ordered further proceedings to take account of other factors. Verner Clapp, former Acting Librarian of Congress, bas pointed out some of the uses of a photocopy for which the library copy original is unsuited (Gan Copyright Law Respond to the New Technology t, 61 Law Lib. J. 387 407 (1968) : “I cannot submit the original conveniently in a court, in a suit of law. I cannot put the original into my filing cabinet. I can’t shuffle it with notes in preparation for an address. X can’t make notes on it. I can’t conveniently give it to a typist. I can’t use it as printer’s copy. I can’t send it through the mail without serious risk of loss of an original. With a photocopy I can do all these things and more, and this is the reason I want a copy.” One survey of NIH operations slows only 4 instances of duplication in over 200 requests; at NLM, as of 1964, duplication occurred at a 10% rate in the 102 most heavily used journals (constituting one-third of total requests) ; if all requests were considered, the rate would be less. The Sophar & Heilprin report (see Appendix), which Is not friendly to library photocopying, estimates that for libraries generally the duplication rate was about 3% (P. ill). In 1970, NIH copied 85,744 and NLM 93,740 articles. Currently, and for some time, tlie Library of Congress has said that copyright material will “ordinarily” not be photocopied by the Library “without the signed authorization of the copyright owner,” but “[exceptions to this rule may be made in particular cases.” The Library does, however, maintain machines which readers may themselves use for photocopying; these machines contain notices saying that “a single photocopy of copyrighted material may be made only for the purpose of study, scholarship, or research, and for no other purpose” and “the sale and/or further reproduction of any photocopied copyrighted materials is illegal.” Plaintiff" }, { "docid": "21322918", "title": "", "text": "may justifiably be applied to particular materials turns initially on the nature of the materials, e.g., whether their distribution would serve the public interest in the free dissemination of information and whether their preparation requires some use of prior materials dealing with the same subject matter. Consequently, the privilege has been applied to works in the fields of science, law, medicine, history and biography.” Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303, 307 (C.A. 2, 1966). It has sometimes been suggested that the copying of an entire copyrighted work, any such work, cannot ever be “fair use,” but this is an overbroad generalization, unsupported by the decisions and rejected by years of accepted practice. The handwritten or typed copy of an article, for personal use, is one illustration, let alone the thousands of copies of poems, songs, or such items which have long been made by individuals, and sometimes given to lovers and others. Trial Judge James F. Davis, who considered the use now in dispute not to be “fair,” nevertheless agreed that a library could supply single photocopies of entire copyrighted works to attorneys or courts for use in litigation. It is, of course, common for courts to be given photocopies of recent decisions, with the publishing company’s headnotes and arrangement, and sometimes its annotations. There are other examples from everyday legal and personal life. We cannot believe, for instance, that a judge who makes and gives to a colleague a photocopy of a law review article, in one of the smaller or less available journals, which bears directly on a problem both judges are then considering in a case before them is infringing the copyright, rather than making “fair use” of his issue of that journal. Similarly with the photocopies of particular newspaper items and articles which are frequently given or sent by one friend to another. There is, in short, no inflexible rule excluding an entire copyrighted work from the area of “fair use.” Instead, the extent of the copying is one important factor, but only one, to be taken into account, along with" }, { "docid": "6950207", "title": "", "text": "(Nimmer, Copyright Publication, 56 Col.L.Rev. 185, 197 (1956)): ‘“This analysis suggests that a sine qua non of publication should be the acquisition by members of the public of a possessory interest in tangible copies of the work in question.” And -elsewhere (195) the same author .says-: Í“The principle that public performance does not constitute a publication of the work being performed is well established in the American law of copyright and, unlike the effect of the sale of phonograph records, is not the subject of any serious debate ¡among copyright lawyers.” It should also be noted that in considefing the questions of copyright in Public Affairs Associates, Inc. v. Rickover, 177 F.Supp. 601 (D.C.1960), reversed 109 U.S.App.D.C. 128, 284 F.2d 262 :(1960), reversed 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962), none of the judges or justices paid any attention to the number of persons in the audiences addressed by Admiral Rickover. The “oral delivery” of his speech by Dr. King, no matter how vast his audience, did not amount to a general publication of his literary work. Defendants stress the delivery without ■copyright notice of an advance text of his speech and the distribution of it to the ¿press. But within the concept of publication just examined, it is clear that this was a limited, as opposed to a general, ^publication. There is nothing to suggest that copies of the speech were ever offered to the public; the fact is clear that the “advance text” was given to the press only. This is a very different situation from that in the Rickover case, above. In Rickover, there was “a wide distribution not only to the press but also to people generally who desired copies through interest in the subjects of the addresses”; the Admiral not only attempted “to secure publicity * * * through the channels of information” but went “beyond customary sources of press or broadcasting in distributing the addresses to any interested individual\" (284 F.2d at 270). The Court of Appeals majority then expressed its conclusion (284 F.2d at 271): \"Since the distribution was not" }, { "docid": "21322971", "title": "", "text": "publication of copyrighted material can ever be fair use. For other cases to the same effect, see Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (D.C. Cir. 1960), judgment vacated for insufficient record, 369 U.S. Ill (1962); Benny v. Loew's Inc., 239 F. 2d 532, 536 (9th Cir. 1956), o/ff'cl by an equally divided court sub nom., Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U.S. 43 (1958) ; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 924 (S.D. Cal. 1963). See also M. Nimmer, Nimmer on Copyright §145 at 650-51 (1973 ed.). Although the majority states that the rule announced in the cases cited above is an “overbroad generalization, unsupported by the decisions 'and rejected by years of accepted practice,” the court cites no decisions in support of its position. 3. I recognize that the doctrine of fair use permits writers of scholarly works to make reasonable use of previously copyrighted material by quotation or paraphrase, at least where the amount of copying is small and reliance on other sources is demonstrated. See, e.g., Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967); Simms v. Stanton, 75 F. 6,13-14 (C.C.N.D. Cal. 1896). However, I think the basic error in the court’s decision is its holding that the fair use privilege usually granted to such writers should be extended to cover the massive copying and distribution operation conducted by defendant’s libraries. The articles are not reproduced by the libraries to enable them to write other articles in the same field. In fact, booksellers and licensed copiers of plaintiff’s journals sell copies of journal articles to the same class of users and for the same purposes as the copies reproduced by defendant’s libraries. I do not believe that anyone would contend that the ultimate use of the purchased articles by scientists, doctors, or drug companies would permit the commercial concerns mentioned to reproduce copies without plaintiff’s permission. In an effort to overcome this obstacle, the majority relies in part on the nature and function of the" }, { "docid": "21323022", "title": "", "text": "of the event, it would not be feasible for copyright owners to control private copying and use. But reproduction for private use takes on different dimensions when made by modem photocopying devices capable of reproducing quickly any volume of material in any number of copies, and when copies are so made to be supplied to other persons. Publisher’s copies are bought for the private use of the buyer, and in some circumstances a person supplying copies to others will be competing with the publisher and diminishing his market. Not only is such competition unfair to the publisher and copyright owner, but it may be injurious to scholarship and research. Thus, it has been pointed out that widespread photocopying of technical journals might so diminish me volume of subscriptions for the journals as to force the suspension of their publication. Also, the 1961 Register’s Report notes at 25-26: Researchers need to have available, for reference and study, the growing mass of published material in their particular fields. This is true especially, though not solely, of material published in scientific, technical, and scholarly journals. Researchers must rely on libraries for much of this material. When a published copy in a library’s collections is not available for loan, which is very often the case, the researcher’s need can be met by a photocopy. On the other hand, the supplying of photocopies of any work to a substantial number of researchers may diminish the copyright owner’s market for the work. Publishers of scientific, technical, and scholarly works have pointed out that their market is small; and they have expressed the fear that if many of their potential subscribers or purchasers were furnished with photocopies, they might be forced to discontinue publication. Finally, defendant says that it is unconstitutional to construe the copyright law so as to proscribe library photocopying of scientific or technical writings because such photocopying is consonant with the constitutional purpose of copyright “to promote the progress of science.” That argument misses the mark. Article I, section 8, clause 8, of the TJ.S. Constitution grants to Congress the “Power * * *" }, { "docid": "21322955", "title": "", "text": "1914), may possibly suggest that “publication” can occur through simple distribution to a very small restricted group, for a special purpose, we think the opinion goes too far. Leon v. Pacific Tel. & Tel. Co., 91 F. 2d 484, 486 (C.A. 9, 1937) and Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (C.A.D.C. 1960), vacated, and remanded, 369 tJ.S. Ill (1962), which are often cited In this connection, both Involved actual publication and distribution of many copies, not the simple making of a copy for individual personal or restricted use. In Wihtol v. Crow, 309 F. 2d 777 (C.A. 8, 1962) , 48 copies of the copyrighted song were made and distributed, and there were a number of public performances using these copies. It was as if the defendant had purchased one copy of sheet music and then duplicated it for an entire chorus. On the other hand, New York Tribume, Inc. v. Otis & Co., 39 F. Supp. 67 (S.D.N.Y. 1941), shows that copying of an entire copyrighted item Is not enough, in itself, to preclude application of “fair use.’’ Although it was already plain that an entire copyrighted item (a newspaper editorial) had been reproduced, the court ordered further proceedings to take account of other factors. Verner Clapp, former Acting Librarian of Congress, bas pointed out some of the uses of a photocopy for which the library copy original is unsuited (Gan Copyright Law Respond to the New Technology t, 61 Law Lib. J. 387 407 (1968) : “I cannot submit the original conveniently in a court, in a suit of law. I cannot put the original into my filing cabinet. I can’t shuffle it with notes in preparation for an address. X can’t make notes on it. I can’t conveniently give it to a typist. I can’t use it as printer’s copy. I can’t send it through the mail without serious risk of loss of an original. With a photocopy I can do all these things and more, and this is the reason I want a copy.” One survey of NIH operations slows only" }, { "docid": "21323017", "title": "", "text": "in “substitution” for the original work, and further noted that “[ojrders for photo-copying which, by reason of their extensiveness or for any other reasons” could serve as duplicates of the original copyrighted work “should not be accepted.” Thus, the most that can be said for the “gentlemen’s agreement” is that it supported (and probably still supports) the proposition that it is “reasonable and customary” (and thus “fair use”) for a library to photocopy for a patron a part of a book, or even part of a periodical article, such as a chart, graph, table, or the like, so long as the portion copied is not practically a substitute for the entire original work. Other instances of library photocopying may also be “fair use.” E.g., a library no doubt can replace damaged pages of copyrighted works in its collection with photocopies ; can make a small number of photocopies for in-house administrative purposes, such as cutting up for cataloging or the like; or can supply attorneys or courts with single photocopies for use in litigation. In all those instances, and probably many more which might come to mind on reflection, the rights of the copyright owner are not materially harmed. The doctrine of “fair use” and the “gentlemen’s agreement,” however, cannot support wholesale copying of the kind here in suit. Defendant also contends that traditionally, scholars have made handwritten copies of copyrighted works for use in research or other scholarly pursuits; that it is in the public interest that they do so because any harm to copyright owners is minimal compared to the public benefits derived therefrom ; and that the photocopying here in suit is essentially a substitute for handeopying by the scholars themselves. That argument is not persuasive. In the first place, defendant concedes that its libraries photocopy substantially more material than scholars can or do copy by hand. Implicit in such concession is a recognition that laborious handcopying and rapid machine photocopying are totally different in their impact on the interests of copyright owners. Furthermore, there is no case law to support defendant’s proposition that the making of" }, { "docid": "21322969", "title": "", "text": "most of the limitations, and that defendant is operating a reprint service which supplants the need for journal subscriptions. In particular, the trial judge has, I think, clearly demonstrated that the claimed “single-copy-per-request” limitation is both illusory and unrealistic. He has found, and it is not disputed, that the libraries will duplicate the same article over and over again, even for the same user, within a short space of time. NLM will supply requesters photocopies of the same article, one after another, on consecutive days, even with knowledge of such facts. I find great difficulty in detecting any difference between the furnishing by defendant’s libraries of ten copies of one article to one patron, which he then distributes, and giving each of ten patrons one copy of the same article. The damage to the copyright proprietor is the same in either case. 2. The law is well settled, and I believe not questioned by the court in this case, that under Section '3 of the Copyright Act, plaintiff’s copyrights of the journals cover each article contained therein as fully as if each were individually copyrighted. Section 3 expressly mentions periodicals, and for the purpose of determining whether there has been infringement, each copyrightable component is to be treated as a complete work. Markham v. A. E. Borden Co., 206 F. 2d 199, 201 (1st Cir. 1953). It is undisputed that the photocopies in issue here were exact duplicates of the original articles; they were intended to be substitutes for and they served the same purpose as the original articles. They were copies of complete copyrighted works within the meaning of Sections 3 and 5 of the Copyright Act. This is the very essence of wholesale copying and, without more, defeats the defense of fair use. The rule to be applied in such a situation was stated in Leon v. Pacific Telephone & Telegraph Co., 91 F. 2d 484, 486 (9th Cir. 1937) as follows: Counsel have not disclosed a single authority, nor have we been able to find one, which lends any support to the proposition that wholesale copying and" }, { "docid": "21322970", "title": "", "text": "contained therein as fully as if each were individually copyrighted. Section 3 expressly mentions periodicals, and for the purpose of determining whether there has been infringement, each copyrightable component is to be treated as a complete work. Markham v. A. E. Borden Co., 206 F. 2d 199, 201 (1st Cir. 1953). It is undisputed that the photocopies in issue here were exact duplicates of the original articles; they were intended to be substitutes for and they served the same purpose as the original articles. They were copies of complete copyrighted works within the meaning of Sections 3 and 5 of the Copyright Act. This is the very essence of wholesale copying and, without more, defeats the defense of fair use. The rule to be applied in such a situation was stated in Leon v. Pacific Telephone & Telegraph Co., 91 F. 2d 484, 486 (9th Cir. 1937) as follows: Counsel have not disclosed a single authority, nor have we been able to find one, which lends any support to the proposition that wholesale copying and publication of copyrighted material can ever be fair use. For other cases to the same effect, see Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (D.C. Cir. 1960), judgment vacated for insufficient record, 369 U.S. Ill (1962); Benny v. Loew's Inc., 239 F. 2d 532, 536 (9th Cir. 1956), o/ff'cl by an equally divided court sub nom., Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U.S. 43 (1958) ; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 924 (S.D. Cal. 1963). See also M. Nimmer, Nimmer on Copyright §145 at 650-51 (1973 ed.). Although the majority states that the rule announced in the cases cited above is an “overbroad generalization, unsupported by the decisions 'and rejected by years of accepted practice,” the court cites no decisions in support of its position. 3. I recognize that the doctrine of fair use permits writers of scholarly works to make reasonable use of previously copyrighted material by quotation or paraphrase, at least where the amount of copying is small and reliance on other sources" }, { "docid": "21323034", "title": "", "text": "3, 1831, eh. 16, §§ 6 and 7, 4 Stat. 436; Act of July 8, 1870, ch. 230, §§99 and 100, 16 Stat. 214; Act of March 3, 1891, ch. 565, §§ 4964 and 4965, 26 Stat. 1109. The trial judge observed that It was the Intent of Congress In all the copyright acts to proscribe the unauthorized duplication of copyrighted works. The words used in the various statutes were simply attempts to define the then-current means by which duplication could be effected. I believe this is a fair statement, but it is not necessary to debate the statutory history in light of the changes in the 1909 Act. For cases involving the copying of segments from a copyrighted catalog by photographic reproduction, see Hedeman Products Corp. v. Tap-Rite Prods. Corp., 228 F. Supp. 630, 633-34 (D.N.J. 1964) ; R. R. Donnelley & Sons Co. v. Haber, 43 F. Supp. 456, 458-59 (E.D.N.Y. .1942). The fact that Dr. Putnam, the Librarian of Congress at the time of the 1909 Act, interpreted the word “copy” not to include library photoduplication is no indication that the Congress drafted the statute with this intent. The absence of any provision allowing library photoduplication in the statute or the legislative history indicates, as much as anything else, that Congress did not consider it to be exempt from the Act. The many efforts to amend the law to authorize photocopying by libraries provide a strong indication that existing law was not intended to grant this exemption to libraries. See n. 14, trial judge’s opinion. It has been held that the copying or printing of something which has been lawfully copyrighted is an infringement “without any requirement that there be a sale or that profits be made from sale of the copies.” Chappell & Co., Inc. v. Costa, 45 F. Supp. 554, 556 (S.D.N.Y. 1942). In Wihtol v. Crow, 309 F. 2d 777 (8th Cir. 1962), the First Methodist Church was found to be liable for a choral instructor’s copying of a copyrighted song. See tie trial Judge’s opinion for quotations from B. Varmer, Pliotoduplieation of Copyrighted" }, { "docid": "21322927", "title": "", "text": "of the Library of Congress at that time and for many years thereafter. In fact, photocopying seems to have been done in the Library at least from the beginning of this century. Can Copyright Law Respond to the New Technology? 61 Law. Lib. J. 387, 400 (1968) (comments of V. Clapp). In 1935 there was a so-called “gentlemen’s agreement” between the National Association of Book Publishers (since defunct) and the Joint Committee on Materials for Research (representing the libraries), stating in part: “A library * * * owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction * * * of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purposes of research * * Though this understanding discountenanced photoduplication of an entire book it was regularly construed as allowing copying of articles. There have been criticisms of this pact, and we cite it, not as binding in any way on plaintiff or any other publisher, or as showing universal recognition of “single” photocopying, but as representing a very widely held view, almost 40 years ago, of what was permissible under the 1909 statute. There is other evidence that, until quite recently, library photocopying was carried on with apparent general acceptance. Witnesses in this case testified that such photocopying has been done for at least fifty years and is well-established. The National Library of Medicine Act, in 1956, by which NLM was created (42 U.S.C. §275, et seg.), provided at § 276(a) (4) that the Secretary of Health, Education, and Welfare, through NLM, should “make available, through loans, photographic or other copying procedures or otherwise, such materials in the Library as he deems appropriate * * *”; and the Medical Library Assistance Act of 1965 (42 U.S.C. § 280b-l, et seg.) provided that grants be made to medical libraries for, among other things, “acquisition of duplicating devices, facsimile equipment * * * and other equipment to facilitate the use of" }, { "docid": "21322978", "title": "", "text": "millions find machine copying economical and convenient. Allowing individual users to decide that their machine copying will not injure the author and will thus be a fair use fails to take into account the true economic effect when thousands of such individued decisions are aggregated. The problem is vividly presented by the practice of the National Library of Medicine. The Library justifies its distribution of reprographic copies of journal articles to biomedical libraries (without permission of the copyright owner) on the basis of a 1939 understanding between publishers and libraries called the “Gentlemen’s Agreement.” Under this agreement photocopies are permitted whenever the user would have made a hand copy himself, the rationale being that no purchases of the author’s work are displaced under these circumstances. When an individual would actually copy by hand, the theory is valid; there is no sound reason to force him to do the work. But many people obtain copies from the library who would not copy by hand, and who might in fact buy a copy of the work if they were un able to receive ail inexpensive machine reproduction of it. Thus, the library interprets the Gentlemen’s Agreement in its favor and thereby “justifies” a substantial amount of copying. (Emphasis supplied.) Project, New Technology and the Law of Copyright: Reprography and Computers, 15 U.C.L.A. L. Rev. 931, 951 (1968). As the majority points out, one study, made in 1962, concluded that photocopying did not result in economic damage to publishers at that time: Fry & Associates, Survey of Copyrighted Material Reproduction Practices in Scientific and Technical Fields, 11 Bull. Cr. Soc. 69, 71 (1963). This study also stated: One situation was reported during the survey in which economic damage may occur. A prominent university library in a small town with several corporate research ■and development centers gives excellent service on its collection. This library felt that these corporate libraries are subscribing to only the minimum number of journals. They rely on the university to supply photocopies of other material. # * * * m This is the one clear-cut example disclosed during the survey" }, { "docid": "21323035", "title": "", "text": "to include library photoduplication is no indication that the Congress drafted the statute with this intent. The absence of any provision allowing library photoduplication in the statute or the legislative history indicates, as much as anything else, that Congress did not consider it to be exempt from the Act. The many efforts to amend the law to authorize photocopying by libraries provide a strong indication that existing law was not intended to grant this exemption to libraries. See n. 14, trial judge’s opinion. It has been held that the copying or printing of something which has been lawfully copyrighted is an infringement “without any requirement that there be a sale or that profits be made from sale of the copies.” Chappell & Co., Inc. v. Costa, 45 F. Supp. 554, 556 (S.D.N.Y. 1942). In Wihtol v. Crow, 309 F. 2d 777 (8th Cir. 1962), the First Methodist Church was found to be liable for a choral instructor’s copying of a copyrighted song. See tie trial Judge’s opinion for quotations from B. Varmer, Pliotoduplieation of Copyrighted Material by Libraries, Study No. 15, Copyright Law Revision, Studies Prepared for the Senate Comm, on the Judiciary, 86th Cong., 2d Sess. 62-63 (1960) ; Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, House Committee Print, 87th Cong., 1st Sess. 25 — 26 (1961). M. Nlmmer, Nimmer on Copyright § 145 at 653-54 (1973 ed.). See also Crossland, The Rise and Fall of Fair Use: The Protection of Literary Materials Against Oopyright Infringement l)y Few and Developing Media, 20 S. Car. L. Rev. 153,154 (1968). It should be noted that the Fry survey was made when photocopying was not as prominent as It Is today. Even at that time, the Fry Report notes that larger publishers (who were photocopied most heavily) complained about the effects of photocopying. Fry Report at 86-87. Secondly, the Fry Report operates on the dubious assumption that in most cases the photocopy serves as a substitute for loaning the original material and does no more damage than would loaning of the original material. In" }, { "docid": "21323007", "title": "", "text": "copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner’s potential market for his work. While these criteria are interrelated and may vary in relative significance, the last one, i.e., the competitive character of the use, is often the most important. E.g., it has been held “fair use” to copy excerpts from literary works for purposes of criticism or review (Loew’s, Inc. v. CBS, Inc., 131 F. Supp. 165, 105 USPQ 302 (S.D. Cal. 1955), aff'd sub nom. Benny v. Loew’s, Inc., 239 F. 2d 532, 112 USPQ 11 (9th Cir. 1956), aff'd by an egually divided Court, 356 U.S. 43 (1958)); or to copy portions of scholarly works (Greenbie v. Noble, supra; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 136 USPQ 615 (S.D. Cal. 1963)). However, it is not “fair use” to copy substantial portions of a copyrighted work when the new work is a substitute for, and diminishes the potential market for, the original. Hill v. Whalen & Martell, Inc., 220 F. 359 (S.D.N.Y. 1914); Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841). And it has been held that wholesale copying of a copyrighted work is never “fair use” (Leon v. Pacific Tel. & Tel. Co., 91 F. 2d 484, 34 USPQ 237 (9th Cir. 1987); Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 127 USPQ 231 (D.C. Cir. 1960), vacated and remanded, 369 U.S. 111 (1962)), even if done to further educational or artistic goals and without intent to make profit. Wihtol v. Crow, 309 F. 2d 777, 135 USPQ 385 (8th Cir. 1962). Whatever may be the bounds of “fair use” as defined and applied by the courts, defendant is clearly outside those bounds. Defendant’s photocopying is wholesale copying and meets none of the criteria for “fair use.” The photocopies are exact duplicates of the original articles; are intended to be substitutes for, and serve the same purpose as, the original articles; and serve to diminish plaintiff’s potential market" }, { "docid": "21322917", "title": "", "text": "of the protection “To promote the Progress of Science and the useful Arts.” U.S. Const., art. 1, § 8. The House committee which recommended the 1909 Act said that copyright was “[n]ot primarily for the benefit of the author, but primarily for the benefit of the public.” H.E. Pep. No. 2222, 60th Cong., 2d Sess., p. 7. The Supreme Court has stated that “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.” Mazer v. Stein, 347 U.S. 201, 219 (1954) ; United States v. Paramount Pictures, 334 U.S. 131, 158 (1948). See Breyer, The Uneasy Case for Copyright: A study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970). To serve the constitutional purpose, “ ‘courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of art, science and industry.’ Berlin v. E.C. Publications, Inc., 329 F. 2d 541, 544 (2d Cir. 1984). Whether the privilege may justifiably be applied to particular materials turns initially on the nature of the materials, e.g., whether their distribution would serve the public interest in the free dissemination of information and whether their preparation requires some use of prior materials dealing with the same subject matter. Consequently, the privilege has been applied to works in the fields of science, law, medicine, history and biography.” Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303, 307 (C.A. 2, 1966). It has sometimes been suggested that the copying of an entire copyrighted work, any such work, cannot ever be “fair use,” but this is an overbroad generalization, unsupported by the decisions and rejected by years of accepted practice. The handwritten or typed copy of an article, for personal use, is one illustration, let alone the thousands of copies of poems, songs, or such items which have long been made by individuals, and sometimes given to lovers and others. Trial Judge James F. Davis, who considered the use now in dispute not to be “fair,” nevertheless agreed" } ]

[ { "docid": "22965029", "title": "", "text": "Cir.1982). However, the requirements for substantive relief under section 208(a) are considerably less stringent than those under 243(h); accordingly, there is a significant difference between the tests we apply in the two cases. See Cardoza-Fonseca v. INS, 767 F.2d 1448, 1451 (9th Cir.1985); Bolanos-Hernandez, 767 F.2d at 1282. When a petitioner seeks substantive relief under section 243(h) she must demonstrate a clear probability that her life or freedom would be threatened if she returned to her country. See INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984). As the Supreme Court explained, persecution must be more likely than not. Id. However, where the relief sought is asylum, persecution need not be more likely than not. Stevic, 104 S.Ct. at 2498 n. 19; Cardoza-Fonseca, 767 F.2d at 1454. The petitioner need only demonstrate that she is a refugee, i.e., that she has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Cardoza-Fonseca, 767 F.2d at 1451; 8 U.S.C. § 1101(a)(42)(A) (1982). As we have explained, the test for refugee status includes a subjective and an objective component. Bolanos-Hernandez, 767 F.2d at 1283 & n. 11. The subjective component is satisfied if the fear is genuine. The objective component is satisfied if persecution is, in fact, a “reasonable possibility.” Stevic, 104 S.Ct. at 2498; Carvajal-Munoz v. INS, 743 F.2d 562, 573-74 (7th Cir.1984). In. determining whether persecution is a reasonable possibility, the “conditions in the [alien’s] country of origin, its laws, and the experiences of others” are relevant. Bolanos-Hernandez, 767 F.2d at 1283 n. 11; United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status ¶ 42, 43 (1979) (cited hereinafter as Handbook ). The alien’s “desire to avoid a situation entailing the risk of persecution” may be enough to satisfy the well-founded-fear test and thus establish eligibility for asylum relief. Bolanos-Hernandez, 767 F.2d at 1283 n. 11; Handbook, supra, at ¶ 45. Because the well-founded-fear standard is more generous than the dear-probability standard, an alien who satisfies the latter," } ]

[ { "docid": "22697455", "title": "", "text": "Determining Refugee Status (Geneva, 1979) (U. N. Handbook). We agree the U. N. Handbook provides some guidance in construing the provisions added to the INA by the Refugee Act. INS v. Cardoza-Fonseca, 480 U. S., at 438-439, and n. 22. As we explained in Cardom-Fonseca, “one of Congress’ primary purposes” in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224, T. I. A. S. No. 6577 (1968), to which the United States acceded in 1968. 480 U. S., at 436-437. The Protocol incorporates by reference Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951), reprinted in 19 U. S. T., at 6259, 6264-6276. The basic withholding provision of § 1253(h)(1) parallels Article 33, which provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Id., at 6276. The Convention, in a part incorporated by the Protocol, also places certain limits on the availability of this form of relief; as pertinent here, the Convention states that its provisions “shall not apply to any person with respect to whom there are serious reasons for considering that... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.” Convention Art. I(F)(b), 19 U. S. T., at 6263-6264. Paragraph 156 of the U. N. Handbook, the portion relied upon by the Court of Appeals, states that in applying the serious nonpolitical crime provision of Convention Art. I(F)(b), “it is ... necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared ... N. Handbook may be a useful interpretative aid, but it is not binding on the" }, { "docid": "1753685", "title": "", "text": "form of two separate fact findings. In short, we hold it is reasonable for the BIA to interpret the statute as requiring only the factual finding of conviction of a particularly serious crime to support the determination of danger to the community. B. Weighing the Degree of Persecution Ramirez argues that the humanitarian concerns underlying the Refugee Act of 1980 mandate that the BIA should weigh the seriousness of his offense against the severity of the persecution he is likely to suffer before deciding whether he is entitled to relief. The United Nations High Commissioner for Refugees has stated that when an alien is considered ineligible for withholding because he has committed a serious nonpolitical crime outside the United States, 8 U.S.C. § 1253(h)(2)(C), it is “necessary to strike a balance between the nature of the offense presumed to have been committed by the applicant and the degree of persecution feared.” United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, ¶ 156 (Geneva 1979). As we have previously noted, the Handbook provides some assistance in interpreting our immigration laws. Hernandez-Ortiz v. INS, 777 F.2d 509, 514 n. 3 (9th Cir.1985). However, we do not agree with Ramirez’s view that the Handbook’s standard for evaluating eligibility for withholding relief should be the same in a situation of a final conviction of a serious crime in the United States, section 243(h)(2)(B), as in a situation where there is reason to believe an alien committed a crime outside the United States, section 243(h)(2)(C). The BIA’s rejection of this balancing approach is reasonable because Congress already struck the balance when it phrased the exception to withholding eligibility in mandatory rather than discretionary language. Matter of Rodriguez-Coto, Int. Dec. No. 2985 (BIA 1985). See also Garcia-Mir v. Smith, 766 F.2d 1478, 1487 n. 10 (11th Cir.1985) (“Both this court and the INS have previously rejected the balancing test.”) CONCLUSION The BIA properly refused to address the merits of Ramirez’s claims of probable persecution. Because there was no error in the BIA’s interpretation of section 243(h)(2)(B), the petition for review" }, { "docid": "22697453", "title": "", "text": "‘serious nonpolitieal crime’ in [§ 1253(h)(2)(C)] which would vary with the nature of evidence of persecution.” The -text and structure of § 1253(h) are consistent with this conclusion. Indeed, its words suggest that the BIA’s reading of the statute, not the interpretation adopted by the Court of Appeals, is the more appropriate one. As a matter of plain language, it is not obvious that an already-completed crime is somehow rendered less serious by considering the further circumstance that the alien may be subject to persecution if returned to his home country. See ibid. (“We find that the modifiejr]... ‘serious’... relate[s] only to the nature of the crime itself”). It is important, too, as at 209-210, that for aliens to be eligible for withholding at all, the statute requires a finding that their “life or freedom would be threatened in [the country to which deportation is sought] on account of their race, religion, nationality, membership in a particular social group, or political opinion,” i. e., that the alien is at risk of persecution in that country. 8 U. S. C. § 1258(h)(1). By its terms, the statute thus requires independent consideration of the risk of persecution facing the alien before granting withholding. It is reasonable to decide, as the BIA has done, that this factor can be considered on its own and not also as a factor in determining whether the crime itself is a serious, nonpolitical crime. Though the BIA in the instant case declined to make findings respecting the risk of persecution facing respondent, App. to Pet. for Cert. 18a, this was because it determined respondent was barred from withholding under the serious nonpolitical crime exception. Ibid. The BIA, in effect, found respondent ineligible for withholding even on the assumption he could establish a threat of persecution. This approach is consistent with the language and purposes of the statute. In reaching the contrary risk of persecution should be balanced against the alien’s criminal acts, the Court of Appeals relied on a passage from the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for" }, { "docid": "9864169", "title": "", "text": "BIA also properly refused withholding of deportation under section 243(h)(1), 8 U.S.C. § 1253(h)(1), since one valid ground for refusal to withhold is sufficient. Similarly, we need not decide whether the BIA correctly concluded that McMullen was not a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A), and thus not entitled to asylum under section 208 of the Act, 8 U.S.C. § 1158. We conclude that the substantial evidence supporting the conclusion that there are serious reasons to believe McMullen committed serious, nonpolitical crimes, in conjunction with McMullen’s illegal entry, is sufficient to support a discretionary denial of asylum under section 208. We could not find it an abuse of discretion for the Attorney General to deny asylum for one who he has probable cause to believe has committed such crimes, since Congress has found such individuals undesirable. Thus, we conclude that since McMullen is a member of one of the undesirable groups of section 243(h)(2), the denial of his asylum petition was not an abuse of discretion. See Carvajal-Munoz v. INS, 743 F.2d 562, 568-69 (7th Cir.1984). PETITION DENIED. . Section 243(h) of the Act, 8 U.S.C. § 1253(h), provides: (1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(19) of this title) to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion. (2) Paragraph (1) shall not apply to any alien if the Attorney General determines that— (A) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; (B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States; (C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;'" }, { "docid": "22697456", "title": "", "text": "or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Id., at 6276. The Convention, in a part incorporated by the Protocol, also places certain limits on the availability of this form of relief; as pertinent here, the Convention states that its provisions “shall not apply to any person with respect to whom there are serious reasons for considering that... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.” Convention Art. I(F)(b), 19 U. S. T., at 6263-6264. Paragraph 156 of the U. N. Handbook, the portion relied upon by the Court of Appeals, states that in applying the serious nonpolitical crime provision of Convention Art. I(F)(b), “it is ... necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared ... N. Handbook may be a useful interpretative aid, but it is not binding on the Attorney General, the BIA, or United States courts. “Indeed, the Handbook itself dis claims such force, explaining that ‘the determination of refugee status under the 1951 Convention and the 1967 Protocol ... is incumbent upon the Contracting State in whose territory the refugee finds himself/ ” INS v. Cardoza-Fonseca, 480 U. S., at 439, n. 22 (quoting U. N. Handbook ¶ (ii), at 1). See also 480 U. S., at 439, n. 22 (“We do not suggest, of course, that the explanation in the U. N. Handbook has the force of law or in any way binds the INS . . .”)• For the reasons given, supra, at 425-426, we think the BIA’s determination that § 1253(h)(2)(C) requires no additional balancing of the risk of persecution rests on a fair and permissible reading of the statute. See also T v. Secretary of State for the Home Dept., 2 All E. R. 865, 882 (H. L. 1996) (Lord Mustill) (“[Tjhe crime either is or is not political when committed, and its character cannot depend on the" }, { "docid": "22587080", "title": "", "text": "simply imposing our own construction of the statute. Aguirre II involved the definition of a “serious nonpolitical crime,” a provision of asylum law that prevents an applicant, otherwise eligible for withholding of deportation, from remaining in the United States because of crimes committed in his country of origin. See 526 U.S. at 419, 119 S.Ct. 1439; 8 U.S.C. § 1253(h)(2)(C). Applying the definition of a “serious nonpolitical crime” adopted in one of its earlier decisions, the BIA had concluded that the applicant committed serious nonpolitical crimes. See Aguirre II, 526 U.S. at 422-23, 119 S.Ct. 1439. We reversed, concluding that the BIA had incorrectly interpreted the provision. See Aguirre I, 121 F.3d at 524. We held that the BIA had erred because it failed to consider the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (“UN Hand book”) and did not heed our precedent when it applied the serious nonpolitical crime provision. See id. We held that following the UN Handbook and our cases, the BIA should have considered the persecution the petitioner might suffer if he returned, whether his crimes were grossly disproportionate to their alleged objectives, and whether his actions were “atrocious” as defined by our cases. See id. Judge Kleinfeld dissented. See id. at 524-25. In turn, the Supreme Court reversed and held that we had not appropriately deferred to the BIA as the agency charged with administering the statute. See Aguirre II, 526 U.S. at 425, 119 S.Ct. 1439. In analyzing the present case, the majority fails to follow the principles and path laid out in Aguirre II. In Lai’s case, the BIA interpreted its own decision (Chen) as codified in the regulations (8 C.F.R. § 208.13(b)(1)(ii)). Such an interpretation must be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Thus, the issue before us, of course, is whether the BIA’s requirement that an applicant show “lasting ... disability” in order to avoid the well-founded fear of future persecution element" }, { "docid": "1753681", "title": "", "text": "does not require that we consider the merits of his applications for asylum, withholding of deportation or voluntary departure. We must determine only whether the BIA’s interpretation of section 243(h)(2)(B) of the Refugee Act of 1980, 8 U.S.C. § 1253(h)(2)(B), is reasonable, and whether that provision has been properly applied to deny Ramirez relief from deportation. We review these questions of law de novo but with deference to the BIA’s interpretation of the statute. Mahini v. INS, 779 F.2d 1419, 1420 (9th Cir.1986). Ramirez argues that the BIA erred in failing to see that the statute requires a two step determination of (1) conviction of a particularly serious crime and (2) future dangerousness to the community. Ramirez also contends that section 243(h)(2)(B) requires the BIA to weigh the seriousness of the crime of which an alien is convicted against the degree of persecution he is likely to suffer in determining his eligibility for relief. We address each argument in turn. A. Two Step Finding Section 243(h)(2)(B) enumerates one of the exceptions to withholding of deportation relief. While withholding is available to an alien whose life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, 8 U.S.C. § 1253(h)(1), the relief is not available: (2) ... to any alien if the Attorney General determines that— (B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States. 8 U.S.C. § 1253(h)(2)(B). There is no question that this circuit has ratified the BIA’s consistent view that convictions for drug possession and trafficking are particularly serious within the meaning of section 243(h)(2)(B). Mahini, 779 F.2d at 1421. Ramirez argues that the BIA must make an additional, separate finding that the alien with such a drug conviction constitutes a danger to the community. He argues that two findings are mandated by the language of the statute and by our decision in Mahini. The BIA found that there is no “statutory requirement for a separate determination of dangerousness focusing on the" }, { "docid": "1753686", "title": "", "text": "the Handbook provides some assistance in interpreting our immigration laws. Hernandez-Ortiz v. INS, 777 F.2d 509, 514 n. 3 (9th Cir.1985). However, we do not agree with Ramirez’s view that the Handbook’s standard for evaluating eligibility for withholding relief should be the same in a situation of a final conviction of a serious crime in the United States, section 243(h)(2)(B), as in a situation where there is reason to believe an alien committed a crime outside the United States, section 243(h)(2)(C). The BIA’s rejection of this balancing approach is reasonable because Congress already struck the balance when it phrased the exception to withholding eligibility in mandatory rather than discretionary language. Matter of Rodriguez-Coto, Int. Dec. No. 2985 (BIA 1985). See also Garcia-Mir v. Smith, 766 F.2d 1478, 1487 n. 10 (11th Cir.1985) (“Both this court and the INS have previously rejected the balancing test.”) CONCLUSION The BIA properly refused to address the merits of Ramirez’s claims of probable persecution. Because there was no error in the BIA’s interpretation of section 243(h)(2)(B), the petition for review is DENIED. . Ramirez’s third argument on appeal, that the IJ erred in refusing to hear testimony from an expert on conditions in El Salvador, is irrelevant in light of our holding on his primary statutory arguments." }, { "docid": "1753680", "title": "", "text": "requests for relief. As to voluntary departure, the Board, citing 8 U.S.C. §§ 1101(f)(3), (8) and 1182(a)(23), found that Ramirez was statutorily barred from establishing good moral character because of his narcotics conviction and subsequent confinement. As to asylum and withholding, the Board noted that pending the appeal, Ramirez’s conviction for selling heroin had been affirmed, by the California Court of Appeals and was thus final for immigration purposes. The Board found that the alien’s heroin trafficking conviction made him statutorily ineligible for withholding of deportation under section 243(h)(2)(B) of the Refugee Act of 1980, 8 U.S.C. § 1253(h)(2)(B), and warranted a determination that he would not merit a discretionary grant of asylum, even if eligible. The Board rejected Ramirez’s arguments that: (1) section 243(h)(2)(B) requires two separate and distinct findings that he had committed a particularly serious crime and that he constituted a danger to the community of the United States; and (2) in determining the seriousness of a crime under section 243(h)(2)(B), the degree of persecution threatened must be considered. ANALYSIS Ramirez’s petition does not require that we consider the merits of his applications for asylum, withholding of deportation or voluntary departure. We must determine only whether the BIA’s interpretation of section 243(h)(2)(B) of the Refugee Act of 1980, 8 U.S.C. § 1253(h)(2)(B), is reasonable, and whether that provision has been properly applied to deny Ramirez relief from deportation. We review these questions of law de novo but with deference to the BIA’s interpretation of the statute. Mahini v. INS, 779 F.2d 1419, 1420 (9th Cir.1986). Ramirez argues that the BIA erred in failing to see that the statute requires a two step determination of (1) conviction of a particularly serious crime and (2) future dangerousness to the community. Ramirez also contends that section 243(h)(2)(B) requires the BIA to weigh the seriousness of the crime of which an alien is convicted against the degree of persecution he is likely to suffer in determining his eligibility for relief. We address each argument in turn. A. Two Step Finding Section 243(h)(2)(B) enumerates one of the exceptions to withholding of deportation" }, { "docid": "9864173", "title": "", "text": "to whether the clear and convincing evidence standard continues to apply to section 243(h)(2)(A) after the Refugee Act, we conclude that it makes no sense to require the Attorney General to show by \"clear and convincing evidence” that there are \"serious reasons” to believe such a crime has been committed. This is tantamount to requiring clear and convincing evidence of what essentially is a finding of probable cause. We conclude, therefore, that the higher standard adopted in Artukovic does not apply to section 243(h)(2)(C), and conclude that this case is con- trolled by the substantial evidence standard adopted in McMullen I, 658 F.2d at 1316. GOODWIN, Circuit Judge (specially concurring): I agree that the BIA did not abuse its discretion in denying refugee status to McMullen, and that McMullen’s conduct before entering the United States renders him ineligible for mandatory withholding of deportation. I disagree with the majority’s reliance upon § 1253(h)(2)(C) to show his ineligibility. Section 1253(h)(2)(C) envisions a showing of the alien’s personal culpability for the serious nonpolitical crime allegedly committed. The majority attributes to McMullen responsibility for the acts of other PIRA members during the period of his membership. Because none of the acts allegedly committed by McMullen can properly be cast as nonpolitical, the reliance upon § 1253(h)(2)(C) is misplaced. The BIA, however, relied in the alternative upon § 1253(h)(2)(A) to deny McMullen § 1253(h)(l)’s protection. Section 1253(h)(2)(A) creates an exception to the mandatory withholding of deportation when the Attorney General determines that “the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” McMullen admits to having illegally imported arms for PIRA use, and to having trained its members. The BIA found that the PIRA killed or attempted to kill those who publicly opposed their activities. McMullen’s admitted role in PIRA operations, though only tangentially related to such attacks, amounts to the assistance of this persecution on account of political opinion. I stress that it is the attacks aimed at suppressing the political debate and not the" }, { "docid": "19651673", "title": "", "text": "my view, the legislative history indicates that Congress’ choice of the words “well-founded” fear as the standard of eligibility for asylum was intended to carry forward the practice of the Attorney General in adjudicating asylum applications. The Attorney General had concluded that the standard for asylum was substantially identical to the standard for withholding of deportation. His decision to interpret the language of § 208 in the same way is entirely reasonable. B Second, the Court relies on materials interpreting the United Nations Protocol. Ante, at 437-440. For several reasons, I find these materials to be only marginally rele vant. Both the President and the Senate thought that the Protocol was perfectly consistent with our country’s immigration laws. See INS v. Stevic, 467 U. S. 407, 417 (1984) (citing legislative history). We should be reluctant to assume that our country has been violating the Protocol during the 20 years since its adoption. Moreover, as the Court recognizes, statements by the United Nations High Commissioner for Refugees have no binding force, because “‘the determination of refugee status under the . . . Protocol... is incumbent upon the Contracting State.’” Ante, at 439, n. 22 (quoting Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status l(ii) (Geneva, 1979)). In any event, the materials discussed by the Court shed little or no light on the question presented by this case. None of them states that the burden of proof for nonrefoulement under Article 33.1 of the United Nations Protocol of 1967 — a remedy essentially identical to withholding of deportation under § 243(h) of the Act — is higher than the burden of proof for asylum under Article 34. The only thing the materials tend to establish is that a mathematical approach to the likelihood of persecution in asylum cases is arguably inconsistent ■with the sense of the drafters of the Protocol. The BIA has declined to adopt such an approach. See supra, at 457-459. It is simply irrelevant that this approach might be inconsistent with the views of commentators on the Protocol. C" }, { "docid": "9864172", "title": "", "text": "this framework in two ways. First, although it retained the \"ordered, incited, assisted, or otherwise participated in ... persecution\" language, it eliminated the references to Nazi Germany, thus expanding the universe of such undesirables. 8 U.S.C. § 1253(h)(2)(A). Second, the Refugee Act of 1980 added three additional categories of undesirables, including the serious nonpolitical criminal category at issue in this case. 8 U.S.C. § 1253(h)(2)(B)-(D). There is a significant difference between category A, the successor to the language interpreted in Artukovic, and category C. Category A applies “if the Attorney General determines that —(A) the alien ordered, incited, assisted, or otherwise persecuted any person____” Category C, however, applies “if the Attorney General determines that — (C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime____” (Emphasis added.) A finding that there are \"serious reasons” to believe the alien committed a serious nonpolitical crime is far less stringent than a determination that the alien actually \"ordered, incited, assisted, or otherwise participated in ... persecution.” While we express no opinion as to whether the clear and convincing evidence standard continues to apply to section 243(h)(2)(A) after the Refugee Act, we conclude that it makes no sense to require the Attorney General to show by \"clear and convincing evidence” that there are \"serious reasons” to believe such a crime has been committed. This is tantamount to requiring clear and convincing evidence of what essentially is a finding of probable cause. We conclude, therefore, that the higher standard adopted in Artukovic does not apply to section 243(h)(2)(C), and conclude that this case is con- trolled by the substantial evidence standard adopted in McMullen I, 658 F.2d at 1316. GOODWIN, Circuit Judge (specially concurring): I agree that the BIA did not abuse its discretion in denying refugee status to McMullen, and that McMullen’s conduct before entering the United States renders him ineligible for mandatory withholding of deportation. I disagree with the majority’s reliance upon § 1253(h)(2)(C) to show his ineligibility. Section 1253(h)(2)(C) envisions a showing of the alien’s personal culpability for the serious nonpolitical crime allegedly committed. The majority" }, { "docid": "1753684", "title": "", "text": "United States.” See Crespo-Gomez v. Richard, 780 F.2d 932, 934 (11th Cir.1986) (“the statute sets forth a cause and effect relationship: the fact that the alien has committed a particularly serious crime makes the alien dangerous within the meaning of the statute.”); Zardui-Quintana v. Richard, 768 F.2d 1213, 1222-1223 (11th Cir.1985) (Vance, J., concurring) (same). Our decision in Mahini does not require a different result. In Mahini we said: [T]he Board reasonably concluded that petitioner’s convictions for possession of heroin with intent to distribute and for conspiracy to aid and abet the distribution of heroin were particularly serious. Moreover, because of heroin’s deleterious effect on people, the Board did not err in ruling that the petitioner constituted a danger to the community within the meaning of section 243(h)(2)(B) of the Refugee Act. 779 F.2d at 1421. The court’s articulation of the reason that it is reasonable for the BIA to equate conviction of possession of heroin with danger to the community does not translate into a requirement that the BIA couch its reasoning in the form of two separate fact findings. In short, we hold it is reasonable for the BIA to interpret the statute as requiring only the factual finding of conviction of a particularly serious crime to support the determination of danger to the community. B. Weighing the Degree of Persecution Ramirez argues that the humanitarian concerns underlying the Refugee Act of 1980 mandate that the BIA should weigh the seriousness of his offense against the severity of the persecution he is likely to suffer before deciding whether he is entitled to relief. The United Nations High Commissioner for Refugees has stated that when an alien is considered ineligible for withholding because he has committed a serious nonpolitical crime outside the United States, 8 U.S.C. § 1253(h)(2)(C), it is “necessary to strike a balance between the nature of the offense presumed to have been committed by the applicant and the degree of persecution feared.” United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, ¶ 156 (Geneva 1979). As we have previously noted," }, { "docid": "19910030", "title": "", "text": "and to contend that the “particularly serious” offense inquiry can be performed without reference to Frentescu’s “danger to the community” element, as the BIA does, seems doubly problematic. See N-A-M, 24 I. & N. Dec. at 342 (“On some occasions, we have focused exclusively on the elements of the offense, i.e., the nature of the crime.”). For the reasons above, arguments made by the amicus, United Nations High Commissioner for Refugees (UNHCR) (to whom our Supreme Court has consistently turned for assistance in interpreting our obligations under the Refugee Convention), are noteworthy. See, e.g., Negusie v. Holder, — U.S. -, 129 S.Ct. 1159, 1175, 173 L.Ed.2d 20 (2009) (citing Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status ¶¶ 157, 162 (reedited Jan. 1992) in support of its analysis of the nonrefoulement (the mandatory withholding of deportation) principle); Sale v. Haitian Ctrs. Council, 509 U.S. 155, 182, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993) (same); INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“In interpreting the Protocol ... we are further guided by the analysis set forth in the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979).”). As UNHCR notes, our Refugee Act, which implements the Refugee Convention, and specifically, § 1231, embodies a Congressional commitment to the international legal principle of nonrefoulement, as it appears in Refugee Convention Article 33. See INS v. Stevic, 467 U.S. 407, 421, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (discussing 8 U.S.C. § 1253(h), now codified at 8 U.S.C. § 1231(b)(3) (2006), and noting that the statutory provision regarding withholding of deportation, as amended, conformed to the language of Article 33); see also Ins v. Cardoza-Fonseca, 480 U.S. 421, 441 n. 25, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (stating that “[t]he 1980 Act made withholding of deportation under [INA] § 243(h) mandatory in order to comply with Article 33.1”). And a wealth of persuasive authority reveals that under both the Convention and the Refugee Act" }, { "docid": "22697454", "title": "", "text": "8 U. S. C. § 1258(h)(1). By its terms, the statute thus requires independent consideration of the risk of persecution facing the alien before granting withholding. It is reasonable to decide, as the BIA has done, that this factor can be considered on its own and not also as a factor in determining whether the crime itself is a serious, nonpolitical crime. Though the BIA in the instant case declined to make findings respecting the risk of persecution facing respondent, App. to Pet. for Cert. 18a, this was because it determined respondent was barred from withholding under the serious nonpolitical crime exception. Ibid. The BIA, in effect, found respondent ineligible for withholding even on the assumption he could establish a threat of persecution. This approach is consistent with the language and purposes of the statute. In reaching the contrary risk of persecution should be balanced against the alien’s criminal acts, the Court of Appeals relied on a passage from the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) (U. N. Handbook). We agree the U. N. Handbook provides some guidance in construing the provisions added to the INA by the Refugee Act. INS v. Cardoza-Fonseca, 480 U. S., at 438-439, and n. 22. As we explained in Cardom-Fonseca, “one of Congress’ primary purposes” in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224, T. I. A. S. No. 6577 (1968), to which the United States acceded in 1968. 480 U. S., at 436-437. The Protocol incorporates by reference Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951), reprinted in 19 U. S. T., at 6259, 6264-6276. The basic withholding provision of § 1253(h)(1) parallels Article 33, which provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life" }, { "docid": "1753679", "title": "", "text": "and voluntary departure and held that hearing on November 26, 1985. In a decision dated December 6, 1985, the IJ found Ramirez to be deportable on the ground of entry without inspection, and denied his applications for asylum, withholding of deportation and voluntary departure. The IJ rejected Ramirez’s asylum and withholding applications because he did not believe Ramirez had established a well-founded fear or a clear probability of persecution. The IJ found Ramirez to be statutorily ineligible for voluntary departure because he could not as a matter of law establish the good moral character required by 8 U.S.C. § 1254(e) since he had served more than 180 days in jail as the result of a conviction. See 8 U.S.C. § 1101(f)(7). The IJ further stated that he would, in any event, deny voluntary departure as a matter of discretion due to the serious nature of petitioner’s conviction. The BIA dismissed Ramirez’s appeal in a decision dated March 20, 1986. The Board upheld the IJ’s finding of deportability, and then turned to consideration of Ramirez’s various requests for relief. As to voluntary departure, the Board, citing 8 U.S.C. §§ 1101(f)(3), (8) and 1182(a)(23), found that Ramirez was statutorily barred from establishing good moral character because of his narcotics conviction and subsequent confinement. As to asylum and withholding, the Board noted that pending the appeal, Ramirez’s conviction for selling heroin had been affirmed, by the California Court of Appeals and was thus final for immigration purposes. The Board found that the alien’s heroin trafficking conviction made him statutorily ineligible for withholding of deportation under section 243(h)(2)(B) of the Refugee Act of 1980, 8 U.S.C. § 1253(h)(2)(B), and warranted a determination that he would not merit a discretionary grant of asylum, even if eligible. The Board rejected Ramirez’s arguments that: (1) section 243(h)(2)(B) requires two separate and distinct findings that he had committed a particularly serious crime and that he constituted a danger to the community of the United States; and (2) in determining the seriousness of a crime under section 243(h)(2)(B), the degree of persecution threatened must be considered. ANALYSIS Ramirez’s petition" }, { "docid": "22822428", "title": "", "text": "withholding of deportation to those aliens who qualify as “refugees.” See 8 C.F.R. § 240.33(c). A “refugee” is defined as an alien who is unwilling or unable to return to his or her country of origin due to “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A); see 8 C.F.R. Part 208. In a parallel, but converse, provision to the “political offense” exception to extradition, the INA excludes from withholding of deportation aliens for whom “there are serious reasons for considering that the alien has committed a serious nonpolitical crime.” 8 U.S.C. § 1253(h)(2)(C); see also 8 U.S.C. §§ 1101(a)(42)(A) and 1253(h)(2)(A). However, the “political offense” determination in extradition proceedings and the “serious nonpolitical crime” assessment in immigration proceedings are separate and distinct inquiries. See McMullen, 788 F.2d at 596. A determination that an alien’s acts are “political offenses” for purposes of denying extradition should have no effect on the BIA’s determination of whether an asylum applicant has committed a serious nonpolitical offense because “extradition determinations have no res judicata effect in subsequent judicial proceedings.” Id. at 597 (citing Quinn, 783 F.2d at 786 n. 3, 814 n. 36). C Since the enactment of the Refugee Act, the effect of the extradition process on pending asylum proceedings has been infrequently explored. As a matter of course, the BIA has held deportation proceedings in abeyance while extradition proceedings are pending. See Matter of Perez-Jimenez, 10 I & N Dec. 309, 314 (BIA 1963); Gordon, Mailman, & Yale-Loehr, 6 Immigration Law and Procedure § 72.01[5j; Restatement (Third) of Foreign Relations § 478, reporter’s note 6. In Perez-Jimenez, the BIA reasoned that holding asylum proceedings in abeyance pending completion of the extradition process was the preferred procedure because such proceedings would “complicate” the extradition proceedings and “[ojrderly procedure” necessitated the deferral of such proceedings. 10 I & N Dec. at 314. The BIA further noted that asylum proceedings “would actually have served no useful purpose” once a warrant of extradition was issued by the Secretary" }, { "docid": "22773241", "title": "", "text": "that we view futility arguments with circumspection. Salfi expressly held that a statutory exhaustion requirement could not be dispensed with “merely by a judicial conclusion of futility.” 422 U.S. at 766, 95 S.Ct. at 2467. See also Power Plant Div., Brown & Root Inc. v. O.S.H.R.C., 673 F.2d 111, 115 (5th Cir. Unit B 1982). . Plaintiffs acknowledge that the district court’s order is somewhat overbroad since it stays the exclusion orders of even those individuals who will be ineligible for asylum or withholding of deportation because of certain statutory and regulatory exceptions, see 8 U.S.C. § 1253(h)(2); 8 C.F.R. § 208.8(f). They contend, however, that the court’s order was proper because it is impossible to determine at this time which individuals will be ineligible under 8 U.S.C. § 1253(h)(2) and 8 C.F.R. § 208.8(f). Plaintiffs’ contention is based on their mistaken belief that before an alien may be denied withholding of deportation or asylum under 8 U.S.C. § 1253(h)(2) or 8 C.F.R. § 208.8(f), the agency must balance the degree of persecution which an alien will face if deported against the seriousness of the alien’s past criminal activity. Plaintiffs cite the Handbook on Procedures and Criteria for Determining Refugee Status as mandating this “balancing test.\" Both this court and the INS have previously rejected the balancing test. See Fernandez-Roque v. Smith, No. 84-8993, slip op. (11th Cir. Jan. 24, 1985); Matter of Rodriguez-Coto, No. [ AXX XXX XXX ], slip op. at 2-3 (BIA Feb. 21, 1985). Ineligible plaintiffs’ motions to reopen may properly be denied without expenditure of further administrative or judicial resources. . The many factual variations which give rise to the plaintiffs’ alternative claims, as well as the government’s defenses, highlight a problem that has plagued this litigation throughout much of its existence. Decisions regarding parole, asylum, and withholding of deportation must be made only after considering the particular circumstances of each individual’s case. The parties acknowledge that before any of the forms of relief being sought may be granted, individual hearings will be necessary so that the particular circumstances of each individual’s case may be" }, { "docid": "22587079", "title": "", "text": "an explicit on-going disability now is not contrary to these previous BIA decisions that relied heavily on the presence and absence of such a disability. At worst, the “lasting ... disability” requirement is a narrow view of what constitutes compelling reasons. In INS. v. Yueh-Shaio Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996), the Supreme Court reasoned that since “entry fraud” was “a rule of the INS’s own invention, the INS is entitled, within reason, to define that exception as it pleases.” Id. Similarly, a ■ narrow view of “compelling reasons” is not a disregard of the BIA’s general policy of considering the long-lasting effects of the persecution. After all, the Chen exception is a regulation created by the BIA, and, as such, it is entitled to define it as it pleases. 3 Sadly, the majority repeats the errors of Aguirre I, which was reversed by Aguirre II, in which the Supreme Court admonished this court for having failed to accord the BIA’s interpretations the deference they are owed and for simply imposing our own construction of the statute. Aguirre II involved the definition of a “serious nonpolitical crime,” a provision of asylum law that prevents an applicant, otherwise eligible for withholding of deportation, from remaining in the United States because of crimes committed in his country of origin. See 526 U.S. at 419, 119 S.Ct. 1439; 8 U.S.C. § 1253(h)(2)(C). Applying the definition of a “serious nonpolitical crime” adopted in one of its earlier decisions, the BIA had concluded that the applicant committed serious nonpolitical crimes. See Aguirre II, 526 U.S. at 422-23, 119 S.Ct. 1439. We reversed, concluding that the BIA had incorrectly interpreted the provision. See Aguirre I, 121 F.3d at 524. We held that the BIA had erred because it failed to consider the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (“UN Hand book”) and did not heed our precedent when it applied the serious nonpolitical crime provision. See id. We held that following the UN Handbook and our cases, the BIA should have" }, { "docid": "9864150", "title": "", "text": "McMullen had demonstrated an adequate showing of probable persecution to avoid deportation. See McMullen I, 658 F.2d at 1317-19. We did not decide whether McMullen’s break from the PIRA constituted a political belief within the meaning of section 243(h) of the Immigration and Naturalization Act, 8 U.S.C. § 1253(h) (the Aet), whether McMullen represented a danger to the United States, or whether McMullen would be persecuted by the Garda. Id. at 1319 & n. 6. In light of the outcome of the appeal to this court, the parties agreed to the BIA’s reconsideration of its October 1, 1980, decision. See 8 C.F.R. § 3.2 (1985). The BIA again sustained its reversal of the IJ’s determination that McMullen should not be deported. The BIA found that McMullen’s claimed persecution was not based on political opinion or on any other enumerated ground for relief in 8 U.S.C. § 1253(h)(1). The BIA also found that McMullen was statutorily ineligible for asylum as a refugee under section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A), which excludes from refugee status “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” See also 8 U.S.C. § 1253(h)(2)(A) (withholding of deportation unavailable to any alien who fits these categories). This decision was based upon McMullen’s active membership and leadership, including his training of terrorists and gun-running, by which he knowingly furthered PIRA’s campaign of terrorist atrocities. The BIA also found McMullen statutorily ineligible for withholding of deportation under 8 U.S.C. § 1253(h)(2)(C) based on the same activities. Finally, the BIA determined it would deny asylum as a matter of its discretion. II We first consider whether the BIA’s finding that McMullen was ineligible for withholding of deportation under section 243(h)(2)(C) on the basis of “serious reasons for considering that [McMullen] has committed a serious nonpolitical crime” is supported by substantial evidence. If so, we will not need to address the other issues presented to us. A. Congress added subsection (h) to section 243 of the Act as part of" } ]

[ { "docid": "22156231", "title": "", "text": "general references to the compact. This Court may not assume that Congress had no purpose to aid navigation, and that its real intention was that the stored water shall be so used as to defeat the declared primary purpose. Moreover, unless and until the stored water, which will consist largely of flood waters now wasted, is consumed in new irrigation projects or in domestic use, substantially all of it will be available for the improvement of navigation. The possible abuse of the power to regulate navigation is not an argument against its existence. Lottery Case, 188 U. S. 321, 363; Flint v. Stone Tracy Co., 220 U. S. 107, 168-69; Wilson v. New, 243 U. S. 332, 354; Hamilton v. Kentucky Distilleries, supra; Alaska Fish Salting & By-Products Co. v. Smith, 255 U. S. 44, 48. Since the grant of authority to build the dam and reservoir is valid as an exercise of the Constitutional power to improve navigation, we have no occasion to decide whether the authority to construct the dam and reservoir might not also have been constitutionally conferred for the specified purpose of irrigating public lands of the United States. Compare United States v. Rio Grande Dam and Irrigation Co., 174 U. S. 690, 703; United States v. Alford, 274 U. S. 264. Or for the speci fied purpose of regulating the flow and preventing the floods in this interstate river. Or as a means of conserving and apportioning its waters among the States equitably entitled thereto. Or for purpose of performing international obligations. Compare Missouri v. Holland, 252 U. S. 416. Second. The further claim is that the mere existence of the Act will invade quasi-sovereign rights of Arizona by preventing the State from exercising its right to prohibit or permit under its own laws the appropriation of unappropriated waters flowing within or on its borders. The opportunity and need for further appropriations are fully set forth in the bill. Arizona is arid and irrigation is necessary for cultivation of additional land. The future growth and welfare of the State are largely dependent upon such reclamation." } ]

[ { "docid": "19333197", "title": "", "text": "lakes.” Id., at 203. Moreover, the Government’s ability to control and develop navigable waters would not be impaired if the land beneath the navigable waters passed to the State. Id., at 202; see also Arizona v. California, 373 U. S. 546, 597-598 (1963); Arizona v. California, 283 U. S. 423, 451-452, 457 (1931). We also considered whether certain references to the bed of Utah Lake in reports by the Geological Survey, coupled with the 1890 Act’s requirement that selected sites remain segregated, accomplished a reservation of the lake bed. We concluded that the references to the lake bed in the Survey documents, when placed in proper context, did not indicate that the bed was included within the reservation. Utah Div. of State Lands, supra, at 206. Finally, we held that even if the 1888 or 1890 Acts reflected a clear intent to include submerged lands within a reservation, there was no evidence that the United States intended to defeat future States’ entitlement to any land reserved. Again, our analysis focused on the fact that the transfer of title to the lake bed would not prevent the Government from developing a reservoir or water reclamation project at the lake. Id., at 208. Montana and Utah Div. of State Lands establish that the fact that navigable waters are within the boundaries of a conveyance or reservation does not in itself mean that submerged lands beneath those waters were conveyed or reserved. But Alaska’s reliance on these cases is misplaced for two reasons. First, the Executive Order of 1923 does not merely define a boundary that encloses a body of navigable water. Rather, in describing a boundary following the ocean side of offshore islands and reefs, the Order created a Reserve that necessarily embraced certain submerged lands — specifically, tidelands shoreward of the barrier islands. Second, Montana and Utah Div. of State Lands establish that the purpose of a conveyance or reservation is a critical factor in determining federal intent. See also Alaska Pacific Fisheries v. United States, 248 U. S. 78, 87-89 (1918) (reservation of “body of lands” in southeastern Alaska for" }, { "docid": "21914953", "title": "", "text": "the federal reservation; the United States would additionally have to establish that Congress affirmatively intended to defeat the future State’s title to such land. I — < 1 — 1 1 — ( We conclude that the 1888 Act fails to make sufficiently plain either a congressional intent to include the bed of Utah Lake within the reservation or an intent to defeat Utah’s claim to title under the equal footing doctrine. The 1888 Act provided that the reserved lands were “reserved from sale as the property of the United States, and shall not be subject . . . to entry, settlement or occupation until further provided by law.” 25 Stat. 527. The words of the 1888 Act did not necessarily refer to lands under navigable waters because lands under navigable lakes and rivers such as the bed of Utah Lake were already the property of the United States, and were already exempt from sale, entry, settlement, or occupation under the general land laws. As this Court recognized in Shively v. Bowlby, supra, at 48, “Congress has never undertaken by general laws to dispose of” land under navigable waters. See also Mann v. Tacoma Land Co., 153 U. S. 273, 284 (1894) (applying Shively v. Bowlby, supra, to hold that “the general legislation of Congress in respect to public lands does not extend to tide lands”); Illinois Central R. Co. v. Illinois, 146 U. S. 387, 437 (1892) (holding that “the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters . . . applies, which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea”). Therefore, little purpose would have been served by the reservation of the bed of Utah Lake. Moreover, the concerns with monopolization and speculation that motivated Congress to enact the 1888 Act, see P. Gates, History of Public Land Law Development 641 (1968), had nothing to do with the beds of navigable rivers and lakes. The intent to reach only land that would" }, { "docid": "21914962", "title": "", "text": "Utah Lake in either the 1888 Act or the 1890 Act, however, Congress did not clearly express an intention to defeat Utah’s claim to the lakebed under the equal footing doctrine upon entry into statehood. The United States points to no evidence of a congressional intent to defeat Utah’s entitlement to the bed of Utah Lake, and the structure and the history of the 1888 Act strongly suggest that Congress had no such intention. On its face, the 1888 Act does not purport to defeat the entitlement of future States to any land reserved. Instead, the Act merely provides that any reserved land is “reserved from sale” and “shall not be subject... to entry, settlement or occupation”; it makes no mention of the States’ entitlement to the beds of navigable rivers and lakes upon entry into statehood. The transfer of title of the bed of Utah Lake to Utah, moreover, would not necessarily prevent the Federal Government from subsequently developing a reservoir or water reclamation project at the lake in any event. See, e. g., Arizona v. California, 283 U. S. 423, 451-452, 457 (1931) (holding that the United States has power to construct a dam and reservoir on a navigable river and reserving question of such power for purpose of irrigating public lands). Finally, the broad sweep of the 1888 Act cannot be reconciled with an intent to defeat the States’ title to the land under navigable waters. As noted above, the 1888 Act “had the practical effect of reserving all of the public lands in the West from settlement.” California v. United States, 438 U. S., at 659. In light of the congressional policy of defeating the future States’ title to the lands under navigable waters only “in exceptional instances” in case of “international duty or public exigency,” United States v. Holt State Bank, supra, at 55, we find it inconceivable that Congress intended to defeat the future States’ title to all such land in the western United States. Such an action would be wholly at odds with Congress’ policy of holding this land for the ultimate benefit" }, { "docid": "21914951", "title": "", "text": "exceptional instances,” and in light of this policy, whether faced with a reservation or a conveyance, we simply cannot infer that Congress intended to defeat a future State’s title to land under navigable waters “unless the intention was definitely declared or otherwise made very plain.” United States v. Holt State Bank, supra, at 55. When Congress intends to convey land under navigable waters to a private party, of necessity it must also intend to defeat the future State’s claim to the land. When Congress reserves land for a particular purpose, however, it may not also intend to defeat a future State’s title to the land. The land remains in federal control, and therefore may still be held for the ultimate benefit of future States. Moreover, even if the land under navigable water passes to the State, the Federal Government may still control, develop, and use the waters for its own purposes. Arizona v. California, 373 U. S. 546, 597-598 (1963). Congress, for example, may intend to create a reservoir, but also intend to let the State obtain title to the land underneath this reservoir upon entry into statehood. Such an intent would not be unusual. In Montana v. United States, 450 U. S. 544 (1981), we found that Congress intended to permit the State to take title to the béd of a navigable river even though the river was in the midst of an Indian Reservation, and in United States v. Holt State Bank, supra, we held that Congress intended the State to hold title to the bed of a navigable lake wholly within the boundaries of an Indian Reservation. Given the longstanding policy of holding land under navigable waters for the ultimate benefit of the States, therefore, we would not infer an intent to defeat a State’s equal footing entitlement from the mere act of reservation itself. Assuming, arguendo, that a reservation of land could be effective to overcome the strong presumption against the defeat of state title, the United States would not merely be required to establish that Congress clearly intended to include land under navigable waters within" }, { "docid": "21914955", "title": "", "text": "otherwise be available for sale and settlement is made manifest by the Act’s proviso: “Provided, That the President may at any time in his discretion by proclamation open any portion or all of the lands reserved by this provision to settlement under the homestead laws.” 25 Stat. 527. This proviso would permit the President to open any land reserved under the 1888 Act to settlement under the homesteading laws. We find it inconceivable that Congress intended by this simple proviso to abandon its long-held and unyielding policy of never permitting the sale or settlement of land under navigable waters under the general land laws. Shively v. Bowlby, 152 U. S., at 48. The proviso can be interpreted consistently with that policy only if lands under navigable waters were not subject to reservation under the 1888 Act in the first instance. The United States, however, does not rely solely on the 1888 Act. It points to references to the bed of Utah Lake made by the Geological Survey in reserving Utah Lake, and contends that Congress ratified the Geological Survey’s reservation of the bed of Utah Lake in the 1890 Act. In the 1890 Act, Congress repealed the 1888 Act, but also specifically provided that “reservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by [the 1888] Act, until otherwise provided by law.” 26 Stat. 391. Thus, the United States argues, Congress ratified the reservation of the lakebed of Utah Lake. At first examination, statements made by the Geological Survey in reserving Utah Lake might seem to support this argument. The Tenth Annual Report of the Geological Survey (1890), which was transmitted to Congress, stated that an individual had been sent to examine Utah Lake “with reference to its capacity for a reservoir site,” in order that he might “furnish the specifications for its withdrawal as such under the law, so far as the lands covered or overflowed by it or the lands bordering upon it were still public lands.” App. 25. Furthermore, in the Eleventh Annual Report (1891), the Geological Survey reported" }, { "docid": "19333195", "title": "", "text": "was located inside the boundaries of the Crow Reservation established by treaty in 1868, but the treaty did not expressly refer to the riverbed. 450 U. S., at 548, 554. Applying the “strong presumption against conveyance by the United States” to defeat a State’s title, id., at 552, we concluded that the “mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance,” id., at 554. Even though creation of an Indian reservation could be an “appropriate public purpose” justifying a conveyance of submerged lands, a conveyance of submerged lands beneath the river would not have been necessary for the Government’s purpose, because fishing was not important to the Crow Tribe’s way of life. Id., at 556. In Utah Div. of State Lands, the Court found that the United States had not prevented the bed of Utah Lake from passing to Utah at statehood. The Sundry Appropriations Act of 1888, 25 Stat. 505, authorized the United States Geological Survey to select “sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows.” Id., at 526. The Survey selected Utah Lake as a reservoir site. 482 U. S., at 199. In 1890, when Congress repealed the 1888 Act, it provided “that reservoir sites heretofore located or selected shall remain segregated and re served from entry or settlement as provided by [the 1888 Act].” Sundry Appropriations Act of 1890, 26 Stat. 391. In concluding that the 1888 Act did not reflect a clear intent to include submerged lands within lands reserved for reservoir sites, the Court focused in part on the fact that the Act was motivated by concerns that settlers would claim lands suitable for reservoir sites or other reclamation efforts. 482 U. S., at 198, 203. These concerns of “monopolization and speculation” “had nothing to do with the beds of navigable rivers and" }, { "docid": "21914952", "title": "", "text": "State obtain title to the land underneath this reservoir upon entry into statehood. Such an intent would not be unusual. In Montana v. United States, 450 U. S. 544 (1981), we found that Congress intended to permit the State to take title to the béd of a navigable river even though the river was in the midst of an Indian Reservation, and in United States v. Holt State Bank, supra, we held that Congress intended the State to hold title to the bed of a navigable lake wholly within the boundaries of an Indian Reservation. Given the longstanding policy of holding land under navigable waters for the ultimate benefit of the States, therefore, we would not infer an intent to defeat a State’s equal footing entitlement from the mere act of reservation itself. Assuming, arguendo, that a reservation of land could be effective to overcome the strong presumption against the defeat of state title, the United States would not merely be required to establish that Congress clearly intended to include land under navigable waters within the federal reservation; the United States would additionally have to establish that Congress affirmatively intended to defeat the future State’s title to such land. I — < 1 — 1 1 — ( We conclude that the 1888 Act fails to make sufficiently plain either a congressional intent to include the bed of Utah Lake within the reservation or an intent to defeat Utah’s claim to title under the equal footing doctrine. The 1888 Act provided that the reserved lands were “reserved from sale as the property of the United States, and shall not be subject . . . to entry, settlement or occupation until further provided by law.” 25 Stat. 527. The words of the 1888 Act did not necessarily refer to lands under navigable waters because lands under navigable lakes and rivers such as the bed of Utah Lake were already the property of the United States, and were already exempt from sale, entry, settlement, or occupation under the general land laws. As this Court recognized in Shively v. Bowlby, supra, at 48," }, { "docid": "21914948", "title": "", "text": "of Utah Lake. The United States, in turn, answered that title to the lakebed remained in federal ownership by operation of Major Powell’s selection of the lake as a reservoir site in 1889. The District Court granted summary judgment for the United States, holding that the United States held title to the bed of Utah Lake. 624 F. Supp. 622 (1983). The District Court found that the withdrawal of the bed of Utah Lake in 1889 pursuant to the 1888 Act defeated Utah’s claim to title under the equal footing doctrine. The Court of Appeals for the Tenth Circuit affirmed. 780 F. 2d 1615 (1985). We granted certiorari, 479 U. S. 881 (1986), and now reverse. II The State of Utah contends that only a conveyance to a third party, and not merely a federal reservation of land, can defeat a State’s title to land under navigable waters upon entry into the Union. Although this Court has always spoken in terms of a “conveyance” by the United States before statehood, we have never decided whether Congress may defeat a State’s claim to title by a federal reservation or withdrawal of land under navigable waters. In Shively, this Court concluded that the only constitutional limitation on the right to grant sovereign land is that such a grant must be for a “public purpos[e] appropriate to the objects for which the United States hold[s] the Territory.” 152 U. S., at 48. In the Court’s view, the power to make such a grant arose out of the Federal Government’s power over Territories under the Property Clause of the United States Constitution, which provides: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States_” U. S. Const., Art. IV, §3, cl. 2. The Property Clause grants Congress plenary power to regulate and dispose of land within the Territories, and assuredly Congress also has the power to acquire land in aid of other powers conferred on it by the Constitution. Under Utah’s view, however, while the United States could" }, { "docid": "21914943", "title": "", "text": "unless the intention was definitely declared or otherwise made very plain.” United States v. Holt State Bank, 270 U. S. 49, 55 (1926). We have stated that “[a] court deciding a question of title to the bed of a navigable water must. . . begin with a strong presumption against conveyance by the United States, and must not infer such a conveyance unless the intention was definitely declared or otherwise made very plain, or was rendered in clear and especial words, or unless the claim confirmed in terms embraces the land under the waters of the stream.” Montana v. United States, 450 U. S. 544, 552 (1981) (internal quotations omitted; citations omitted). Indeed, in only a single case—Choctaw Nation v. Oklahoma, 397 U. S. 620 (1970) — have we concluded that Congress intended to grant sovereign lands to a private party. The holding in Choctaw Nation, moreover, rested on the unusual history behind the Indian treaties at issue in that case, and indispensable to the holding was a promise to the Indian Tribe that no part of the reservation would become part of a State. Montana v. United States, supra, at 555, n. 5. Choctaw Nation was thus literally a “singular exception,” in which the result depended “on very peculiar circumstances.” 450 U. S., at 555, n. 5. B Utah Lake is a navigable body of freshwater covering 150 square miles. It is drained by the Jordan River, which flows northward and empties into the Great Salt Lake. Several years before the entry of Utah into the Union, “[t]he opening of the arid lands to homesteading raised the specter that settlers might claim lands more suitable for reservoir sites or other irrigation works, impeding future reclamation efforts.” California v. United States, 438 U. S. 645, 659 (1978). In response, Congress passed the Sundry Appropriations Act of 1888, 25 Stat. 505 (1888 Act), which authorized the United States Geological Survey to select “sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows.” Id., at 526. The Act" }, { "docid": "21914969", "title": "", "text": "Report of USGS to Secretary of the Interior 1888-1889, Part II — Irrigation, for the fiscal year ending June 30, 1889, Major Powell stated: “In April, Mr. Newell was sent to Utah to make certain examinations of Utah Lake with reference to its capacity for a reser voir site and to furnish the specifications for its withdrawal as such under the law, so far as the lands covered or overflowed by it or the lands bordering upon it were still public lands.” Id., at 88; App. 25 (emphasis added). It is difficult to imagine a clearer statement to Congress of the reservation of the bed of Utah Lake. Major Powell, the director of the agency charged with implementing the 1888 Act, unquestionably understood the Act to authorize the reservation of lands underlying navigable waters. His contemporaneous construction of the Act is entitled to considerable deference. Udall v. Tollman, 380 U. S. 1, 16 (1965). The argument advanced by the majority in support of its position that the 1888 Act does not authorize the reservation of a lakebed, ante, at 203-204, is singularly unpersuasive as a basis for rejecting the USGS’s interpretation. Moreover, Congress clearly ratified the reservation of Utah Lake, including its bed, in the 1890 Act. Any concerns about the scope of the 1888 Act are put to rest by this ratification. Although the 1890 Act repealed the withdrawal provision of the 1888 Act, see ante, at 199, Congress provided “that reservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by [the 1888]-act, until otherwise provided by law, and reservoir sites hereafter located or selected on public lands shall in like manner be reserved from the date of the location or selection thereof.” 26 Stat. 391. The “broad sweep of the 1888 Act,” ante, at 208, is therefore irrelevant since that Act was repealed before Utah was admitted to the Union. The pertinent statute, the 1890 Act, is more limited in scope, reserving to the United States only reservoir sites actually selected by the USGS. Subsequent to the enactment of the" }, { "docid": "19333207", "title": "", "text": "submerged lands, and Alaska therefore challenges the Master’s conclusion that the Pickett Act gave the President the express authority to dispose of them. Its argument rests mainly on the proposition that the Pickett Act’s reference to “withdrawal]” of “public lands” cannot include submerged lands, because such lands are not subject to sale, settlement, or entry under the general land laws and therefore need not be “withdrawn.” Cf. Utah Div. of State Lands, 482 U. S., at 208 (1888 Act stated that lands designated for reservoir sites were “‘reserved from sale as the property of the United States, and shall not be subject ... to entry, settlement or occupation’ rejecting claim that Act authorized inclusion of submerged lands in part because such lands were already exempt from sale, entry, or occupation); Mann v. Tacoma Land Co., 153 U. S. 273, 284 (1894) (“[T]he general legislation of Congress in respect to public lands does not extend to tide lands”); Shively, 152 U. S., at 48 (“Congress has never undertaken by general laws to dispose of” land under navigable waters). Assuming, arguendo, that Alaska’s construction of the Pickett Act is correct, it does not control the outcome of this case. We conclude that Congress ratified the terms of the 1923 Executive Order in § 11(b) of the Statehood Act. Despite Alaska’s protestations to the contrary, there would have been no barrier to Congress retaining a petroleum reserve, including submerged lands, at the point of Alaska’s statehood, provided it satisfied Utah Div. of State Lands’ requirements of demonstrating a clear intent to include submerged lands within the Reserve’s scope and a clear intent to defeat Alaska’s title. It follows that Congress could achieve the same result by explicitly recognizing, at the point of Alaska’s statehood, an Executive reservation that clearly included submerged lands. Cf. Utah Div. of State Lands, supra, at 205-207 (examining United States’ claim that references to the bed of Utah Lake made by the Geological Survey in reserving Utah Lake, taken together with 1890 Act providing that reservoir sites selected by the Geological Survey “shall remain segregated and reserved from entry" }, { "docid": "21914944", "title": "", "text": "part of the reservation would become part of a State. Montana v. United States, supra, at 555, n. 5. Choctaw Nation was thus literally a “singular exception,” in which the result depended “on very peculiar circumstances.” 450 U. S., at 555, n. 5. B Utah Lake is a navigable body of freshwater covering 150 square miles. It is drained by the Jordan River, which flows northward and empties into the Great Salt Lake. Several years before the entry of Utah into the Union, “[t]he opening of the arid lands to homesteading raised the specter that settlers might claim lands more suitable for reservoir sites or other irrigation works, impeding future reclamation efforts.” California v. United States, 438 U. S. 645, 659 (1978). In response, Congress passed the Sundry Appropriations Act of 1888, 25 Stat. 505 (1888 Act), which authorized the United States Geological Survey to select “sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows.” Id., at 526. The Act further provided that the United States would reserve the sites that might be so selected: “[A]ll the lands which may hereafter be designated or selected ... for sites for reservoirs, ditches or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement or occupation until further provided by law.” Id., at 527. On April .6, 1889, Major John Wesley Powell, the Director of the United States Geological Survey, submitted a report to the Secretary of the Interior stating that the “site of Utah Lake in Utah County in the Territory of Utah is hereby selected as a reservoir site, together with all lands situate within two statute miles of the border of said lake at high water.” App. 19. The Commissioner of the General Land Office subsequently informed the Land Office at Salt Lake City of the" }, { "docid": "21914950", "title": "", "text": "create a reservoir site by granting title to Utah Lake to a private entity, the United States could not accomplish the same purpose by a means that would keep Utah Lake under federal control. We need not decide that question today, however, because even if a reservation of the bed of Utah Lake could defeat Utah’s claim, it was not accomplished on these facts. Although arguably there is nothing in the Constitution to prevent the Federal Government from defeating a State’s title to land under navigable waters by its own reservation for a particular use, the strong presumption is against finding an intent to defeat the State’s title. In Shively and Holt State Bank this Court observed that Congress “early adopted and constantly has adhered” to a policy of holding land under navigable waters “for the ultimate benefit of future States.” United States v. Holt State Bank, 270 U. S., at 55; Shively v. Bowlby, 152 U. S., at 49-50. Congress, therefore, will defeat a future State’s entitlement to land under navigable waters only “in exceptional instances,” and in light of this policy, whether faced with a reservation or a conveyance, we simply cannot infer that Congress intended to defeat a future State’s title to land under navigable waters “unless the intention was definitely declared or otherwise made very plain.” United States v. Holt State Bank, supra, at 55. When Congress intends to convey land under navigable waters to a private party, of necessity it must also intend to defeat the future State’s claim to the land. When Congress reserves land for a particular purpose, however, it may not also intend to defeat a future State’s title to the land. The land remains in federal control, and therefore may still be held for the ultimate benefit of future States. Moreover, even if the land under navigable water passes to the State, the Federal Government may still control, develop, and use the waters for its own purposes. Arizona v. California, 373 U. S. 546, 597-598 (1963). Congress, for example, may intend to create a reservoir, but also intend to let the" }, { "docid": "21914961", "title": "", "text": "with the 1888 Act, the language of the 1890 Act is consistent with the view that only land available for entry and sale was reserved: “[Rjeservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by said act, until otherwise provided by law _” 26 Stat. 391. In sum, the 1890 Act can be understood as ratifying a reservation of the bed of Utah Lake only by ignoring the language of the 1890 Act and by taking the Geological Survey’s references to the bed of Utah Lake out of context. Under our precedents, however, we cannot so lightly infer the reservation of land under navigable waters. We conclude, therefore, that the 1890 Act no more “‘definitely declared or otherwise made very plain’” Congress’ intention to reserve Utah Lake than had the 1888 Act. Montana v. United States, 450 U. S., at 552 (quoting United States v. Holt State Bank, 270 U. S., at 55). > H — I Even if Congress did intend to reserve the bed of Utah Lake in either the 1888 Act or the 1890 Act, however, Congress did not clearly express an intention to defeat Utah’s claim to the lakebed under the equal footing doctrine upon entry into statehood. The United States points to no evidence of a congressional intent to defeat Utah’s entitlement to the bed of Utah Lake, and the structure and the history of the 1888 Act strongly suggest that Congress had no such intention. On its face, the 1888 Act does not purport to defeat the entitlement of future States to any land reserved. Instead, the Act merely provides that any reserved land is “reserved from sale” and “shall not be subject... to entry, settlement or occupation”; it makes no mention of the States’ entitlement to the beds of navigable rivers and lakes upon entry into statehood. The transfer of title of the bed of Utah Lake to Utah, moreover, would not necessarily prevent the Federal Government from subsequently developing a reservoir or water reclamation project at the lake in any event. See, e. g.," }, { "docid": "21914960", "title": "", "text": "a reservoir site he did not discuss the bed of Utah Lake. Instead, he observed that “further entries of the lands adjoining Utah Lake will have a tendency to defeat the purposes of [the 1888 Act] and obstruct the use of the lake as a natural reservoir,” App. 20, and that “speedy action” was necessary to avoid settlement. Ibid. Thus, Major Powell recommended that “the Register of the Land Office at Salt Lake City be instructed to refuse entries of public land within” two miles of the lake. Ibid. The local land office was so instructed by the Department of the Interior. Id., at 21. We further find no clear demonstration that Congress intended to ratify any reservation of the bed of Utah Lake in the 1890 Act. At best, the United States points to only scattered references to the bed of Utah Lake in the material submitted to Congress, and presents no unambiguous evidence that Members of Congress actually understood these references as pointing to a reservation of the bed of Utah Lake. As with the 1888 Act, the language of the 1890 Act is consistent with the view that only land available for entry and sale was reserved: “[Rjeservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by said act, until otherwise provided by law _” 26 Stat. 391. In sum, the 1890 Act can be understood as ratifying a reservation of the bed of Utah Lake only by ignoring the language of the 1890 Act and by taking the Geological Survey’s references to the bed of Utah Lake out of context. Under our precedents, however, we cannot so lightly infer the reservation of land under navigable waters. We conclude, therefore, that the 1890 Act no more “‘definitely declared or otherwise made very plain’” Congress’ intention to reserve Utah Lake than had the 1888 Act. Montana v. United States, 450 U. S., at 552 (quoting United States v. Holt State Bank, 270 U. S., at 55). > H — I Even if Congress did intend to reserve the bed of" }, { "docid": "21914947", "title": "", "text": "entry or settlement as provided by [the 1888 Act].” Id., at 391. Six years later, on January 4, 1896, Utah entered the Union. The Utah Enabling Act of July 16, 1894, provided that Utah was “to be admitted into the Union on an equal footing with the original States.” 28 Stat. 107. In 1976, the Bureau of Land Management of the United States Department of the Interior issued oil and gas leases for lands underlying Utah Lake. Viewing this as a violation of its ownership and property rights to the bed of Utah Lake, the State of Utah brought suit in the District Court for the District of Utah seeking a declaratory judgment that it, rather than the United States, had title to the lakebed. Utah also sought an injunction against interference with its alleged ownership and management rights. In its complaint, Utah claimed that on January 4,1896, by virtue of the State’s admission into the Union on an equal footing with all other States, the State of Utah became the owner of the bed of Utah Lake. The United States, in turn, answered that title to the lakebed remained in federal ownership by operation of Major Powell’s selection of the lake as a reservoir site in 1889. The District Court granted summary judgment for the United States, holding that the United States held title to the bed of Utah Lake. 624 F. Supp. 622 (1983). The District Court found that the withdrawal of the bed of Utah Lake in 1889 pursuant to the 1888 Act defeated Utah’s claim to title under the equal footing doctrine. The Court of Appeals for the Tenth Circuit affirmed. 780 F. 2d 1615 (1985). We granted certiorari, 479 U. S. 881 (1986), and now reverse. II The State of Utah contends that only a conveyance to a third party, and not merely a federal reservation of land, can defeat a State’s title to land under navigable waters upon entry into the Union. Although this Court has always spoken in terms of a “conveyance” by the United States before statehood, we have never decided whether" }, { "docid": "21914954", "title": "", "text": "“Congress has never undertaken by general laws to dispose of” land under navigable waters. See also Mann v. Tacoma Land Co., 153 U. S. 273, 284 (1894) (applying Shively v. Bowlby, supra, to hold that “the general legislation of Congress in respect to public lands does not extend to tide lands”); Illinois Central R. Co. v. Illinois, 146 U. S. 387, 437 (1892) (holding that “the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters . . . applies, which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea”). Therefore, little purpose would have been served by the reservation of the bed of Utah Lake. Moreover, the concerns with monopolization and speculation that motivated Congress to enact the 1888 Act, see P. Gates, History of Public Land Law Development 641 (1968), had nothing to do with the beds of navigable rivers and lakes. The intent to reach only land that would otherwise be available for sale and settlement is made manifest by the Act’s proviso: “Provided, That the President may at any time in his discretion by proclamation open any portion or all of the lands reserved by this provision to settlement under the homestead laws.” 25 Stat. 527. This proviso would permit the President to open any land reserved under the 1888 Act to settlement under the homesteading laws. We find it inconceivable that Congress intended by this simple proviso to abandon its long-held and unyielding policy of never permitting the sale or settlement of land under navigable waters under the general land laws. Shively v. Bowlby, 152 U. S., at 48. The proviso can be interpreted consistently with that policy only if lands under navigable waters were not subject to reservation under the 1888 Act in the first instance. The United States, however, does not rely solely on the 1888 Act. It points to references to the bed of Utah Lake made by the Geological Survey in reserving Utah Lake, and contends that Congress" }, { "docid": "21914963", "title": "", "text": "Arizona v. California, 283 U. S. 423, 451-452, 457 (1931) (holding that the United States has power to construct a dam and reservoir on a navigable river and reserving question of such power for purpose of irrigating public lands). Finally, the broad sweep of the 1888 Act cannot be reconciled with an intent to defeat the States’ title to the land under navigable waters. As noted above, the 1888 Act “had the practical effect of reserving all of the public lands in the West from settlement.” California v. United States, 438 U. S., at 659. In light of the congressional policy of defeating the future States’ title to the lands under navigable waters only “in exceptional instances” in case of “international duty or public exigency,” United States v. Holt State Bank, supra, at 55, we find it inconceivable that Congress intended to defeat the future States’ title to all such land in the western United States. Such an action would be wholly at odds with Congress’ policy of holding this land for the ultimate benefit of the future States. In sum, Congress did not definitely declare or otherwise make very plain either its intention to reserve the bed of Utah Lake or to defeat Utah’s title to the bed under the equal footing doctrine. Accordingly, we hold that the bed of Utah Lake passed to Utah upon that State’s entry into statehood on January 4,1896. The judgment of the Court of Appeals is Reversed. The dissent misconstrues our argument with regard to the segregation of Utah Lake between 1856 and 1878. Post, at 214, n. 5. Our point is not that the meander line was a “boundary” between the lands under the navigable waters and the adjacent lands granted by the Federal Government to private citizens, nor that this line settled the property rights of those who occupied exposed land within the meander line when Utah Lake receded. The resolution of these issues is complex, depending in large measure on the facts of the specific survey. See 4 Record, Doc. J, p. 27 (Department of Interior Memorandum discussing the effect" }, { "docid": "19333196", "title": "", "text": "Utah at statehood. The Sundry Appropriations Act of 1888, 25 Stat. 505, authorized the United States Geological Survey to select “sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows.” Id., at 526. The Survey selected Utah Lake as a reservoir site. 482 U. S., at 199. In 1890, when Congress repealed the 1888 Act, it provided “that reservoir sites heretofore located or selected shall remain segregated and re served from entry or settlement as provided by [the 1888 Act].” Sundry Appropriations Act of 1890, 26 Stat. 391. In concluding that the 1888 Act did not reflect a clear intent to include submerged lands within lands reserved for reservoir sites, the Court focused in part on the fact that the Act was motivated by concerns that settlers would claim lands suitable for reservoir sites or other reclamation efforts. 482 U. S., at 198, 203. These concerns of “monopolization and speculation” “had nothing to do with the beds of navigable rivers and lakes.” Id., at 203. Moreover, the Government’s ability to control and develop navigable waters would not be impaired if the land beneath the navigable waters passed to the State. Id., at 202; see also Arizona v. California, 373 U. S. 546, 597-598 (1963); Arizona v. California, 283 U. S. 423, 451-452, 457 (1931). We also considered whether certain references to the bed of Utah Lake in reports by the Geological Survey, coupled with the 1890 Act’s requirement that selected sites remain segregated, accomplished a reservation of the lake bed. We concluded that the references to the lake bed in the Survey documents, when placed in proper context, did not indicate that the bed was included within the reservation. Utah Div. of State Lands, supra, at 206. Finally, we held that even if the 1888 or 1890 Acts reflected a clear intent to include submerged lands within a reservation, there was no evidence that the United States intended to defeat future States’ entitlement to any land reserved. Again, our analysis focused on the fact that the" }, { "docid": "21914956", "title": "", "text": "ratified the Geological Survey’s reservation of the bed of Utah Lake in the 1890 Act. In the 1890 Act, Congress repealed the 1888 Act, but also specifically provided that “reservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by [the 1888] Act, until otherwise provided by law.” 26 Stat. 391. Thus, the United States argues, Congress ratified the reservation of the lakebed of Utah Lake. At first examination, statements made by the Geological Survey in reserving Utah Lake might seem to support this argument. The Tenth Annual Report of the Geological Survey (1890), which was transmitted to Congress, stated that an individual had been sent to examine Utah Lake “with reference to its capacity for a reservoir site,” in order that he might “furnish the specifications for its withdrawal as such under the law, so far as the lands covered or overflowed by it or the lands bordering upon it were still public lands.” App. 25. Furthermore, in the Eleventh Annual Report (1891), the Geological Survey reported that “the segregation” of Utah Lake “was made to include not only the bed but the lowlands up to mean high water.” App. 29. The Geological Survey’s references to the “segregation” of the bed of Utah Lake, however, must be placed in the proper context. A “segregation” of land simply means that the land is no longer subject to disposal under the public land laws. See E. Baynard, Public Land Law and Procedure §5.32, p. 174 (1986). The bed of Utah Lake had already been “segregated” by the United States Geological Survey even before the adoption of the 1888 Act. The United States had surveyed Utah Lake between 1856 and 1878, and had established the “meander line” — the mean high-water elevation— segregating the land covered by navigable waters from land available for public sale and settlement. 4 Record, Doc. F; U. S. Bureau of Land Management, Manual of Instructions for Survey of Public Lands of the United States § 3-115, p. 93 (1973) (“All navigable bodies of water and other important rivers and lakes" } ]

[ { "docid": "12858678", "title": "", "text": "been reversed, United States v. Crispino, 517 F.2d 1395 (2d Cir. 1975) (mem.); United States v. Dulski, supra, rev’d sub nom. Infelice v. United States, 528 F.2d 204 (7th Cir. 1975) as have all other cases holding authorization letters inadequate in light of § 515(a). United States v. Wrigley, 392 F.Supp. 14 (W.D.Mo.1975), rev’d 520 F.2d 362 (8th Cir. 1975), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304, 44 U.S.L.W. 3305 (1975); United States v. Agrusa, 392 F.Supp. 3 (W.D. Mo.1975), rev’d 520 F.2d 370 (8th Cir. 1975); United States v. Di Girlomo, 393 F.Supp. 997 (W.D.Mo.1975); rev’d 520 F.2d 372 (8th Cir. 1975). District courts in this circuit and elsewhere have likewise turned aside this claim. See, e. g., In re Patriarca, 396 F.Supp. 859, 865-68, 871 (D.R.I.1975); United States v. Kazonis, 391 F.Supp. 804 (D.Mass.1975); see also United States v. Weiner, 392 F.Supp. 81 (N.D.Ill.1975). Essentially § 515(a), promulgated by Congress in 1906 (34 Stat. 816), was designed to counter the decision in United States v. Rosenthal, 121 F. 862 (S.D.N.Y. 1903). The basic purpose of the statute was to regulate the grant of power and authority by the Justice Department to special attorneys, primarily private outside counsel, who were to operate within the districts of regular United States Attorneys. Although the present appeal involves the appointment of a Strike Force attorney who is an employee of the Justice Department nevertheless § 515(a) is clearly applicable. The most questionable aspect of the letter is its failure to say more about Mr. O’Sullivan’s cases than that they involve “violations of federal criminal statutes by persons whose identities are unknown . .” To hold this language in compliance with § 515(a) might seem to go beyond the literal statutory language and legislative history, a step “courts must [take] cautiously for fear of overreaching their traditional role, particularly where statutes may be dangerously expanded to encroach on individual liberties.” In re Persico, 522 F.2d 41, 65 (2d Cir. 1975). Even so, courts have held similarly worded letters of appointment, standing alone, to be sufficiently specific to comply with" } ]

[ { "docid": "17490248", "title": "", "text": "CLARK, Associate Justice. These two cases raise one common question: Whether an indictment must be invalidated when the letter of authority from the Attorney General directing the “special attorney” to investigate and prosecute the case is too broad under 28 U.S.C. § 515(a), resulting in the presence of an unauthorized person before the Grand Jury. In Dulski the District Court held the letter of authority insufficient and dismissed the indictment; while in Infelice the opposite conclusion was reached. We agree with the latter holding and, accordingly, affirm the decision in Infelice and reverse in Dulski. I. In Dulski the letter of appointment for Special Attorney Gregory H. Ward stated that he was being appoint ed “to prosecute unspecified persons for unspecified crimes in the Eastern District of Wisconsin and other districts.” As we have indicated, the District Court held the letter of authority insufficient because it failed to specify the particular statutes under which the proceedings were to be conducted and the reasons why they were of such importance that a specially qualified attorney was required. The district court held the letter was, therefore, too broad to meet the requirements of Section 515(a). The trial judge depended upon United States v. Crispino, 392 F.Supp. 764 (S.D.N.Y.1975); United States v. Wrigley, 392 F.Supp. 14 (W.D.Mo.1975); United States v. Agrusa, 392 F.Supp. 3 (W.D.Mo.1975), and United States v. Digirlomo, 393 F.Supp. 997 (W.D.Mo.1975). However each of these cases has been reversed. See Memorandum Order in United States v. Crispino, 517 F.2d 1395 (2d Cir. 1975), reversing on the basis of In re Persico, 522 F.2d 41 (2d Cir. 1975); United States v. Wrigley, 520 F.2d 362 (8th Cir. 1975); United States v. Agrusa, 520 F.2d 370 (8th Cir. 1975, and United States v. DiGirlomo, 520 F.2d 372 (8th Cir. 1975). We agree with the dispositions in the Second and Eighth Circuits. II. The Act of June 30, 1906, 34 Stat. 816, 28 U.S.C. § 515(a), was adopted by the Congress to meet the decision in United States v. Rosenthal, 121 F. 862 (S.D.N.Y.1903). The legislative history clearly indicates that the Act was" }, { "docid": "22266702", "title": "", "text": "and magistrates, Congress also wanted to protect the treasury from excessive expenses and unwarranted claims incident to the appointment of special counsel and to preserve the traditional role of district (now United States) attorneys as the primary representatives of the government before grand juries. Pérsico, 522 F.2d at 60. The restrictive features of the statute are directed to those ends; there is no evidence that Congress intended those features as safeguards for the benefit of those whose indictment might be sought. Consequently, § 515(a) has generally been constructed liberally in favor of the validity of indictments. Id. at 61. Letters appointing or commissioning special attorneys have been extensively attacked as overly broad, and in virtually every case the appointment has been upheld. In Infelice v. United States, 528 F.2d 204 (7th Cir.1975), we noted cases holding that the failure to specify the statute under which the special attorney was to act was not fatal, that the failure to specify the names of the persons to be investigated or prosecuted was of no consequence, and that no reason need be stated for the appointment. Id. at 206-07. See also Pérsi-co, 522 F.2d at 62-64. Balistrieri, of course, does not contend that Franke’s letter of appointment is over-broad but that it is totally absent. We must confront two questions that are apparently of first impression: (1) can a special attorney be validly appointed under § 515(a) without a letter of appointment or written commission, and if so, (2) can his authority be proved by a letter from the Assistant Attorney General for the Criminal Division certifying that he has been authorized from a certain date in the past? We do not know whether Franke’s letter of authorization was never issued or was issued and lost. If such a letter is essential to the authorization, it would make a difference. On that assumption, if the letter was never issued, there was never any authorization, but if it was issued and later lost, there was authorization that might be proved by other evidence. In the absence of evidence to the contrary, we shall assume" }, { "docid": "18074058", "title": "", "text": "not he is a resident of the district in which the proceeding is brought. The Department of Justice hired Steinberg as an attorney on June 12, 1972 and the Assistant Attorney General for the Crimi nal Division, Henry Petersen, appointed him to the Miami Strike Force on November 30, 1972 with the following directive: to assist in the trial of [violation of federal criminal statutes by persons whose identities are unknown] in the Southern District of Florida and other judicial districts in the United States in which the Government is interested. In that connection you are specially authorized and directed ... to conduct . any kind of legal proceedings . including grand jury proceedings which United States attorneys are authorized to conduct. Appellants contend that Steinberg’s commission did not “specifically direct” him to appear before the grand jury pursuant to 28 U.S.C. § 515(a). This argument has been rejected in all circuits that have considered it. See United States v. Prueitt, 540 F.2d 995 (9th Cir. 1976); Infelice v. United States, 528 F.2d 204 (7th Cir. 1975); In Re Grand Jury Subpoena of Persico, 522 F.2d 41 (2nd Cir. 1975); United States v. Wrigley, 520 F.2d 362 (8th Cir. 1975), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304. In United States v. Wrigley, 520 F.2d 362 (9th Cir. 1975), the Ninth Circuit, rejecting the defendant’s argument that a letter of appointment identical to the letter being attacked in this case was too broad and failed to give specific direction in the grant of authority, held that the statute does not limit the employment of special attorneys to particular types of cases identified as unusually important or requiring particular expertise; the statute is a grant of authority, not a limitation. Id. at 364-68. We .concur and hold that the letter of appointment for special attorney Steinberg complied with § 515(a). Finally, appellant Leppo argues that the trial judge should have granted a mistrial when a Government witness commented on his silence at the time of his arrest after he had been given his Miranda warnings. At trial, to" }, { "docid": "18074059", "title": "", "text": "Cir. 1975); In Re Grand Jury Subpoena of Persico, 522 F.2d 41 (2nd Cir. 1975); United States v. Wrigley, 520 F.2d 362 (8th Cir. 1975), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304. In United States v. Wrigley, 520 F.2d 362 (9th Cir. 1975), the Ninth Circuit, rejecting the defendant’s argument that a letter of appointment identical to the letter being attacked in this case was too broad and failed to give specific direction in the grant of authority, held that the statute does not limit the employment of special attorneys to particular types of cases identified as unusually important or requiring particular expertise; the statute is a grant of authority, not a limitation. Id. at 364-68. We .concur and hold that the letter of appointment for special attorney Steinberg complied with § 515(a). Finally, appellant Leppo argues that the trial judge should have granted a mistrial when a Government witness commented on his silence at the time of his arrest after he had been given his Miranda warnings. At trial, to lay the foundation for evidence seized from Leppo, agent Jansen, who executed the search warrant, testified: I executed a search warrant to his person, and he was advised of his rights according to the Advice of Rights form. Defense counsel for Sklaroff, Mr. Hogan, objected: Your Honor, I object. Whether he was advised of his rights is immaterial. It violates his rights under the Fifth Amendment of the United States in implying that he had a duty to speak. The Government has not provided us with statements of any witnesses and therefore I would object to this line of questioning. The judge overruled his objection and at that moment the witness, spontaneously replying to defense counsel’s remarks, stated, “Mr. Leppo declined to make any statement.” Defense counsel immediately objected to the witness’ remark and the trial judge sustained their objections, instructing the jury that a defendant has an absolute right not to say anything during his arrest or trial. After he denied counsel’s motion for a mistrial, the judge again instructed the jury to disregard" }, { "docid": "22266701", "title": "", "text": "is not adequate proof of authorization. Section 515(a) was enacted in 1906 in order to overrule legislatively United States v. Rosenthal, 121 F. 862 (C.C.S.D.N. Y.1903), which held that only the United States Attorney for the district or one of his assistants could present a matter to the grand jury. United States v. Morris, 532 F.2d 436 (5th Cir.1976); In re Pérsico, 522 F.2d 41 (2d Cir.1975). According to the report of the Judiciary Committee in favor of passage, [t]he purpose of this bill is to give to the Attorney General, or to any officer in his Department, or to any attorney specially employed by him, the same rights, powers and authority which district attorneys [United States Attorneys] now have or may hereafter have in presenting and conducting proceedings before a grand jury or committing magistrate. H.R.Rep. No. 2901, 59th Cong., 1st Sess. 1-2 (1906), as quoted in Morris, 532 F.2d at 440. While the principal purpose of the statute was to empower the Attorney General and his special employees to appear before grand juries and magistrates, Congress also wanted to protect the treasury from excessive expenses and unwarranted claims incident to the appointment of special counsel and to preserve the traditional role of district (now United States) attorneys as the primary representatives of the government before grand juries. Pérsico, 522 F.2d at 60. The restrictive features of the statute are directed to those ends; there is no evidence that Congress intended those features as safeguards for the benefit of those whose indictment might be sought. Consequently, § 515(a) has generally been constructed liberally in favor of the validity of indictments. Id. at 61. Letters appointing or commissioning special attorneys have been extensively attacked as overly broad, and in virtually every case the appointment has been upheld. In Infelice v. United States, 528 F.2d 204 (7th Cir.1975), we noted cases holding that the failure to specify the statute under which the special attorney was to act was not fatal, that the failure to specify the names of the persons to be investigated or prosecuted was of no consequence, and that" }, { "docid": "11313746", "title": "", "text": "issue the authorization letter to Mr. Brannigan. The validity of the authorization letter here at issue is not a novel question in the federal courts. As stated above, in order for Brannigan to have been an attorney authorized to appear before a grand jury, the government must have satisfied two requirements: (1) Brannigan must have been specially appointed by the Attorney General or the Deputy Attorney General, and (2) he must have been specifically directed by the [Deputy] Attorney General to conduct grand jury proceedings. In confronting this very question, the Second Circuit noted that “[a]lmost every case which has interpreted 28 U.S.C. Sec. 515(a) favors the government.” In Re Subpoena of Persico, supra, 522 F.2d at 61. When determining whether such broad authorization letters as here in question satisfy the above two requirements, the courts have had little difficulty in holding that the first requirement is satisfied. See, e. g., United States v. Weiner, 392 F.Supp. 81, 86 (N.D.Ill.1975); United States v. Brown, 389 F.Supp. 959, 960 (S.D.N.Y.1975). In fact, some courts have assumed, without discussion, that the “specially appointed” requirement has been satisfied by the authorization letter. See, e. g., United States v. Di Girlomo, 393 F.Supp. 997, 1004-05 (W.D.Mo.1975); United States v. Brodson, 390 F.Supp. 774, 783 (E.D.Wis.1975). Here, the letter provided that Brannigan was “specially retained and appointed as a Special Attorney under the authority of the Department of Justice . . .” We be lieve that this language satisfies the “any attorney specially appointed by the Attorney General under law” requirement law” requirement of Section 515(a). The more serious and complex question is whether Brannigan, within the meaning of Section 515(a), was “specifically directed by the Attorney General” to present this case to the grand jury. The majority of courts, which have considered whether broad authorization letters such as here satisfy the “specifically directed” requirement, have held that such letters comply with the statute. There is, however, a minority view, holding that such broad letters do not fulfill the requirements of the statute. This minority view is represented by a district court’s ruling in United" }, { "docid": "8959040", "title": "", "text": "of authority to the special attorney was too narrow to encompass the activity challenged and that the special attorney had exceeded the scope of the Attorney General’s direction. See Shushan v. United States, 117 F.2d 110 (5th Cir.), cert. denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531 (1941) (indictment of persons not named in letter of appointment); United States v. Amazon Industrial Chemical Corp., 55 F.2d 254 (D.Md.1931) (same); United States v. Huston, supra (not authorized by letter of appointment to proceed in district); United States v. Morse, 292 F. 273 (S.D.N.Y.1922) (indictment of persons not named in letter of appointment). . The United States Attorneys are empowered to prosecute all offenses against the United States in their districts. 28 U.S.C. § 547. They, like the Attorney General, are appointed by the President with the advice and consent of the Senate. 28 U.S.C. §§ 503, 541. . The District Court said: The government does not state who, how, or under what guidelines or power the determination that “the subjects under investigation are affiliated with syndicated criminal operations” is made in order that the supervision of particular cases becomes subject to assignment to the Organized Crime and Racketeering Section of the Criminal Division of the Department of Justice. * * * The Attorney General could easily comply with the mandate of Section 515(a) by use of appropriate letters of appointment which would * * * “specifically direct” a particular Special Attorney to conduct all proceedings, including grand jury proceedings, in connection with the particular individuals who have already been identified by someone in the Department of Justice in Washington. * * * (Footnote omitted.) . This limited view of the Attorney General’s powers was quickly rejected in United States v. Cobban, 127 F. 713 (D.Mont.1904) and United States v. Twining, 132 F. 129 (D.N.J.1904). The Second Circuit states that the Rosenthal court was also concerned with the apparent impropriety of a private group using the grand jury for its own purposes. In re Grand Jury Subpoena of Alphonse Persico, 522 F.2d 41 (2nd Cir. 1975). . Accord, May v." }, { "docid": "17490249", "title": "", "text": "required. The district court held the letter was, therefore, too broad to meet the requirements of Section 515(a). The trial judge depended upon United States v. Crispino, 392 F.Supp. 764 (S.D.N.Y.1975); United States v. Wrigley, 392 F.Supp. 14 (W.D.Mo.1975); United States v. Agrusa, 392 F.Supp. 3 (W.D.Mo.1975), and United States v. Digirlomo, 393 F.Supp. 997 (W.D.Mo.1975). However each of these cases has been reversed. See Memorandum Order in United States v. Crispino, 517 F.2d 1395 (2d Cir. 1975), reversing on the basis of In re Persico, 522 F.2d 41 (2d Cir. 1975); United States v. Wrigley, 520 F.2d 362 (8th Cir. 1975); United States v. Agrusa, 520 F.2d 370 (8th Cir. 1975, and United States v. DiGirlomo, 520 F.2d 372 (8th Cir. 1975). We agree with the dispositions in the Second and Eighth Circuits. II. The Act of June 30, 1906, 34 Stat. 816, 28 U.S.C. § 515(a), was adopted by the Congress to meet the decision in United States v. Rosenthal, 121 F. 862 (S.D.N.Y.1903). The legislative history clearly indicates that the Act was concerned primarily with outside counsel specially retained by the Department. Its stated purpose was to grant to the “special attorneys” the same rights, powers and authority which the United States Attorneys possessed. United States v. Morton Salt Company, 216 F.Supp. 250 (D.Minn.1962), aff’d 382 U.S. 44 (1965). The Act has been construed broadly in a series of cases: In United States v. Amazon Industrial Chemical Corp., 55 F.2d 254, 256-257 (D.Md.1931), the failure to specify the statute under which the special attorney was to act was held not to be fatal; in United States v. Hall, 145 F.2d 781 (9th Cir. 1944), cert. denied 324 U.S. 871, 65 S.Ct. 1016, 89 L.Ed. 1425 (1945), the failure to specify the names of the persons to be investigated and prosecuted was held to be of no consequence; and in Shushan v. United States, 117 F.2d 110 (5th Cir. 1941), cert. denied 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531 (1941), extended this failure to include the specification of both persons and cases. More recent cases have" }, { "docid": "11313745", "title": "", "text": "is without authority to delegate his power to assign government attorneys. Even if it were raised, however, such a contention would be without merit. Section 515(a) imposes no limitation on the Attorney General’s authority to delegate his power of appointment to other officers within the Department of Justice. See United States v. Crispino, 392 F.Supp. 764, 766-67 (S.D.N.Y. 1975). But note Reversed by an unpublished opinion 517 F.2d 1395 (2d Cir., 1975). Furthermore, Section 510 of Title 28 permits the Attorney General to delegate any of his functions to “any other officer” of the Department of Justice. See In Re Subpoena of Pérsico, 522 F.2d 41, 66-67 (2d Cir. 1975). By regulation, 28 C.F.R. 0.15(b)(3), the Deputy Attorney General shall “[e]xercise the power and authority vested in the Attorney General to take final action in matters pertaining to . : (ii) the appointment of . other attorneys to assist U.S. Attorneys when the public interest so requires . .” We, therefore, conclude that Deputy Attorney General Kleindienst had the authority, under 28 U.S.C. 515(a), to issue the authorization letter to Mr. Brannigan. The validity of the authorization letter here at issue is not a novel question in the federal courts. As stated above, in order for Brannigan to have been an attorney authorized to appear before a grand jury, the government must have satisfied two requirements: (1) Brannigan must have been specially appointed by the Attorney General or the Deputy Attorney General, and (2) he must have been specifically directed by the [Deputy] Attorney General to conduct grand jury proceedings. In confronting this very question, the Second Circuit noted that “[a]lmost every case which has interpreted 28 U.S.C. Sec. 515(a) favors the government.” In Re Subpoena of Persico, supra, 522 F.2d at 61. When determining whether such broad authorization letters as here in question satisfy the above two requirements, the courts have had little difficulty in holding that the first requirement is satisfied. See, e. g., United States v. Weiner, 392 F.Supp. 81, 86 (N.D.Ill.1975); United States v. Brown, 389 F.Supp. 959, 960 (S.D.N.Y.1975). In fact, some courts have assumed," }, { "docid": "12858689", "title": "", "text": "Your appointment is extended to include, in addition to the aforesaid cases, the prosecution of any other such special cases arising in the aforesaid district and other judicial districts of the United States. You are to serve without compensation other than the compensation you are now receiving under existing appointment. Please execute the required oath of office and forward a duplicate thereof to the Criminal Division. Sincerely, HENRY E. PETERSEN Assistant Attorney General” . Section 515(a) provides: “The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.” . The issue has received its most extensive consideration in an opinion by the Second Circuit which undertook a detailed analysis of the legislative history of § 515(a), In re Persico, 522 F.2d 41, 57-61 (2d Cir. 1975), and of the role of Organized Crime Strike Forces within the Department of Justice. Id. at 50-56. . The recent per curiam affirmance in United States v. Zuber et al., 528 F.2d 981 (9th Cir. 1976) in which the court, likewise in reliance on the Second Circuit’s reasoning in In re Persico, supra, upheld a “strike force” attorney’s authorization under § 515(a), further supports our conclusion. It should also be noted that although the letter of appointment was from Assistant Attorney General Petersen and not the Attorney General himself, the issue of improper delegation of authority is not involved here as it was in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Title 28 U.S.C. § 515(a) does not contain any express or implied statutory prohibition which would preclude the Attorney General from delegating his power to appoint special attorneys. See 28 U.S.C. § 510. . Chapter 271, § 17 provides in pertinent part:" }, { "docid": "7430909", "title": "", "text": "Assistant Attorney General John C. Keeney. The respondent contends that the letters of appointment to the special attorneys fail to comply with 28 U.S.C. § 515(a) for three reasons. First, the letters are too broad because they do not “specifically direct” the special attorneys within the meaning of the statute. Second, the Attorney General cannot under the statute delegate his powers to a subordinate officer of the Department of Justice. Third, there is no proof that the letters of appointment were actually signed by the purported signators and they should not have been admitted into evidence. The respondent’s first two arguments have been decided adversely to him in United States of America v. William Wrigley, 520 F.2d 362 (8th Cir. 1975) and United States of America v. Salvatore Ross Agrusa, 520 F.2d 370 (8th Cir. 1975). Accord, In re Grand Jury Subpoena of Alphonse Persico, 522 F.2d 41 (2nd Cir. 1975). In Wrigley, we held that letters of appointment which specifically direct the special attorneys to conduct grand jury proceedings in the Western District of Missouri satisfy 28 U.S.C. § 515(a). In Agrusa, we held that the Attorney General could, pursuant to 28 U.S.C. § 510, delegate his authority under 28 U.S.C. § 515(a) to subordinate officers of the Department of Justice. The legal and factual contentions raised here are the same as those previously presented. There is no reason to depart from those holdings here. The final argument of the respondent is equally unavailing. The letters of appointment received into evidence were copies authenticated by the certificate of the clerk of court and properly admitted. See United States v. Morris, 451 F.2d 969, 972 (8th Cir. 1971); United States v. Hudson, 479 F.2d 251, 253 (9th Cir. 1972), cert. denied, 414 U.S. 1012, 94 S.Ct. 377, 38 L.Ed.2d 250 (1973); 28 U.S.C. § 1733; Federal Rules of Evidence 902, see Pub.L.No. 93-595 (January 2, 1975) (effective July 1, 1975); McCormick on Evidence (2nd Ed. 1972) at 557. Affirmed. . The statute reads: Whenever a witness in any proceeding before or ancillary to any court or grand jury of the" }, { "docid": "23658963", "title": "", "text": "We reject appellant’s claim that the language of the statute fails to advise persons of what acts the statute forbids. The language of the statute clearly and adequately expresses its purposes. United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965). Accordingly, the statute as applied here is not constitutionally vague. PROSECUTORS’ AUTHORITY TO SEEK INDICTMENT Appellant claims the District Court erred by failing to dismiss the indictment on the basis of the government’s alleged violation of Rule 6(d) of the Federal Rules of Criminal Procedure. He argues that the prosecutors who presented his case to the grand jury which returned the indictment were not “attorneys for the government” within the meaning of that rule and that the indictment returned was therefore invalid. The principal basis for appellant’s argument is that 28 U.S.C. § 515 should be strictly construed against enlarging the number of persons with access to grand juries on behalf of the government and that the authorizations of the special prosecutors in this case were insufficient under the rationale of United States v. Crispino, 392 F.Supp. 764 (S.D.N.Y.1975). That case has been reversed without opinion by the Second Circuit. 517 F.2d 1395 (1975). Appellant’s arguments must be rejected in light of In re Subpoena of Persico, 522 F.2d 41 (2d Cir. 1975), and United States v. Wrigley, 520 F.2d 362 (8th Cir. 1975). The motion to dismiss the indictment was properly, denied. JURY EXPOSURE TO PUBLICITY DURING TRIAL In a consolidated appeal, appellant challenges the trial judge’s denial of a motion for a new trial based on the alleged circulation and discussion in the jury room of prejudicial newspaper articles. Whether a new trial should be granted on this basis is a matter within the discretion of the trial judge and must turn on all the facts and circumstances of each ease. Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). The question here is whether the information which allegedly reached the jury was so prejudicial that appellant was denied a fair trial. See American Bar Association, Standards Relating*to Fair Trial" }, { "docid": "23574798", "title": "", "text": "too slender a reed on which to rest a disqualification order except in the rarest cases”). . App. 323a-324a. . United States v. Bruzgo, supra, 373 F.2d at 386. . 445 F.Supp. at 960, 964. . Id. at 964. . It bears repeating that this decision should not be construed as a license to prosecutors to take the witness stand in grand jury proceedings.- In future cases, this court may dismiss indictments on a showing that actual prejudice has resulted from such undesirable prosecutorial conduct, or on a showing that it is impossible to ascertain the degree of prejudice without examination of much more of the grand jury proceedings than was necessary here. Furthermore, if the practice persists, a prophylactic rule of dismissal, regardless of prejudice, may become necessary. . 28 U.S.C. § 515(a) (1977) provides: “The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifícally directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.” (Emphasis added.) Section 534 provides, in pertinent part: “(a) The Attorney General shall— (1) acquire, collect, classify, and preserve identification, criminal identification, crime, and other records; and (2) exchange these records with, and for the official use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions. “(c) The Attorney General may appoint officials to perform the functions authorized by this section.” Defendants do not challenge the authority of the Attorney General to appoint the SEC attorney as a Special United States Attorney to assist in grand jury proceedings in this case. That authority was extensively examined and upheld in In re Subpoena of Persico, 522 F.2d 41, 56-60 (2d Cir. 1975); United States v. Wrigley, 520 F.2d 362, 365-67 (8th Cir. 1975). . Section 1.2 of the ABA Standards provides: “Conflicts of interest." }, { "docid": "12858679", "title": "", "text": "(S.D.N.Y. 1903). The basic purpose of the statute was to regulate the grant of power and authority by the Justice Department to special attorneys, primarily private outside counsel, who were to operate within the districts of regular United States Attorneys. Although the present appeal involves the appointment of a Strike Force attorney who is an employee of the Justice Department nevertheless § 515(a) is clearly applicable. The most questionable aspect of the letter is its failure to say more about Mr. O’Sullivan’s cases than that they involve “violations of federal criminal statutes by persons whose identities are unknown . .” To hold this language in compliance with § 515(a) might seem to go beyond the literal statutory language and legislative history, a step “courts must [take] cautiously for fear of overreaching their traditional role, particularly where statutes may be dangerously expanded to encroach on individual liberties.” In re Persico, 522 F.2d 41, 65 (2d Cir. 1975). Even so, courts have held similarly worded letters of appointment, standing alone, to be sufficiently specific to comply with § 515(a), United States v. Wrigley, supra, 520 F.2d at 367; Infelice v. United States, supra at 206. We need not go so far here. We deal not with the appointment of private outside counsel, but with that of an attorney regularly employed on a full-time basis by the Department of Justice as part of its Strike Force program. In this circumstance, “specific direction” to such an attorney “need not be embodied in a single written authorization, but may be implied from other writings, guidelines, practices and oral directions transmitted through a chain of command within the Department.” In re Pérsico, supra at 66. The Strike Force program involves the coordination and cooperation of numerous law enforcement officials within particular judicial districts and within the Department of Justice itself. The details of this organizational structure and of its operation have been amply explicated elsewhere, see In re Persico, supra, and need not be outlined here. Congress itself has not been unaware of the role played by special Strike Force attorneys within the Department and Congress" }, { "docid": "8959041", "title": "", "text": "with syndicated criminal operations” is made in order that the supervision of particular cases becomes subject to assignment to the Organized Crime and Racketeering Section of the Criminal Division of the Department of Justice. * * * The Attorney General could easily comply with the mandate of Section 515(a) by use of appropriate letters of appointment which would * * * “specifically direct” a particular Special Attorney to conduct all proceedings, including grand jury proceedings, in connection with the particular individuals who have already been identified by someone in the Department of Justice in Washington. * * * (Footnote omitted.) . This limited view of the Attorney General’s powers was quickly rejected in United States v. Cobban, 127 F. 713 (D.Mont.1904) and United States v. Twining, 132 F. 129 (D.N.J.1904). The Second Circuit states that the Rosenthal court was also concerned with the apparent impropriety of a private group using the grand jury for its own purposes. In re Grand Jury Subpoena of Alphonse Persico, 522 F.2d 41 (2nd Cir. 1975). . Accord, May v. United States, 236 F. 495 (8th Cir. 1916): * * * This is not a proceeding to try the title of Mr. Childs to the office of special assistant to the Attorney General for the purposes mentioned in the appointment. It is a motion to quash an indictment for the reason that an unauthorized person took part in the proceedings of the grand jury which resulted in the indictment. Such a motion only attacks the authority of Mr. Childs in a collateral way, and beyond all question he was a de facto officer, acting by color of authority, and his acts are valid until it is judicially declared by a competent tribunal in a proceeding for that purpose that he has no right to the office, the duties of which he is performing. * * * Id. at 500. Compare Glidden Co. v. Zdanok, 370 U.S. 530, 535, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). . An attempt to amend the statute so as to eliminate the limitation “when specifically directed by the Attorney General”" }, { "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": "7430908", "title": "", "text": "Justice to assist in the trial of the aforesaid cases in the aforesaid district and other judicial districts of the United States in which the Government is interested. In that connection you are specially authorized and directed to file informations and to conduct in the aforesaid district and other judicial districts of the United States any kind of legal proceedings, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct. Your appointment is extended to include, in addition to the aforesaid cases, the prosecution of any other such special cases arising in the aforesaid district and other judicial districts of the United States. You are to serve without compensation other than the compensation you are now receiving under existing appointment. Please execute the required oath of office and forward a duplicate thereof to the Criminal Division. Sincerely, HENRY E. PETERSEN Assistant Attorney General The letters to Zleit and Tetrick were also signed by Assistant Attorney General Henry E. Petersen. Cornwell’s letter was signed by Acting Assistant Attorney General John C. Keeney. The respondent contends that the letters of appointment to the special attorneys fail to comply with 28 U.S.C. § 515(a) for three reasons. First, the letters are too broad because they do not “specifically direct” the special attorneys within the meaning of the statute. Second, the Attorney General cannot under the statute delegate his powers to a subordinate officer of the Department of Justice. Third, there is no proof that the letters of appointment were actually signed by the purported signators and they should not have been admitted into evidence. The respondent’s first two arguments have been decided adversely to him in United States of America v. William Wrigley, 520 F.2d 362 (8th Cir. 1975) and United States of America v. Salvatore Ross Agrusa, 520 F.2d 370 (8th Cir. 1975). Accord, In re Grand Jury Subpoena of Alphonse Persico, 522 F.2d 41 (2nd Cir. 1975). In Wrigley, we held that letters of appointment which specifically direct the special attorneys to conduct grand jury proceedings in the Western District of" }, { "docid": "8958963", "title": "", "text": "criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct. Your appointment is extended to include, in addition to the aforesaid cases, the prosecution of any other, such special cases arising in the aforesaid district and other judicial districts of the United States. You are to serve without compensation other than the compensation you are now receiving under existing appointment. Please execute the required oath of office and forward a duplicate thereof to the Criminal Division. Sincerely, HENRY E. PETERSEN Assistant Attorney General Zleit’s letter of appointment is identical. The letter of appointment to Cornwell is substantially the same and was signed by John C. Keeney, Acting Assistant Attorney General. Each attorney executed the oath of office before entering upon his duties in the Western District of Missouri. The District Court held that the letters of appointment did not comply with 28 U.S.C. § 515(a) because the special attorneys were not “specifically directed by the Attorney General.” In United States of America v. William Robert Wrigley, supra, we held that letters of appointment which specifically direct the special attorneys to conduct grand jury proceedings in the Western District of Missouri satisfy 28 U.S.C. § 515(a). Accord, In re Grand Jury Subpoena of Alphonse Persico, 522 F.2d 41 (2nd Cir. 1975). The legal and factual contentions raised here are identical to those presented in Wrigley. There is no reason to depart from that holding here. Because the District Court viewed the appointments as invalid under the statute, it did not reach the additional contention of the defendant that the Attorney General cannot delegate his authority under § 515(a) to subordinate officers. We now turn to that issue. Section 510 of Title 28, United States Code, provides: The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General. By regulation, the supervision of the Criminal Division of the Department of Justice has been delegated to the Assistant Attorney" }, { "docid": "8958964", "title": "", "text": "we held that letters of appointment which specifically direct the special attorneys to conduct grand jury proceedings in the Western District of Missouri satisfy 28 U.S.C. § 515(a). Accord, In re Grand Jury Subpoena of Alphonse Persico, 522 F.2d 41 (2nd Cir. 1975). The legal and factual contentions raised here are identical to those presented in Wrigley. There is no reason to depart from that holding here. Because the District Court viewed the appointments as invalid under the statute, it did not reach the additional contention of the defendant that the Attorney General cannot delegate his authority under § 515(a) to subordinate officers. We now turn to that issue. Section 510 of Title 28, United States Code, provides: The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General. By regulation, the supervision of the Criminal Division of the Department of Justice has been delegated to the Assistant Attorney in charge of that division. 28 C.F.R. § 0.55. This delegation includes the power to “ * * * designate attorneys to present evidence to grand juries * * *.” 28 C.F.R. § 0.60. Nothing in 28 U.S.C. § 515(a) or its legislative history evidences a congressional intent to limit the delegation authority of the Attorney General under 28 U.S.C. § 510. The delegation here to Assistant Attorney General Henry C. Petersen and Acting Assistant Attorney General John C. Keeney was in all respects proper. See 28 C.F.R. § 0.133; May v. United States, 236 F. 495, 500 (8th Cir. 1916); In re Grand Jury Subpoena of Alphonse Persico, supra 522 F.2d at 66-67; United States of America v. Philip Crispino, 392 F.Supp. 764 (S.D.N.Y.1975); compare United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). . The defendant was charged with knowingly buying, receiving, and having in his possession goods and chattels of a value in excess of $100.00 which were moving as, were a part of, and constituted an" }, { "docid": "14125521", "title": "", "text": "testimony that he had not, then the basic premise of appellant’s argument for entrapment as a matter of law would fail. It is at least likely that the jury did accept the testimony of DuBois on this issue rather than that of Ingénito, because the verdict probably reflects a rejection in other respects of Ingenito’s version of the events. Of course, we cannot be sure that the jury believed DuBois’s story that Ingénito obtained the guns from someone else. But we obviously also cannot be sure of the opposite, that is, that DuBois supplied the guns to appellant. That proposition is the factual basis of appellant’s argument that he was entrapped as a matter of law. Moreover, the validity of the legal rule for which appellant contends is, as shown above, in sharp dispute, and has not been adopted as yet in this circuit. Cf. United States v. Rosner, 485 F.2d 1213, 1221-23 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S. Ct. 3080, 41 L.Ed.2d 672 (1974); United States v. Archer, 486 F.2d 670, 674-77 (2d Cir. 1973). Under these circumstances, although we express no view on the merits of appellant’s basic legal contention, we do not see how we can find that the district judge committed plain error here. Lopez v. Unit ed States, 373 U.S. 427, 436, 83 S.Ct. 1381, 1386, 10 L.Ed.2d 462, 468 (1963). Accordingly, we reject his first argument for overturning his conviction. Ill Appellant also claims that his indictment was invalid because the special attorney of the Department of Justice Organized Crime Strike Force, who presented evidence to the grand jury, had not been properly authorized to do so under 28 U.S.C. § 515(a). We recently considered an attack on the authority of a Strike Force attorney in In re Persico, 522 F.2d 41 (1975). The claim there was that the language of the attorney’s authorizing commission was too broad to satisfy the requirement of section 515(a) that an attorney “specially appointed by the Attorney General” be “specifically directed” to conduct a legal proceeding. In an extremely thorough opinion by District Judge" } ]

[ { "docid": "22598173", "title": "", "text": "Commissioner and collector of Internal Revenue for the United States, and the amended exemption clause, ‘less average amount- of all deposits not exceeding $2000, made in the name of any one person,is construed as exempting ‘ all deposits made in the name of any one person not exceeding $2000 ’ of such deposit in his name. - “ This bank claims’that the tax be assessed according to this return.”' It was shown that the prescribed return and amended return were delivered to the Commissioner of Internal • Revenue on June 6,1878, and to the collector of internal revenue, the intestate of the defendant, on or before that date. On June 18, 1878, the Commissioner of Internal Revenue assessed the amount of tax on the face of said prescribed return at $1796.25, which amount the plaintiff paid to the collector on July 1, 1878, by a check which bore upon its face the words, “ Paid under protest to prevent distraint and penalty.” The bill of exceptions recites that the “ plaintiff also proved that as a matter of fact the true amount of the tax which should have been assessed against it was the sum of $428.75, as shown by said amended return.” Proof of similar-facts in respect to the tax due from the plaintiff for the six months ending November 30, 1878, was made, and that both the prescribed and amended returns for that tax were delivered to the Commissioner of Internal Revenue on December 9, 1878, and to the collector on or before that date. The plaintiff admitted that no other proceedings had been taken than those above detailed. The defendant, to sustain the issue on his part, “ proved,” so the bill of exceptions states, “ that for two years subsequent to the'payments of the amounts assessed against the plaintiff, respectively, no appeal had been taken from such payments or claim made for refund to the Commissioner of Internal Revenue.” lie also put in evidence the treasury regulations' prescribing the forms and procedure for the refunding of taxes in force from January 1, 1871, to December 31," } ]

[ { "docid": "22234079", "title": "", "text": "the Income Tax Law since we are clearly of the opinion that it is within the contemplation of paragraph L (38 Stat. 179), of the act which provides: “That all administrative, special, and general provisions of law, including the laws in relation to the assessment, remission, collection, and refund of internal-revenue taxes not heretofore specifically , repealed and not inconsistent with the provisions of this section, are hereby extended and made applicable to all the provisions of this section and to the tax herein imposed.” And for the same reason Ve do not further notice a contention as to the inapplicability of Rev: Stat., §§ 3220, 3226, 3227, to which effect was given by the court below requiring an appeal to the Commissioner of Internal Revenue after payment óf a tax claimed to have been erroneously or illegally assessed and collected and upon his refusal to return the sum paid giving a right to sue for its recovery.. The question for decision therefore is whether the sections of the Revised Statutes referred to are controlling as to the case in hand. The plain purpose and scope of the sections are thus stated in Snyder v. Marks, 109 U. S. 189, 193-194, a suit brought to enjoin the collection of a revenue tax on tobacco: “The inhibition of .Rev. Stat., § 3224, applies to all assessments of taxes, made under color of their offices, by internal revenue officers charged with general jurisdiction of the subject of assessing taxes against tobacco manufacturers. The remedy of a suit to recover back the' tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The remedy so given is exclusive, and no other remedy can be substituted for it. . . . Cheatham v. United States, 92 U. S. 85, 88, and again in State Railroad Tax Cases; 92 Ü. S. 575, 613,.it was said by this court, that the system prescribed by the United States in regard to both customs duties and internal revenue taxes, of stringent measures, not judicial, to collect them, with appeals to" }, { "docid": "15417574", "title": "", "text": "primarily upon § 3226, Rev. Stats., as the Court of Claims did. The case presents, therefore, at the outset the question whether the conditions of suit required by that section were satisfied, as qualified or relieved by the Acts of 1902 and 1912, hereafter referred to. Section 3226 provides that no suit shall be maintained for the recovery of a tax illegally or erroneously assessed or collected, “until appeal shall have been duly made to the Commissioner of Internal Revenue,', according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of the Commissioner has been had therein.” If, however, it is provided, decision be delayed more than six months from the date of the appeal, suit may be brought within another period prescribed, which it is not necessary to mention. The section is clear enough and unless modified’ or changed precludes the present suit as it was applicable to the tax involved (§ 31 of the Act of 1898). But § 3 of the Act of 1902 and § 2 of the Act of 1912, supra, are invoked as removing the bar of § 3226. Section 3 of the Act of 1902 directs the Secretary of the Treasury to refund upon proper application being made to the Commissioner of Internal Revenue any tax that may have been collected on contingent beneficial interests which shall not have become vested prior to July 1, 1902. Section 2 of the Act of July 27, 1912, has a like direction to the Secretary of the Treasury to pay “such claimants as have presented or shall hereafter so present their claims,' and shall establish such erroneous or illegal assessment and collection, any sums paid by them.” There is no question that the cited sections remove the bar of §§ 3226 and 3228 if appella it has met their requirements and presented to the Commissioner of Internal Revenue a claim for the refund of the tax. Nor is the fact that the tax was voluntarily paid, that is, Avithout protest, an" }, { "docid": "6369815", "title": "", "text": "TRIEBER, District Judge. The defendant in error, hereafter referred to as the plaintiff, instituted this action against the plaintiffs in error to recover alleged excess payments of income and profit taxes. There are three counts in the complaint, to recover for alleged excessive payments in three years. In each count it is alleged that during the years 1916, 1917, 1918, 1919, and until January 26, 1920, the defendant Coffey was collector of internal revenue for the district of North and South Dakota; that the alleged excess taxes paid, which it is sought to recover in the first and second counts, were paid to him while such collector; that from January 26, 1920, to May 15, 1920, the defendant Mee was such collector, and thereafter he was collector of internal revenue for the district of South Dakota only, the states of North and South Dakota having been made each a separate district. The alleged excessive income tax set out in the third count of the complaint, it is alleged, was paid to the defendant Mee as internal revenue collector for the district of South Dakota. Judgment was asked and was rendered against both defendants for the full amounts claimed in all three counts, with interest and costs. The complaint states fully the reasons plaintiff claims to be entitled to recover judgment, but does not allege that any of the payments were made involuntarily under duress, or under protest; but it is alleged that on November 16, 1921, it filed an amended return for each of the three years, claiming that it had erroneously failed to claim a deduction of certain payments made by it as state and county taxes, and asked for refunds of these amounts, 'amounting to $341.67. On April 1, 1922, the commissioner of internal revenue informed the plaintiff how the computations of its returns were made, and unless an appeal, is filed within 30 days from receipt of this letter the assessments would stand. The appeal was promptly made, and on July 19, 1922, it was rejected by the commissioner, whereupon this action was instituted on Eebruary 16," }, { "docid": "23491629", "title": "", "text": "maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or any sum alleged to have been excessive, until a claim for refund “has been duly filed with the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof. ’ ’ As above stated, attention of the Bureau of Internal Revenue was not called to this overpayment until the letter of September 11, 1924. Section 281 of the Revenue Act of 1924 (26 USCA § 1065) was then in force. It provides that a refund of an overpayment of any income tax imposed by the Revenue Acts o£ 1909, 1913, 1916, 1917, 1918, and 1921 shall not be allowed or made after four years from the time the tax was paid unless before the expiration of such four ye'ars a claim therefor is filed by the taxpayer. The tax in this case was paid by Ritter on June 7, 1918. There is no question but that the tax involved in this suit was an overpayment innocently made. In order to have it refunded, however, it was necessary that a claim be filed with the Commissioner of Internal Revenue within four years from the date of payment. It is unfortunate and to be regretted that the plaintiff finds himself in the position.in which his negligence, misunderstanding, or the unauthorized statement of the field agent, Timberlake, places him, but the sovereign government may not be sued, except upon its consent, and then only upon the conditions under which it has consented to be sued, even though they be purely formal. Cheatham v. United States, 92 U. S. 85, 23 L. Ed. 561; Rings County Savings Institution v. Blair, 116 U. S. 200, 6 S. Ct. 353, 29 L. Ed. 657; Rock Island, Arkansas & Louisiana Railroad Co. v. United States, 254 U. S. 141, 41 S. Ct. 55, 65 L. Ed. 188; Baltimore & Ohio R. R. Co. v. United States, 260 U. S." }, { "docid": "23669873", "title": "", "text": "court apparently so assumed by way of dictum in Winant v. Gardner, 29 F.(2d) 836, which involved a suit pending when section 1614 was enacted. Fox v. Edwards (C. C. A.) 287 F. 669, was also a pending suit. Compare Rasmussen v. Brownfield-Canty Carpet Co., 31 F.(2d) 89, 92 (C. C. A. 9), where the collector was held free from liability for a tax erroneously but voluntarily paid before the 1924 amendment went into effect, although the suit was commenced thereafter; and see Warner v. Walsh, 27 F.(2d) 952 (D. C. D. Conn.), questioning the constitutionality of the opposite construction. We shall assume arguendo that the fact that the tax was voluntarily paid in 1917 would be no tor to the present suit. There is, however, the prohibition of Rev. Stat. § 32.26, as amended (26 USCA § 156), against maintaining any suit for the recovery of an illegally collected tax “until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue.” The claim for refund filed by the plaintiffs in January, 192-2, asked for a refund of $28,872.18, stating the reasons therefor as follows: “A large part of this income was received in December, 1915, and should have been returned in that year, but was not, owing to the sickness of the claimant (now deceased) and the unfamiliarity of his bookkeeper with the ineome tax law and the transactions involved.” It then states the taxes actually paid for 1915 and 1916 and the correct taxes as shown by amended returns, and claims that the difference, namely, $28,872.18, “should be refunded.” The Commissioner granted the exact relief demanded by this claim; he refunded in cash $28,872.23, and gave credit on the additional assessment for 1915 of the balance of the overasscssment for 1916. It is true that opposite the amount specified as claimed the printed form contained the words: “Amount now asked to bo refunded (or such greater amount as is legally refundable).” But this does not negative our statement that the plaintiffs obtained the exact relief they demanded. They are now suing for" }, { "docid": "19345565", "title": "", "text": "insists that for the purpose of suit to recover any overpayment resulting from the failure of any estate to receive the benefit of a deduction for property previously taxed within five years where the second decedent died prior to the effective date of the estate tax provisions of the Revenue Act of 1918, the limitation period is six years from November 23, 1921, the date of enactment of section 403 of the Revenue Act of 1921, and that since this suit was not instituted within six years after that date it is barred. In other words, counsel for defendant contends that the provisions of section 3226, Revised Statutes, as amended by section 1014 (a) of the Revenue Act of 1924 allowing a suit to be brought for the recovery of a tax within two years after the disallowance by the Commissioner of a refund, do not apply to the retroactive provisions of section 403. This position seems to be based on the theory that courts audit returns, determine net estates, and make refunds; that a suit to recover an internal revenue tax is, in effect, an appeal from the Commissioner’s decision on a claim for refund and that since the obvious purpose and intent of section 403 of the Kevenue Act of 1921, which was continued in force in subsequent revenue acts, were to require a return of the excess tax paid by reason of the failure of an estate to receive the benefit of a deduction provided therein without regard to other provisions requiring the filing of a formal claim for refund within a specified time, the provisions of section 3226 of the Revised Statutes with reference to suit must likewise be discarded in such case. In this we think counsel is in error. The statute, while plainly inconsistent with section 3228, evidences no purpose on the part of Congress to disregard the provisions of section 3226, or any other provision of law, requiring the Commissioner, in the first instance, to audit returns, determine tax liability, and to make refunds of overpayments determined in accordance with the statutes. Statutory" }, { "docid": "11972392", "title": "", "text": "to the Revenue Act of 191.8, tho plaintiff in March, 1919, made a return for the first six months of 1918, on which return its tax for the six months was assessed as $302,438.83, in accordance with the provisions of section 226 of the 1918 act, 40 Stat. 1075. The Commissioner abated this tax to the amount of $75,461.39, and the appellant voluntarily paid to the defendant Mal-ley as collector in 1919 the balance of $226,-977.44. Later, in September, 1919, the appellant filed an amended return, showing income for the full fiscal year from June 30, 19l7, to June 30, 1918; and took, as the tax due for the six months from December 31 to July 1, 1918, the same proportionate part of the tax for the entire fiscal year, computed at the 1918 rates, as the portion of the fiscal year falling in 1918 was of the entire fiscal year in accordance with the provisions of section 205 of tho 1918 act, 40 Stat. 1061, which resulted, according to its return, in a tax of $234,088.50. In October, 1920, it filed a second amended return showing the tax for the six months from December 33, 1917, to July 1, 1938, to be only $127,651.08, and claimed that the tax assessed on its original return in March, 19.19, was excessive to the amount of $174,-787.75. No details of the original assessment, which was evidently computed in accordance with the provisions of section 226 of the 1918 act, are furnished. On April 9, 1923, the plaintiff, as a result of an examination of its books by an internal revenue agent, filed a claim for refund based on the internal revenue agent’s report of an alloged overpayment for 1918 of $156,390.-41. In this claim, however, the taxpayer recognized that there were deficiencies for the years 1915, 1916, and 1917, and assented t-o the application of the overpayment to deficiencies for those years, amount ing to $48,563.39, leaving a balance of $107,-826.61, which it claimed should be refunded. On May 7, 1923, the Commissioner, adopting the view that in. changing from a calendar" }, { "docid": "12753986", "title": "", "text": "1318 amended Rev.St. § 3226, by adding thereto: “No such suit or proceeding shall be begun before the expiration of six months from the date of filing such claim unless the Commissioner renders a decision thereon within that time, nor after the expiration of five years from the date of the payment of such tax * * * or sum.” Rev.St. § 3227 was at the same time repealed. § 1319. The legislative history discloses that the purpose of § 1318 was to provide a definite time “in all cases for instituting suits for the recovery of internal revenue taxes alleged to have been erroneously or illegally assessed or collected”. Seidman, supra, 889. Article 1050 of Regulations 62 promulgated under the 1921 act was to the same effect as § 1318, but included the statement: “Under section 3227, which applies to suits instituted prior to the passage of the Revenue Act of 1921, the cause of action accrued upon an unfavorable decision by the Commissioner, or, at the expiration of six months after an appeal without action thereon by the Commissioner.” This statement is subject to the same criticism previously pointed out with respect to Reg. 45, Art. 1037. Section 252 of the 1921 act required a claim for credit or refund of “an amount of income * * * tax * * * paid in excess of that properly due” to be filed within five years “from the date when the return was due”. By § 1316 of that act “claims for the refunding or crediting of any internal revenue tax alleged to have been erroneously or illegally assessed or collected” as well as other amounts illegally collected must be “presented” within four years after payment of the tax. It can be seen that these statutes are inconsistent, unless § 252 is construed to be applicable only to overpayments of “income, war-profits or excess-profits taxes”, and § 1316 is construed to include overpay-ments of all other taxes and for all amounts illegally collected. That such construction is correct is borne out by the fact that § 252 applied only" }, { "docid": "4172925", "title": "", "text": "the claims now advanced by it, taxes in larger amounts. than were paid for those years would have been due for 1909, 1910, 1911, 1914 and 1915, and net taxable incomes, rather than net losses, would have resulted for 1912,,. 1913 and probably for 1916. “Taxpayer timely filed its corporate returns for the calendar years 1917, 1918, 1919 ' and 1920, reporting tax liabilities of $324,- - .570.24, $291,053.13, $13,527.26 and $320,110.-37, respectively, which were paid and are not in dispute, except for $2,867.18 forming part of the liability shown on the 1920 return. “As the result of an audit by the Commissioner of Internal Revenue of taxpayer’s returns filed for 1917 to 1921, inclusive, the assessment of additional income, excess •and war profits taxes was proposed by letters dated in June 1923 and May 1925 for the calendar years 1917 to 1920, inclusive, in the aggregate sum of $789,022.28. In an endeavor to reduce the proposed deficiencies, taxpayer employed the American Appraisal Company which made an investigation and analysis of, and a report on, taxpayer’s books, records and affairs for the period commencing February 1, 1907 through 1920. Taxpayer also employed various qualified persons to represent it before the Treasury Department, including one Jackson who was the principal representative of the American Appraisal Company. The Appraisal Company’s report consisted of three volumes, Nos. 1, 2 and 3, dated November 22, 1923. Volumes 1 and 2 were supplemented by a report dated July 29, 1926, and were submitted by taxpayer to the Commissioner. Volumes 1 and 2, and the supplemental report, covered the period from taxpayer’s incorporation in 1907 through 1916 but contained no reference to or suggestion of the existence of Volume 3 for the .immediately succeeding period, 1917-1920, involved in this suit. The Bureau of Internal Revenue had no knowledge of the existence of Volume 3, or its contents, at any time prior to the institution of this suit. As the result of conferences, and representations made by and on behalf of taxpayer, the Commissioner and his subordinates were induced to and did rely thereon, and accept, follow" }, { "docid": "15417573", "title": "", "text": "the New England Trust Company, trustee under the will of Dwight. And on December 30, 1913, attorneys Lyon & Lyon, of Washington, D. C;, acting for and in behalf of the administrator de bonis non of Edmund Dwight, filed with the Commissioner of Internal Revenue a claim for the .refund of the tax. The grounds of both claims were that the tax was illegally and erroneously assessed and collected and contrary to the provisions of the Act of 1898 and amendments and that the same should be refunded by virtue of the Act of June 27, 1902, c. 1160, 32 Stat. 406, and the Act of July 27, 1912. The claims were rejected by the acting commissioner March 28, 1914. It is not shown that Mrs. Rand or any person ácting for her or in her behalf filed a claim with the Commissioner. The court, as we have said, dismissed the claim without considering the validity of the assessment. The conclusion is contested by appellant in an elaborate brief and defended by thé Government, relying primarily upon § 3226, Rev. Stats., as the Court of Claims did. The case presents, therefore, at the outset the question whether the conditions of suit required by that section were satisfied, as qualified or relieved by the Acts of 1902 and 1912, hereafter referred to. Section 3226 provides that no suit shall be maintained for the recovery of a tax illegally or erroneously assessed or collected, “until appeal shall have been duly made to the Commissioner of Internal Revenue,', according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of the Commissioner has been had therein.” If, however, it is provided, decision be delayed more than six months from the date of the appeal, suit may be brought within another period prescribed, which it is not necessary to mention. The section is clear enough and unless modified’ or changed precludes the present suit as it was applicable to the tax involved (§ 31 of the Act of 1898). But" }, { "docid": "12700832", "title": "", "text": "of limitation feature. But counsel for the defendant insists that for the purpose of suit to recover any overpayment resulting from the failure of any estate to receive the benefit of a deduction for property previously taxed within five years where the second decedent died prior to the effective date of the estate tax provisions of the Revenue Act of 1918, the limitation period is six years from November 23, 1921, the date of enactment of section 403 of the Revenue Act of 1921, and that since this suit was not instituted within six years after that date it is barred. In other words, counsel for defendant contends that the provisions of section 3226, Revised Statutes, as amended by section 1014 (a) of the Revenue Act of 1924 (43 Stat. 343) allowing a suit to be brought for the recovery of a tax within two years after the disallowance by the Commissioner of a refund, do not apply to the retroactive provisions of section 403. This position seems to be' based on the theory that courts audit returns, determine net estates, and make refunds; that a suit to recover an internal revenue tax is, in effect, an appeal from the Commissioner’s decision on a claim for refund and that since the obvious purpose and intent of section 403 of the Revenue Act of 1921, which was continued in force in subsequent revenue acts, were to require a return of the excess tax paid by reason of the failure of an estate to receive the benefit of a deduction provided therein without regard to other provisions requiring the filing of a formal claim for refund within a specified time, the provisions of section 3226 of the Revised Statutes with reference to suit must likewise be discarded in such case. In this we think counsel is in error. The statute, while plainly inconsistent with section 3228, evidences no purpose on the part of Congress to disregard the provisions of section 3226, or any other provision of law, requiring the Commissioner, in the first instance, to audit returns, determine- tax liability, and to" }, { "docid": "14726402", "title": "", "text": "LITTLETON, Judge. Plaintiff’s return for the calendar year 1918 was due under the statute March 15, 1919. Its return was filed June 15, 1919. The original return showed a tax of $9,-740.19, which was paid in four installments throughout 1919. Later an additional assessment of $1,798.77 was paid July 8,1921, and an additional tax of $368 shown .on the amended return filed by plaintiff was paid February 9,1922. March 8 plaintiff filed a claim for refund which stated no basis or grounds for the alleged overpayment but .contained the statement that it was filed to protect plaintiff against the statute of limitations.' This claim was considered by the commissioner and denied and rejected April 16,1924. This claim was filed within five years after, the return for 1918 was due, as permitted by section 252 of the Revenue Act of 1921 (42 Stat. 268). It was rejected by the commissioner after the time for filing a claim for- refund had expired. Thereafter, on June 6, 1924, plaintiff filed the claim for refund referred to in finding 4 for the same amount which had been specified in the earlier rejected claim. This claim gave as the ground and reason for the allowance thereof that plaintiff was entitled to have its profits tax computed under the provisions of section 328, special assessment provision, of the Revenue Act of 1918 (49 Stat. 1093). Subsequent to the filing of this claim, plaintiff duly filed an application for assessment of its profits tax under the special assessment provisions. The application for special assessment was allowed by the commissioner, as a result of which, on October 7, 1925, he determined that there had been an overpayment of $4,-492.56 for 1918. The Comptroller General directed that payment of the overpayment allowed by the commissioner be withheld, and when he subsequently certified to the commissioner, in August, 1928, that there was no longer any reason to withhold payment, the Commissioner of Internal Revenue decided that since the claim for refund filed March 8,1924, stated no grounds and had been considered and rejected upon thé record before him, the claim" }, { "docid": "9859431", "title": "", "text": "Whaley, Chief Justice, delivered the opinion of the court: By Senate Resolution 185 of November 10,1941 (77th Congress, 1st Session) there was referred to this court for action in accordance with the Tucker Act, Act of March 3, 1887 (24 Stat. 505), as amended by the Act of March 3, 1911, the claim of certain taxpayers, Senate Bill S. 1645. The plaintiffs involved in these proceedings filed petitions in this court pursuant to Senate Resolution 185 under docket numbers Congressional 17767 to Congressional 17844, inclusive. Six of the parties named in Senate Bill S. 1645 failed to file petitions. Under Section 151 of the Judicial Code, the court is authorized to make a report to the Senate of its determination of the facts involved together with its conclusions as to whether the claims are legal or equitable, or are gratuities— merely an advisory report for the assistance or guidance of the Senate in its proper consideration of the merits of bill S. 1645. Some of the seventy-two plaintiffs involved filed returns under the War Revenue Act of June 13,1898 (c. 448, 30 Stat. 448), and the others filed returns under the Emergency Revenue Act of October 22,1914 (c. 331, 38 Stat. 745), and paid the taxes shown due on those returns. Subsequent to the filing of their returns, other taxpayers similarly situated contested the interpretation by the Commissioner of Internal Revenue of these Acts under which they, as well as these plaintiffs, had made payments of these taxes. The contro versy was decided in 1922 adversely to the Commissioner. Fidelity and Deposit Company of Maryland v. United States, 259 U. S. 296. At that time a large number of cases was pending in the courts and in the Internal Bevenue Bureau on claims for refund timely filed. These cases were disposed of by the refunding of the amount of the overpayments shown due pursuant to a computation under a formula agreed upon by the Secretary of the 'Treasury and the Attorney General. Plaintiffs, however, were not given refunds for the reason that proof of the filing of timely claims for" }, { "docid": "22692409", "title": "", "text": "and also by its failure to institute suit within two years after the cause of action accrued, Rev. Stats., § 3227.. The claimant contends that the amended returns filed by the Commissioner of Internal Revenue were not amendments or modifications of the original returns, but were based upon a different principle and, within the scope of Cheatham v. United States, 92 U. S. 85, constituted new assessments from which appeals were taken in time. But they are denominated “amended returns” and while in dealing with the same items the basis of computation was in some cases varied, in each cáse the purpose and effect of them was to increase the payment which the claimant was required to make under the law and the payments made on the original returns were credited on the amounts computed as due on the returns as amended. The inapplicability of Cheatham v. United States, 92 U. S. 85, is obvious, and the contention that the filing of the amended returns constituted the beginning of new proceedings which so superseded the original returns, as to release the claimant from its entire¡ failure to. observe the statutory, requirement for review of the latter is so un founded that we cannot consent to enter upon a detailed discussion of it.. This conclusion renders § 14 of t^xe Act of Congress of September 8, 1916, c. 463, 39 Staij. 772, inapplicable. ' * It results that the judgment of the Court of Claims is modified, and as so modified affirmed, and the case is remanded to that court for proceedings in accordance with this opinion. Affirmed with Modifications and Remanded." }, { "docid": "22447810", "title": "", "text": "not apply, inasmuch as such an application was “the statutory equiválent of a common law protest or notice of suit.” The reference is to section 3220 of the Revised Statutes, which provides that the Commissioner of Internal Revenue, on appeal to him, may remit, refund and pay back all taxes erroneously or illegally assessed or collected, or that appear to have been unjustly assessed or excessive in amount, or in any manner wrongfully collected; and also “repay to any collector or deputy collector the full amount of such sums of money as may be recovered against him in any court, for any internal taxes collected by him, with the costs and expenses of suit;” while sections 3226, 3227, and 3228 provide that no suit shall be maintained for the recovery of internal taxes alleged to have been erroneously or illegally assessed or collected “until appeal shall have been duly made to the Commissioner of the Internal Revénue;” or unless brought within two years after the cause of action accrued; and that the claim for refunding shall be presented to the Commissioner within two years. The words “until appeal shall have been duly made,” appear to us to imply an adverse decision by the collector, at least a compelled payment, or official demand for payment, from which the appeal is taken. In Stewart v. Barnes, 153 U. S. 456, this court treated the language as providing for “an appeal,” and we. think correctly. The opinion considered section 19 of the act of July 13, 1866, 14 Stat. 98, 152, c. 184, carried forward into section 3226, and section 44 of the act of June 6, 1872, 17 Stat. 230, 257, c. 315, from which sections 3227 and 3228 were drawn. We give them in the margin. This petition did not set up any ruling of the collector, either specific, or resulting from a demand to which petitioner yielded under protest or with notice, and from which he appealed to the Commissioner, but averred that he “made a written application” to the Commissioner to refund the amount he had paid. We do" }, { "docid": "4172924", "title": "", "text": "and 1920 was $1,-246,300; $1,340,000; $1,295,800 and $1,295,-800, respectively, and was represented by outstanding capital stock in those amounts. As to earned surplus, it found that, in view of the offsetting adjustments in favor of the United States, allowed by the findings,, taxpayer’s earned surplus as determined by the Commissioner for 1917-1920 has been: either completely or substantially eliminated. It further found that in no event could: taxpayer’s ‘invested capital be adjusted so as to exceed the total amount of invested; capital determined by the Commissioner for each of the years 1917 to 1920, inclusive, * * * > “Taxpayer filed, annually, returns of net income for 1909, 1910, 1911 and 1912, under Section 38 of the Corporation Excise Tax law, 36 Stat. 112, showing net taxable incomes for each of those years, except possibly 1912. Returns were also filed for 1913, 1914, 1915 and 1916, showing net taxable incomes for 1914 and 1915 and' net losses for 1913 and 1916. If taxpayer’s - incomes for 1909 to 1916, inclusive, were adjusted in accordance with the claims now advanced by it, taxes in larger amounts. than were paid for those years would have been due for 1909, 1910, 1911, 1914 and 1915, and net taxable incomes, rather than net losses, would have resulted for 1912,,. 1913 and probably for 1916. “Taxpayer timely filed its corporate returns for the calendar years 1917, 1918, 1919 ' and 1920, reporting tax liabilities of $324,- - .570.24, $291,053.13, $13,527.26 and $320,110.-37, respectively, which were paid and are not in dispute, except for $2,867.18 forming part of the liability shown on the 1920 return. “As the result of an audit by the Commissioner of Internal Revenue of taxpayer’s returns filed for 1917 to 1921, inclusive, the assessment of additional income, excess •and war profits taxes was proposed by letters dated in June 1923 and May 1925 for the calendar years 1917 to 1920, inclusive, in the aggregate sum of $789,022.28. In an endeavor to reduce the proposed deficiencies, taxpayer employed the American Appraisal Company which made an investigation and analysis of, and a report on," }, { "docid": "12753985", "title": "", "text": "required to file returns (§ 239), and exempt corporations were not required to file returns. Reg. 45, Art. 621. The Revenue Act of 1921 (Act of Nov. 23, 1921, 42 Stat. 227) repealed § 252 of the 1918 act, § 1400(a). However, by § 252 it re-enacted the former provision, thus extending five years from the time the returns were due within which a claim for “an amount of income * * * tax * * paid in excess of that properly due” might be filed. In “Title XIII. — General Administrative Provisions” under subheading “Refunds” § 1316 amended Rev.St. § 3228 to read: “All claims for the refunding or crediting of any internal revenue tax alleged to have been erroneously or illegally assessed or collected * * * or of any sum alleged to have been excessive or in any manner wrongfully collected, must be presented to the Commissioner of Internal Revenue within four years next after payment of such tax * * * or sum.” Under subheading “Limitations Upon Suits and Prosecutions” § 1318 amended Rev.St. § 3226, by adding thereto: “No such suit or proceeding shall be begun before the expiration of six months from the date of filing such claim unless the Commissioner renders a decision thereon within that time, nor after the expiration of five years from the date of the payment of such tax * * * or sum.” Rev.St. § 3227 was at the same time repealed. § 1319. The legislative history discloses that the purpose of § 1318 was to provide a definite time “in all cases for instituting suits for the recovery of internal revenue taxes alleged to have been erroneously or illegally assessed or collected”. Seidman, supra, 889. Article 1050 of Regulations 62 promulgated under the 1921 act was to the same effect as § 1318, but included the statement: “Under section 3227, which applies to suits instituted prior to the passage of the Revenue Act of 1921, the cause of action accrued upon an unfavorable decision by the Commissioner, or, at the expiration of six months after an appeal" }, { "docid": "22692408", "title": "", "text": "1913. The claimant made its original returns without protest except for the year 1909 and, without appeal to the Commissioner of Internal Revenue, voluntarily paid the taxes computed on them for each of the years. Payment was made for 1909 in June, 1910; for 1910 in June, 1911; for 1911 in June, 1912; for 1912 in June, 1913. No claim for a refund of any of these payments was made until April 30, 1915, and then the claim was in general terms, “For . . . amounts paid by it as taxes which, through lack of information as to the requirements of the law or by error in computation, it may have paid in excess of the amounts.legally due.” This claim was rejected subsequent to the institution of this suit, which was commenced on February 8, 1916. This statement shows the right of the claimant plainly barred by its failure to appeal to the Commissioner of Internal Revenue, Rev. Stats., § 3226 [this is fundamental, King's County Savings Institution v. Blair, 116 U. S. 200], and also by its failure to institute suit within two years after the cause of action accrued, Rev. Stats., § 3227.. The claimant contends that the amended returns filed by the Commissioner of Internal Revenue were not amendments or modifications of the original returns, but were based upon a different principle and, within the scope of Cheatham v. United States, 92 U. S. 85, constituted new assessments from which appeals were taken in time. But they are denominated “amended returns” and while in dealing with the same items the basis of computation was in some cases varied, in each cáse the purpose and effect of them was to increase the payment which the claimant was required to make under the law and the payments made on the original returns were credited on the amounts computed as due on the returns as amended. The inapplicability of Cheatham v. United States, 92 U. S. 85, is obvious, and the contention that the filing of the amended returns constituted the beginning of new proceedings which so superseded the" }, { "docid": "22692407", "title": "", "text": "released the amount of them to the free beneficial use of the company in a real, and not in a mere bookkeeping sense. If this seemingly favorable treatment of insurance compames, is to be otherwise corrected, or changed, it is for Congress, and not for the courts, to amend the law. Since the findings of fact before us do not make the clear showing, which must be required, that the statutory deduction of net reserves in prior years was restored to the free use of the claimant in 1913, it should not have been charged as income with the decrease in that year, and, on the record before us, the holding of the Court of Claims ' must be reversed. There remains the question as to the statute of limitations. : The Government concedes that the case is in time with respect to the amended returns but claims that it is barred by Rev. Stats., §§ 3226, 3227 and 3228, with respect. to taxes paid on the original returns for all of the years but, 1913. The claimant made its original returns without protest except for the year 1909 and, without appeal to the Commissioner of Internal Revenue, voluntarily paid the taxes computed on them for each of the years. Payment was made for 1909 in June, 1910; for 1910 in June, 1911; for 1911 in June, 1912; for 1912 in June, 1913. No claim for a refund of any of these payments was made until April 30, 1915, and then the claim was in general terms, “For . . . amounts paid by it as taxes which, through lack of information as to the requirements of the law or by error in computation, it may have paid in excess of the amounts.legally due.” This claim was rejected subsequent to the institution of this suit, which was commenced on February 8, 1916. This statement shows the right of the claimant plainly barred by its failure to appeal to the Commissioner of Internal Revenue, Rev. Stats., § 3226 [this is fundamental, King's County Savings Institution v. Blair, 116 U. S. 200]," }, { "docid": "22417318", "title": "", "text": "Mr. Justice Butler delivered the opinion of the Court. These actions were brought in the District Court for the Southern District of New York. Each respondent sued to recover income taxes incorrectly determined for 1919 and paid in 1920. On defendant’s motion in the nature of a general demurrer that court dismissed. The Circuit Court of Appeals reversed. 37 F. (2d) 38. 'The sole question is whether the actions were commenced within the time' allowed by R. S., § 3226, as amended. 26 U. S. C., § 156. In 1924, Michel on February 7, and Krieger on September 15, filed a claim for refund. The Commissioner of Internal Revenue by a letter dated August 17, 1925, advised Michel that his claim would be rejected and that the rejection would officially appear on the next schedule to be approved by him. The claim was rejected September 2. The Commissioner, April 2, 1925, sent a like letter to Krieger, and his claim was rejected April 20. The Commissioner did not give notice to either of them that his claim had been disallowed or of the date of dis-allowance until June 27, 1928. The suits were subsequently brought more than two years after the rejections and less than two years after the notices. Section 3226 as amended provides: “ No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . . until a claim for refund or credit has been duly filed with the Commissioner of. Internal Revenue ... No such suit or proceeding shall be begun before the expiration of six months from the date of filing such claim unless the commissioner renders a decision thereon within that time, nor after the expiration of five years from the date of the payment of such tax . ... unless such suit or proceeding is begun within two years-after the disallowance of the part of such claim to which such suit or proceeding relates. The commissioner shall within 90 days after any such disallowance notify" } ]

[ { "docid": "20921554", "title": "", "text": "finding of fraudulent intent_ The significance of the above-stated decision is that the law of fraudulent transfers or conveyances under § 726.01 required a showing and proof of the debtor’s actual intent to hinder, delay, or defraud creditors through the exercise or use of badges of fraud. The Trustee has failed to plead or prove that CAPITAL BANK was acting fraudulently or that it participated in any fraud. b. Identity of Interests and Economic Unit Analysis In 1984, the United States District Court in the case of TeleFest, Inc. v. VU-TV, Inc., 591 F.Supp. 1368 (D.N.J.1984), was presented with a situation in which it was argued that a payment that was made by a subsidiary on behalf of the parent corporation under circumstances where there was no contractual obligation to make payment, constituted a fraudulent conveyance. This limited view of consideration was not adopted by the United States District Court sitting in New Jersey. In rendering its decision, the District Court relied on an opinion by a Bankruptcy Court in Alabama. The Court in TeleFest, recognized and relied on the ‘identity of interest’ rule found in In Be Royal Crown Bottlers of North Alabama, 23 B.R. 28 (Bkrtcy.N.D.Ala.1982). There, the court held that an insolvent debtor receives ‘less than a reasonably equivalent value’ when it transfers property for a consideration to a third party, but that A clear distinction from this rule exists, however, if the debtor and the third party are so related or situated that they share an ‘identity of interests’, because what benefits one, will in such case, benefit the other to some degree. TeleFest, supra, at 1378, quoting, In re Royal Crown Bottlers, supra. The Tele-Fest Court set out the “identity of interest” rule when it wrote: ‘[t]he ultimate question then becomes one of determining the value of this vicarious benefit and testing it by the measure of ‘reasonably equivalent’ for the property transferred by the insolvent debtor. When the consideration for a transfer passes to the parent corporation of a debtor/subsidiary making the transfer ... the benefit to the debtor may be presumed to be" } ]

[ { "docid": "21743430", "title": "", "text": "No. 5:11cv00048, 2016 WL 3926492, at *13-15 (W.D. Va. July 18, 2016) (conceding, however, that “Delaware ... has not expressly authorized reverse veil piercing”), appeal docketed, No. 16-1920 (4th Cir. Aug. 12, 2016); Kelley v. Opportunity Fin., LLC (In re Petters Co.), 561 B.R. 738, 751-52 (Bankr. D. Minn. 2016). These decisions are no more persuasive than the non-Delaware decisions that ALT Hotel cited in 2012. See ALT Hotel, 479 B.R. at 803 n.14 . Gierum would have no piercing remedy for JZ Enterprises LP even if Delaware did recognize reverse piercing. JZ Enterprises LP is a limited partnership, not a corporation, and so has no “corporate veil” to pierce. Some states nonetheless recognize \"veil piercing” of limited partnerships. See, e.g., Canter v. Lakewood of Voorhees, 420 N.J.Super. 508, 519, 22 A.3d 68, 75 (App. Div. 2011). Others do not. See, e.g., Seidler v. Morgan, 277 S.W.3d 549, 558 n.5 (Tex. Ct. App. 2009). JZ Enterprises LP is a Delaware limited partnership. No Delaware decision has addressed whether to recognize piercing of limited partnerships, and the only decision elsewhere to consider whether Delaware would recognize the theory concluded it would not. See Faulkner v. Kornman (In re Heritage Org., L.L.C.), 413 B.R. 438, 514 n.64 (Bankr. N.D. Tex. 2009). . A more recent Seventh Circuit decision notes that Illinois prohibits inside reverse piercing. See Wachovia Sec., LLC v. Loop Corp., 726 F.3d 899, 908 (7th Cir. 2013). . See BCL Sheffield, LLC v. Gemini Int'l, Inc. (In re Tolomeo), No. 15 C 8118, 2015 WL 8741730, at *7 (N.D. Ill. Dec. 15, 2015) (citing Sea-Land and Paloian v. Geneva Seal, Inc. (In re Canopy Fin., Inc.), 477 B.R. 696 (N.D. Ill. 2012), appeal dismissed, 832 F.3d 815 (2016)); TCF Nat’l Bank v. SIS Global (USA), Inc., No, 14 C 9429, 2015 WL 6673838, at *3 (N.D. Ill. Oct. 30, 2015) (citing Canopy and noting that it cited Sea-Land)] Wachovia Sec., LLC v. Neuhauser, No. 04 C 3082, 2013 WL 3273816, at *3 (N.D. Ill. June 27, 2013) (citing Scholes and Boatmen’s and finding no support for the position that reverse" }, { "docid": "12603511", "title": "", "text": "In re Dowden, 429 B.R. 894, 902-03 (Bankr. S.D. Ohio 2010); In re Robinson, 427 B.R. 412, 414 (Bankr. W.D. Mich. 2010); In re Burnette, No. 09-00699-8-JRL, 2009 WL 961807, at *1-2 (Bankr. E.D.N.C. Apr, 2, 2009); In re Graham, No, 07-62339-fra11, 2008 WL 4628444, at *2-3 (Bankr. D. Or. Oct. 17, 2008); In re Milledge, No. 08-62839, 2008 WL 7866897, at *1-2 (Bankr. N.D. Ga. Apr. 10, 2008); In re Ajaka, 370 B.R. 426, 429 (Bankr. N.D. Ga. 2007); In re McFeeley, 362 B.R. 121, 124-26 (Bankr. D. Vt. 2007); In re Stanford, 373 B.R. 890, 893-95 (Bankr. E.D. Ark. 2007); In re Simonson, No. 06-22833 (MBK), 2007 WL 703542, at *1-2 (Bankr. D.N.J. Mar. 2, 2007); In re Taylor, No. 07-3105 5-KRH, 2007 WL 1234932, at *4-5 (Bankr. E.D. Va. Apr. 26, 2007); In re Tubman, 364 B.R. 574, 582-84 (Bankr. D. Md. 2007); Bankers Trust Co. of Cal. v. Gillcrese (In re Gillcrese), 346 B.R. 373, 373-77 (Bankr. W.D. Pa. 2006); In re Brandon, 349 B.R. 130, 131-32 (Bankr. M.D.N.C. 2006); In re Harris, 342 B.R, 274, 276-280 (Bankr. N.D. Ohio 2006); In re Hollingsworth, 359 B.R, 813, 814 (Bankr. D. Utah 2006); In re Johnson, 335 B.R. 805, 806-07 (Bankr. W.D. Tenn. 2006); In re Jones, 339 B.R. 360, 363-65 (Bankr. E.D.N.C. 2006); In re Moon, 339 B.R. 668, 670-73 (Bankr. N.D. Ohio 2006); In re Pope, 351 B.R. 14, 15-16 (Bankr. D.R.I. 2006); In re Rice, 392 B.R. 35, 38 (Bankr. W.D.N.Y. 2006); In re Williams, 346 B.R. 361, 368-70 (Bankr. E.D. Pa. 2006). Minority: Reswick v. Reswick (In re Reswick), 446 B.R. 362, 365-73 (9th Cir. B.A.P. 2011); St. Anne’s Credit Union v. Ackell, 490 B.R. 141, 143-45 (D. Mass. 2013); In re Akwa, No. 15-26914-PM, 2016 WL 67219, at *1 (Bankr. D. Md. Jan. 5, 2016); In re Wilson, No. 13-21001 (ASD), 2014 WL 183210, at *1 (Bankr. D. Conn. Jan. 15, 2014); In re Jackola, No. 11-01278, 2011 WL 2518930, at *3 (Bankr. D. Haw. June 22, 2011); In re Furlong, 426 B.R. 303, 307 (Bankr. C.D. Ill. 2010); In re Daniel," }, { "docid": "16130509", "title": "", "text": "§ 550(b)(1)). . In re Dealers Agency Services, Inc., 380 B.R. 608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc., 511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182, 184 (1912). . Fla. Stat. § 726.105(l)(a). . Fla. Stat. § 726.105(l)(b). . Fla. Stat. § 726.106(1). . In re Phoenix Diversified Investment Corp., 2011 WL 2182881, *4 (Bankr.S.D. Fla. June 2, 2011). That determination is made on the specific facts of the case and the circumstances relevant to the transaction. In re 21st Century Satellite Communications, Inc., 278 B.R. 577, 582 (Bankr.M.D.Fla.2002). . Berkman Case, Doc. No. 115-1, SAM Case, Doc. No. 61-1. . Berkman Case, Doc. No. 50. .See Goldberg v. Chong, 2007 WL 2028792, *6 (S.D. Fla. July 11, 2007) (noting that a transferor may not manufacture an illusory debt merely to satisfy the statute). Cf. In re Southmark Corp., 138 B.R. 820, 830 (Bankr. N.D.Tex.1992) (holding that judgment debtor received reasonably equivalent value when judgment creditor received payment under a supersedeas bond and subsequently released its judgment). . 138 B.R. at 830. . At the time, the United States Trustee had not yet filed suit to revoke Berkman’s discharge. . In re Seminole Walls & Ceilings Corp., 446 B.R. 572, 596 (Bankr.M.D.Fla.2011). . Nelson v. Cravero Constructors, Inc., 117 So.2d 764, 766 (Fla. 3d DCA 1960). . Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1319 (M.D.Fla.2009); In re Evergreen Security, Ltd., 319 B.R. 245, 254 (Bankr.M.D.Fla. 2003). . Wiand, 611 F.Supp.2d at 1319. . Evergreen Security, 319 B.R. at 255. . Exh. No. 108; Berkman Case, Doc. No. 162, ¶ 19. . Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). . Thompkins v. Lil Joe Records, Inc., 476 F.3d 1294, 1314 (11th Cir.2007). . 834 So.2d 285 (Fla. 2d DCA 2003). . 959 So.2d 322, 331-32 (Fla. 5th DCA 2007). . Thompkins v. Lil Joe Records, Inc., 476 F.3d at 1314. . In re Standard Jury Instructions—Contract and Business Cases, 116 So.3d" }, { "docid": "16130508", "title": "", "text": "165. . It was public knowledge that Facebook planned an initial public offering. See http:// www.cbsnews.com/news/facebook-poised-for-ipo. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 110-1, ¶¶ 28-29. . Adv. Pro. No. 8:13-ap-479-CED. . Berkman Case, Doc. No. 213. . Fla. Stat. § 726.101, et seq. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 1. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 109. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 62. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 91. . SAM Case, Doc. No. 168. . Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 1, 45. . Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 31, 41. . Adv. Pro. No. 8:13-ap-336-CED, Doc. Nos. 94-98; Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 75-78. Alco is a party only to Adv. Pro. No. 8:13-ap-336-CED. . Each. No. 150. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 122, ¶¶ 15-16. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 124. . See, e.g., In re Equipment Acquisition Resources, Inc., 2014 WL 1979366 (N.D.Il. May 15, 2014) (granting summary judgment to transferee on issue of good faith defense under § 550(b)(1)). . In re Dealers Agency Services, Inc., 380 B.R. 608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc., 511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182, 184 (1912). . Fla. Stat. § 726.105(l)(a). . Fla. Stat. § 726.105(l)(b). . Fla. Stat. § 726.106(1). . In re Phoenix Diversified Investment Corp., 2011 WL 2182881, *4 (Bankr.S.D. Fla. June 2, 2011). That determination is made on the specific facts of the case and the circumstances relevant to the transaction. In re 21st Century Satellite Communications, Inc., 278 B.R. 577, 582 (Bankr.M.D.Fla.2002). . Berkman Case, Doc. No. 115-1, SAM Case, Doc. No. 61-1. . Berkman Case, Doc. No. 50. .See Goldberg v. Chong, 2007 WL 2028792, *6 (S.D. Fla. July 11, 2007) (noting that a transferor may not manufacture an illusory debt merely to satisfy the statute). Cf. In re Southmark Corp., 138 B.R. 820, 830 (Bankr. N.D.Tex.1992) (holding that judgment debtor received reasonably" }, { "docid": "22524043", "title": "", "text": "the district court. Upon further consideration of the issue, however, the court has concluded that the claims in this case are within its core jurisdiction and that the court has the constitutional authority to enter a final judgment. Congress explicitly authorized bankruptcy courts to enter final judgments resolving disputes over fraudulent conveyances. 28 U.S.C. § 157(b)(2)(H) (\"Bankruptcy judges may hear and determine all ... core proceedings arising under title 11 ... and may enter appropriate orders and judgments ...[in] ... proceedings to determine, avoid, or recover fraudulent conveyances ...\"). In 2011, the Supreme Court held that a non-Article III bankruptcy court does not have the constitutional authority to enter a final judgment on a state law counterclaim that is not a part of the bankruptcy claims process despite the bankruptcy court's statutory authority under 28 U.S.C. § 157(b)(2)(C). Stern v. Marshall , 564 U.S. 462, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). Since Stern , courts have grappled with whether bankruptcy courts may enter final judgments in other core proceedings explicitly enumerated in § 157(b)(2), including fraudulent transfer cases. This court agrees with the many courts that read Stern narrowly and conclude that bankruptcy courts have the constitutional authority to enter final judgments in fraudulent transfer proceedings. See, e.g., Reid v. Wolf (In re Wolf ), No. 16 A 00066, 2018 WL 2386813 (Bankr. N.D. Ill. May 24, 2018) ; Clay v. City of Milwaukee (In re Clay ), No. 14 A 2315, 2015 WL 3878454 (Bankr. E.D. Wis. June 19, 2015) ; Mason v. Ivey , 498 B.R. 540, 546 (M.D.N.C. 2013) ; KHI Liquidation Trust v. Wisenbaker Builder Services, Inc. (In re Kimball Hill, Inc. ), 480 B.R. 894 (Bankr. N.D. Ill. 2012) ; Andrews v. RBL, LLC (In re Vista Bella, Inc. ), No. 12 A 00060, 2012 WL 3778956, at *2 (Bankr. S.D. Ala. Aug. 30, 2012) ; Gugino v. Canyon Co. (In re Bujak ), No. 11 A 6038, 2011 WL 5326038, at *4 (Bankr. D. Idaho Nov. 3, 2011) ; Liberty Mutual Insur. Co. v. Citron (In re Citron ), No. 09 A 8125," }, { "docid": "9098783", "title": "", "text": "E.D.N.C. 2006) (\"Deciphering this puzzle is like trying to solve a Rubik's Cube that arrived with a manufacturing defect.\"); In re Steinhaus, 349 B.R. 694, 706 (Bankr. D. Idaho 2006) (\"[I]t appears unmistakable that Congress drafted, or allowed to be drafted by others and then enacted, provisions with 'loose' and imprecise language.\"). Other cases in which the court adopted the Majority Approach include Witkowski v. Knight, 523 B.R. 291, 296-97 (1st Cir. BAP 2014) ; In re Holcomb, 380 B.R. 813, 815-16 (10th Cir. BAP 2008) ; In re Jumpp, 356 B.R. 789, 793-97 (1st Cir. BAP 2006) ; In re Weil, 2013 WL 1798898, 2013 U.S. Dist. LEXIS 60500 (D. Conn. 2013) ; In re Roach, 555 B.R. 840, 842-48 (Bankr. M.D. Ala. 2016) ; In re Hale, 535 B.R. 520, 527-28 (Bankr. E.D.N.Y. 2015) ; In re Rinard, 451 B.R. 12, 17-20 (Bankr. C.D. Cal. 2011) ; In re Dowden, 429 B.R. 894, 902-03 (Bankr. S.D. Ohio 2010) ; In re Tubman, 364 B.R. 574, 582-84 (Bankr. D. Md. 2007) ; In re Gillcrese, 346 B.R. 373, 373-77 (Bankr. W.D. Pa. 2006) ; In re Brandon, 349 B.R. 130, 131-32 (Bankr. M.D.N.C. 2006) ; In re Harris, 342 B.R. 274, 276-280 (Bankr. N.D. Ohio 2006) ; In re Hollingsworth, 359 B.R. 813, 814 (Bankr. D. Utah 2006) ; In re Johnson, 335 B.R. 805, 806-07 (Bankr. W.D. Tenn. 2006) ; In re Jones, 339 B.R. 360, 363-65 (Bankr. E.D.N.C. 2006) ; In re Pope, 351 B.R. 14, 15-16 (Bankr. D.R.I. 2006) ; In re Rice, 392 B.R. 35, 38 (Bankr. W.D.N.Y. 2006) ; In re Williams, 346 B.R. 361, 368-70 (Bankr. E.D. Pa. 2006). Cases in which the court adopted the Minority Approach include In re Reswick, 446 B.R. 362, 365-73 (9th Cir. BAP 2011) ; St. Anne's Credit Union v. Ackell, 490 B.R. 141, 143-45 (D. Mass. 2013) ; In re Smith, 573 B.R. 298, 304 (Bankr. D. Me. 2017), aff'd sub nom. Smith v. Maine Bureau of Revenue Servs., 2018 WL 2248586, 2018 U.S. Dist. LEXIS 82211 (D. Me. 2018) ; In re Wilson, 2014 WL" }, { "docid": "19571007", "title": "", "text": "State Higher Educ. Serv. Corp. , 296 B.R. 298, 302 (S.D.N.Y. 2003), aff'd , 84 Fed. Appx. 158 (2d Cir. 2004) (quoting Pa. Higher Educ. Assistance Agency v. Faish (In re Faish) , 72 F.3d 298, 306 (3d Cir. 1995), cert. denied , 518 U.S. 1009, 116 S.Ct. 2532, 135 L.Ed.2d 1055 (1996) ; see also Bacote v. Educ. Credit Mgmt. Corp. , 2006 WL 3732993, at *8, 2006 Bankr. LEXIS 4645, at *23 (Bank. S.D.N.Y. 2006) (citing Williams ). i. Minimal Standard of Living In determining whether a debtor has satisfied the first Brunner factor, courts focus on household income and the expenses necessary to meet a debtor's basic needs, such as food, shelter, clothing, transportation and medical treatment, and assess whether a debtor has sought to maximize income while minimizing certain discretionary expenses. Pincus , 280 B.R. at 318. A debtor need not \"live a life of abject poverty, but it does require 'more than a showing of tight finances.' \" Johnson v. Sallie Mae Inc. (In re Johnson) , 550 B.R. 874, 879 (Bankr. M.D. Ala. 2016) (quoting McLaney v. Ky. Higher Educ. Assistance Auth. (In re McLaney) , 375 B.R. 666, 674 (M.D. Ala. 2007) ). See also Mosley v. General Revenue Corp. (In re Mosley) , 330 B.R. 832, 841 (Bankr. N.D. Ga. 2005), aff'd , 494 F.3d 1320 (11th Cir. 2007) ; Faish , 72 F.3d at 306. A debtor must demonstrate financial circumstances that goes beyond the \"garden-variety financial hardship\" that most debtors experience. Wolph v. U.S. Dept. of Educ. (In re Wolph) , 479 B.R. 725, 729 (Bankr. N.D. Ohio 2012) ; Pincus , 280 B.R. at 317 (finding the minimal standard of living to require more than significant forbearance in personal and financial matters or a restricted budget). Plaintiff argues that while she is earnestly seeking to build her law practice, she continues to live with her parents and pay them $100 a week whenever she can. An amount she contends is far less than alternative housing costs. Additionally, plaintiff argues that instead of purchasing medicine to treat her medical condition" }, { "docid": "12603509", "title": "", "text": "Regardless of which interpretation is applied, this Court finds that “with respect to the debtor” | does not place a limitation on the termination of the stay under § 362(c)(3)(A) with respect to the debt, property and lease mentioned in the fourth through sixth phrases discussed above. CONCLUSION For all of the foregoing reasons, the Court grants NY Liens’ motion to confirm that the automatic stay terminated in this case 30 days post-filing by operation of § 362(c)(3)(A), and further finds that the § 362(a) stay terminated with respect to any judicial, administrative or other formal proceeding commenced prepetition which relates to a debt or property securing such debt or a lease, regardless of whether the property or lease was property of the estate or property of the Debtor. . Majority: Witkowski v. Knight (In re Witkowski), 523 B.R. 291, 296-97 (1st Cir. BAP 2014); Holcomb v. Hardeman (In re Holcomb), 380 B.R. 813, 815-16 (10th Cir. BAP 2008); Jumpp v, Chase Home Fin., LLC (In re Jumpp ), 356 B.R. 789, 793-797 (1st Cir. BAP 2006); Abernathy, LLC v. Smith, No. 1:13— CV-03801-RWS, 2014 WL 4925654, at *4-5 (N.D. Ga, Sept. 30, 2014); Chekroun v. Weil (In re Weil), No. 3:12cv462 (SRU), 2013 WL 1798898, at *3 (D. Conn. Apr. 29, 2013); U.S. Bank N.A. v. Mortimore (In re Mortimore), No. 11-955 (RMB), 2011 WL 6717680, at *5 (D.N.J. Dec. 21, 2011); In re Roach, 555 B.R. 840, 842-48 (Bankr. M.D. Ala. 2016); In re Hale, 535 B.R. 520, 527-28 (Bankr. E.D.N.Y. 2015); In re Rodriguez, 487 B.R. 275, 286-88 (Bankr. D.N.M. 2013); In re Williford, No. 13-31738, 2013 WL 3772840, at *2-3 (Bankr. N.D. Tex, July 17, 2013); In re Scott-Hood, 473 B.R. 133, 135-40 (Bankr. W.D. Tex. 2012) (analysis departs from majority and minority approaches and yet holds that section 362(c)(3)(A) terminates with respect to (1) debtor individually, (2) debtor’s exempt property ’that stands as collateral for a debt of debtor, and (3) certain leases); In re Rinard, 451 B.R. 12, 17-20 (Bankr. C.D. Cal. 2011); In re Alvarez, 432 B.R. 839, 840-43 (Bankr. S.D. Cal. 2010);" }, { "docid": "12603510", "title": "", "text": "BAP 2006); Abernathy, LLC v. Smith, No. 1:13— CV-03801-RWS, 2014 WL 4925654, at *4-5 (N.D. Ga, Sept. 30, 2014); Chekroun v. Weil (In re Weil), No. 3:12cv462 (SRU), 2013 WL 1798898, at *3 (D. Conn. Apr. 29, 2013); U.S. Bank N.A. v. Mortimore (In re Mortimore), No. 11-955 (RMB), 2011 WL 6717680, at *5 (D.N.J. Dec. 21, 2011); In re Roach, 555 B.R. 840, 842-48 (Bankr. M.D. Ala. 2016); In re Hale, 535 B.R. 520, 527-28 (Bankr. E.D.N.Y. 2015); In re Rodriguez, 487 B.R. 275, 286-88 (Bankr. D.N.M. 2013); In re Williford, No. 13-31738, 2013 WL 3772840, at *2-3 (Bankr. N.D. Tex, July 17, 2013); In re Scott-Hood, 473 B.R. 133, 135-40 (Bankr. W.D. Tex. 2012) (analysis departs from majority and minority approaches and yet holds that section 362(c)(3)(A) terminates with respect to (1) debtor individually, (2) debtor’s exempt property ’that stands as collateral for a debt of debtor, and (3) certain leases); In re Rinard, 451 B.R. 12, 17-20 (Bankr. C.D. Cal. 2011); In re Alvarez, 432 B.R. 839, 840-43 (Bankr. S.D. Cal. 2010); In re Dowden, 429 B.R. 894, 902-03 (Bankr. S.D. Ohio 2010); In re Robinson, 427 B.R. 412, 414 (Bankr. W.D. Mich. 2010); In re Burnette, No. 09-00699-8-JRL, 2009 WL 961807, at *1-2 (Bankr. E.D.N.C. Apr, 2, 2009); In re Graham, No, 07-62339-fra11, 2008 WL 4628444, at *2-3 (Bankr. D. Or. Oct. 17, 2008); In re Milledge, No. 08-62839, 2008 WL 7866897, at *1-2 (Bankr. N.D. Ga. Apr. 10, 2008); In re Ajaka, 370 B.R. 426, 429 (Bankr. N.D. Ga. 2007); In re McFeeley, 362 B.R. 121, 124-26 (Bankr. D. Vt. 2007); In re Stanford, 373 B.R. 890, 893-95 (Bankr. E.D. Ark. 2007); In re Simonson, No. 06-22833 (MBK), 2007 WL 703542, at *1-2 (Bankr. D.N.J. Mar. 2, 2007); In re Taylor, No. 07-3105 5-KRH, 2007 WL 1234932, at *4-5 (Bankr. E.D. Va. Apr. 26, 2007); In re Tubman, 364 B.R. 574, 582-84 (Bankr. D. Md. 2007); Bankers Trust Co. of Cal. v. Gillcrese (In re Gillcrese), 346 B.R. 373, 373-77 (Bankr. W.D. Pa. 2006); In re Brandon, 349 B.R. 130, 131-32 (Bankr. M.D.N.C. 2006); In" }, { "docid": "10143217", "title": "", "text": "a bankrupt’s estate.’ ” Id, (citing In re TOUSA, Inc., 680 F.3d 1298, 1311 (11th Cir. 2012); In re Rodriguez, 895 F.2d 725, 727 (11th Cir. 1990)). “Therefore, § 548(a)(1)(B) ‘does not authorize voiding a transfer which confers an economic benefit upon the debtor’ because ‘the debtor’s net worth will have been preserved, and the interests of the creditors will not have been injured by the transfer.’” Id. (citing Rodriguez, 895 F.2d at 727). “The pivotal question asks what value a debtor received from a transfer.” Id. “The Bankruptcy Code defines “value” for § 548 purposes in § 548(d)(2)(A), to include ‘property, or satisfaction or securing of a present or antecedent debt of the debtor.’” Id. The fact the Debtor “ultimately landed in bankruptcy does not preclude a finding that value was not given, even if the value increased the debtor’s insolvency.” In re PSN USA, Inc., 615 Fed.Appx. 925, 932 (11th Cir. 2015). “A determination of whether value was given under [§ ] 548 should focus on the value of the goods and services provided rather than on the impact that the goods and services had on the bankrupt enterprise.” Id. To determine whether a debt- or received REV, this Court has adopted the three part test set out by the Northern District of Georgia: “(1) whether the debt- or received value; (2) whether the value received was in exchange for the property transferred; and 3) whether the value was reasonably equivalent to the value of the property transferred.” Vista Bella, 511 B.R. 163, 197 (citing In re Knight, 473 B.R. 847, 850 (Bankr. N.D. Ga. 2012). A dollar-for-dollar transaction is not required, nor is strict market equivalence of the transferred property and the received consideration. Id. This Court finds the first two factors have been sufficiently met. First, Kudzu received value as defined by the Code: “value” for § 548 purposes in § 548(d)(2)(A), to include “property, or satisfaction or securing of a present or antecedent debt of the debtor.” Vista Bella, Inc. at 197. “Value includes the mere opportunity to receive an economic benefit in the future.”" }, { "docid": "15185898", "title": "", "text": "Standard The Court reviews the Bankruptcy Court’s factual findings for clear error and its legal conclusions de novo. In re: McLean, 794 F.3d 1313, 1318 (11th Cir. 2015) (citing Christopher v. Cox, 493 F.3d 1336, 1340 n.9 (11th Cir. 2007)). Likewise, the standard of review for mixed questions of law and fact is de novo. Id. III. Analysis The issue in this appeal is whether the Bankruptcy Court erred in denying a motion to reopen a bankruptcy proceeding. A. Motion to Reopen and Laches Section 350(b) of the Bankruptcy Code provides that “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor or for other cause.” 11 U.S.C. § 350(b); see Mohorne v. Beal Bank, S.S.B., 419 B.R. 488, 493 (S.D. Fla. 2009) (“[T]he decision whether to reopen a bankruptcy case is within the sound discretion of the bankruptcy court.”). “The ability to reopen a bankruptcy case is not a [sic) automatic right but instead is left to the sole discretion of the bankruptcy court on a case by case basis looking at the particular circumstances and equities of that specific case.” In re: Mohorne, 404 B.R. 571, 576 (Bankr. S.D. Fla. 2009). The moving party bears the burden of establishing cause to reopen a bankruptcy case. See In re Winburn, 196 B.R. 894, 897 (Bankr. N.D. Fla. 1996). 1. Standard for Reopening a Closed Bankruptcy Proceeding and Laches “When deciding whether to reopen a closed case, courts should generally consider the benefit to creditors, the benefit to the debtor, the prejudice to the affected party, and other equitable factors.” In re: Arana, 456 B.R. 161, 172 (Bankr. E.D.N.Y. 2011); In re: Apex Oil Co., Inc., 406 F.3d 538, 542 (8th Cir. 2005) (holding it is within the bankruptcy court’s discretion to reopen a case based on the particular circumstances and equities of each particular case). Courts also consider the availability of an alternative forum for relief and the length of time between the closing of a case and the motion to reopen. Mohorne, 419 B.R. at" }, { "docid": "9031510", "title": "", "text": "protection\" payments to lenders while paying attorneys' fees, followed by larger payments after the fees are paid in full. Neither party here contends that the collateral at issue here, real estate, is depreciating in value or that Associated Bank is not adequately protected by the retention of its lien or that subsection (B)(iii)(II) somehow applies. See In re Williams, 583 B.R. 453 (Bankr. N.D. Ill. Apr. 10, 2018) ; In re Romero, 539 B.R. 557, 560 (Bankr. E.D. Wis. 2015) ; In re Kirk, 465 B.R. 300 (Bankr. N.D. Ala. 2012) ; In re Willis, 460 B.R. 784 (Bankr. D. Kan. 2011) ; In re Espinosa, 2008 WL 2954282 (Bankr. D. Utah Aug. 1, 2008) ; In re Williams, 385 B.R. 468 (Bankr. S.D. Ga. 2008) ; In re Sanchez, 384 B.R. 574 (Bankr. D. Ore. 2008) ; In re Denton, 370 B.R. 441 (Bankr. S.D. Ga. 2007). Unless the collateral happened to depreciate at a level such that the adequate protection payments would be equal and fully amortize the loan within the term of the plan. Id. See, e.g., In re Romero, 539 B.R. 557, 560 (Bankr. E.D. Wis. 2015) ; In re Enders, 2015 WL 5772199, at *3 (Bankr. E.D. Wis. Sept 30, 2015) ; In re Willis, 460 B.R. 784 (Bankr. D. Kan. 2011) ; In re Sanchez, 384 B.R. 574 (Bankr. D. Ore. 2008). See, e.g., In re Marks, 394 B.R. 198 (Bankr. N.D. Ill. 2008) ; In re Hernandez, 2009 WL 1024621 (Bankr. N.D. Ill. Apr. 14, 2009) ; In re Brennan, 455 B.R. 237 (Bankr. M.D. Fla. 2009) ; In re Amaya, 585 B.R. 403 (Bankr. S.D. Tex. 2018). See also In re Cochran, 555 B.R. 892, 901 (Bankr. M.D. Ga, 2016) (finding Erwin's discussion of the congressional intent with respect to section 1325(a)(5)(B)(iii) to \"be the result of mere educated speculation\" rather than \"citations to formal legislative history\"); In re Bollinger, 2011 WL 3882275 (Bankr. D. Ore. Sept. 2, 2011) (noting that Erwin did \"not provide any sources for [its] holdings regarding the purpose of the statute\"). While the court bases this interpretation" }, { "docid": "21735986", "title": "", "text": "922—23 (Bankr. M.D. Fla. 2009) (explaining that ‘‘[f]or res judicata to apply, a party must establish the following four elements; ‘(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases involve the same parties or their privies; and (4) both cases must involve the same causes of action’ ”) (quoting In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001)); In re DeMasi, 2015 WL 3956135, at *5 (Bankr. M.D. Fla, 2015) (explaining that \"Florida’s collateral estoppel doctrine forecloses relitigation if: ‘(1) the parties are identical with those from the prior case, (2) the issues are identical, (3) there was a full and fair opportunity to litigate the issues and they were actually litigated, and (4) those issues were necessary to the prior adjudication’ ”) (quoting Agripost, LLC v. Miami-Dade Cnty., 525 F.3d 1049, 1055 (11th Cir. 2008)), . 457 B.R. 130, 136 (Bankr. M.D. Fla. 2011) (citing Aeacus Real Estate Ltd. P'ship v. 5th Ave. Real Estate Dev., Inc., 948 So.2d 834 (Fla. 4th DCA 2007)); see also State v. McBride, 848 So.2d 287, 291 (Fla. 2003) (explaining that the Florida Supreme Court \"has long recognized that res judicata will not be invoked where it would defeat the ends of justice\" and that \"collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice”). . Anson, 457 B.R. at 136. . McBride, 848 So.2d at 291. . Id. . Universal Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366, 369 (Fla. 1953) (quoting Gordon v. Gordon, 59 So.2d 40 (Fla. 1952)). . Anson, 457 B.R. at 135—36, . Id. at 133. . Id. . Id. at 133—34. . Id. at 136. . Id. . Debtor’s Ex. 11 at p. 30, 1. 24—p. 33, 1, 3. . Id. at p. 19, 11. 1—6. . Debtor's Ex. 2 at Amended Plan, § C.3.n . See Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992) (\"Put differently, we do not believe" }, { "docid": "22524360", "title": "", "text": "is a technical trust. Not all courts agree that Quaif mandates segregation. See General Produce, Inc. v. Tucker (In re Tucker) , Adv. Pro. No. 06-5107, 2007 WL 1100482, at *4 (Bankr. M.D. Ga. April 10, 2007) (finding segregation is not required so long as the trust res is identifiable and discussing cases with similar holdings). However, some lower courts in the Eleventh Circuit independently have held that segregation is a mandatory element of a technical trust. Several bankruptcy court opinions from the Middle District of Florida refer to a three-part test for determining the existence of a technical trust, and segregation is one of the three essential elements. See, e.g., Cardile Bros. Mushroom Pkg, Inc. v. McCue (In re McCue) , 324 B.R. 389, 392-93 (Bankr. M.D. Fla. 2005) (citing American Surety & Casualty Co. v. Hutchinson (In re Hutchinson) , 193 B.R. 61, 65 (Bankr. M.D. Fla. 1996) for the three-part test, and holding that a PACA trust is not a technical trust because trust assets can be comingled); Cladakis v. Triggiano (In re Triggiano) , 132 B.R. 486, 490 (Bankr. M.D. Fla. 1991) (adopting the same three-part test). Moreover, in an unpublished decision, the Eleventh Circuit affirmed a district court opinion from the Southern District of Florida that adopts the same three-part test. Donald Hanft, M.D., P.A. v. Church (In re Donald Hanft, M.D., P.A.) , 315 B.R. 617, 623 (S.D. Fla. 2002) (\"For a technical trust to exist, three elements must be present: (1) a segregated trust res ; (2) an identifiable beneficiary; and (3) affirmative trust duties established by contract or statute.\" (emphasis added) (citing In re Hutchinson , 193 B.R. 61, 65 (Bankr. M.D. Fla. 1996) ), aff'd sub nom. Hanft v. Church , 73 F. App'x 387 (11th Cir. 2003). Although the Eleventh Circuit did not expressly adopt a segregation requirement in Quaif , it repeatedly has described a segregation requirement as clear indicia of a technical trust relationship. That requirement is of critical importance in the context of this case, where (i) a statute is enacted specifically to prevent dissipation of assets" }, { "docid": "9920815", "title": "", "text": "See also Leibowitz v. Parkway Bank & Trust Co. (In re Image Worldwide, Ltd.), 139 F.3d 574, 579-81 (7th Cir. 1998) (transferee failed to show debtor received reasonably equivalent value for guarantee of loan owed by liquidated affiliate). .Doc. 173 at 12 (citing In re Evans Potato Co., 44 B.R. 191, 193-94 (Bankr.S.D.Ohio 1984); In re Rodriguez, 895 F.2d 725, 728 n. 5 (11th Cir. 1990); and In re Chicago, Missouri & W. Ry. Co., 124 B.R. 769, 773 (Bankr. N.D.Ill.1991)). . Jack F. Williams, Revisiting the Proper Limits of Fraudulent Transfer Law, 8 Bankr. Dev. J. 55, 87 n. 191 (1991) (emphasis supplied). . Jack F. Williams, The Fallacies of Contemporary Fraudulent Transfer Models as Applied to Intercorporate Guaranties: Fraudulent Transfer Laws as a Fuzzy System, 15 Cardozo L. Rev. 1403, 1426 n. 95 (March 1994) (emphasis supplied). . Renegade Holdings, 457 B.R. at 447. . Doc. 171 at 40-41. . Depo. of Christopher J. Redmond dated Sept. 24, 2014 at 32:13-19. . Doc. 171 at 48. . Cuevas v. Hudson United Bank (In re M. Silverman Laces, Inc.), 2002 WL 31412465 at *6 (S.D.N.Y. Oct. 24, 2002). .Pembroke Dev. Corp. v. Commonwealth Savs. & Loan Ass'n (In re Pembroke Dev. Corp.), 124 B.R. 398, 400-01 (Bankr.S.D.Fla. 1991). . See 5 Cottier on Bankruptcy, ¶ 548.01[2][a] at 548-15 (\"For the most part, the UFTA tracks section 548.”). . Clark v. Sec. Pac. Bus. Credit, Inc. (In re Wes Dor, Inc.), 996 F.2d 237, 242-43 (10th Cir.1993). . Jobin v. McKay (In re M & L Business Mach. Co., Inc.), 84 F.3d 1330, 1338 (10th Cir.1996). . Stalnaker v. Gratton (In re Rosen Auto Leasing, Inc.), 346 B.R. 798, 806 (8th Cir. BAP 2006) (citing Helms v. Roti (In re Roti), 271 B.R. 281, 299 (Bankr.N.D.Ill.2002)). Roti also said,“[C]ourts have denied use of the § 548(c) shelter to defendants who were not able to establish 'reasonably equivalent value' for purposes of § 548(a)(1)(B).” 271 B.R. at 299. . Doc. 171 at 23-24 and 49-51. . Doc. 170 at 33-34. . See 2 Barkley Clark and Barbara Clark, The Law of" }, { "docid": "9920814", "title": "", "text": "the parent.’ \" 457 B.R. at 444—45 (quoting Branch v. Fed. Deposit Ins. Corp., 825 F.Supp. 384, 399-400 (D.Mass.1993). .Doc. 171 at 35-36 (citing Renegade, 457 B.R. at 445; In re Worldcom, Inc., 2003 WL 23861928 at *41 (Bankr.S.D.N.Y. Oct. 31, 2003)). . Trego WaKeeney State Bank v. Maier, 214 Kan. 169, 173, 519 P.2d 743, 747 (1974). . Exh. F-l at 2. In the Option Agreement, Brooke Corp is referred to as \"Brooke.” . Exh.VVW at 31. . Exh. 13 at 5 & exh. 14 at 4. . Doc. 173 at 10. . 457 B.R. 441. . Id. at 444. . Id. . Id. at 444-45. . Id. at 445. . Id. . E.g., In re Pace, 456 B.R. 253, 272 (\"Transfers to a debtor’s wholly-owned but insolvent company do not furnish 'reasonably equivalent value.” ’); In re Worldcom, Inc., 2003 WL 23861928 at *41 (\"Courts have found a parent’s transfer of assets to a subsidiary to be for less than reasonably equivalent value when the subsidiary was insolvent at the time of transfer.”). See also Leibowitz v. Parkway Bank & Trust Co. (In re Image Worldwide, Ltd.), 139 F.3d 574, 579-81 (7th Cir. 1998) (transferee failed to show debtor received reasonably equivalent value for guarantee of loan owed by liquidated affiliate). .Doc. 173 at 12 (citing In re Evans Potato Co., 44 B.R. 191, 193-94 (Bankr.S.D.Ohio 1984); In re Rodriguez, 895 F.2d 725, 728 n. 5 (11th Cir. 1990); and In re Chicago, Missouri & W. Ry. Co., 124 B.R. 769, 773 (Bankr. N.D.Ill.1991)). . Jack F. Williams, Revisiting the Proper Limits of Fraudulent Transfer Law, 8 Bankr. Dev. J. 55, 87 n. 191 (1991) (emphasis supplied). . Jack F. Williams, The Fallacies of Contemporary Fraudulent Transfer Models as Applied to Intercorporate Guaranties: Fraudulent Transfer Laws as a Fuzzy System, 15 Cardozo L. Rev. 1403, 1426 n. 95 (March 1994) (emphasis supplied). . Renegade Holdings, 457 B.R. at 447. . Doc. 171 at 40-41. . Depo. of Christopher J. Redmond dated Sept. 24, 2014 at 32:13-19. . Doc. 171 at 48. . Cuevas v. Hudson United Bank (In" }, { "docid": "4452679", "title": "", "text": "Cline), 386 B.R. 344, 353-54 (Bankr.N.D.Ala.2008), Roach does not base her legal argument on the Court's order confirming her plan, so the Court assumes arguendo that the holding in Cline is correct. But see State of Fla. Dep’t of Revenue v. Gonzalez (In re Gonzalez), 823 F.3d 1251, 2016 WL 4245422, 2016 U.S. App. LEXIS 14789 (11th Cir. Aug. 11, 2016) (holding that the domestic support obligation exception to the automatic stay under 11 U.S.C. § 362(b)(2)(C) does not override the contrary provisions of a confirmed plan pursuant to 11 U.S.C, § 1327(a)). Neither Berry nor Cline address whether § 362(c)(3)(A) terminates the automatic stay completely or only as to property of the debtor. . Abernathy, LLC v. Smith, 2014 WL 4925654, 2014 U.S. Dist. LEXIS 137918 (N.D.Ga. Sept. 30, 2014); Chekroun v. Weil (In re Weil), 2013 WL 1798898, 2013 U.S. Dist. LEXIS 60500 (D.Conn. Apr. 29, 2013); U.S. Bank Nat'l Assoc. v. Mortimore (In re Mortimore), 2011 WL 6717680, 2011 U.S. Dist. LEXIS 146423 (D.N.J. Dec. 21, 2011); Witkowski v. Knight (In re Witkowski), 523 B.R. 291 (1st Cir. B.A.P. 2014); Holcomb v. Hardeman (In re Holcomb), 380 B.R. 813 (10th Cir. B.A.P. 2008); Jumpp v. Chase Home Fin., LLC (In re Jumpp), 356 B.R. 789 (1st Cir. B.A.P. 2006); In re Daux, 2016 Bankr. LEXIS 2696 (Bankr.D.N.J. Jul. 22, 2016); In re Hale, 535 B.R. 520 (Bankr.E.D.N.Y.2015); In re Gautreaux, 2014 WL 4657433 (Bankr.E.D.La. Sept. 16, 2014); In re Williford, 2013 WL 3772840, 2013 Bankr. LEXIS 2871 (Bankr.N.D.Tex. Jul. 17, 2013); In re Rodriguez, 487 B.R. 275 (Bankr.D.N.M.2013); In re Scott-Hood, 473 B.R. 133 (Bankr.W.D.Tex.2012); In re Rueth, 2012 Bankr. LEXIS 5249 (Bankr.N.D.Ind. Nov. 8, 2012); Rinard v. Positive Investments, Inc. (In re Rinard), 451 B.R. 12 (Bankr.C.D.Cal.2011); In re Alvarez, 432 B.R. 839 (Bankr.S.D.Cal.2010); In re Dowden, 429 B.R. 894 (Bankr.S.D.Ohio 2010); In re Robinson, 427 B.R. 412 (Bankr.W.D.Mich.2010); In re Graham, 2008 WL 4628444, 2008 Bankr. LEXIS 2694 (Bankr.D.Or. Oct. 17, 2008); Independent Dealers Advantage, LLC v. Milledge (In re Milledge), 2008 WL 7866897, 2008 Bankr. LEXIS 1741 (Bankr.N.D.Ga. Apr. 10, 2008); In re Stanford," }, { "docid": "21625679", "title": "", "text": "L. Paskay, Chief Judge Emeritus of this Court and my bankruptcy law professor, and is employed here in his memory. Another apt phrase of his for use here would be, \"it is without peradventure that ....\" . See Fed. R, B. P. 2015(a)(5), (6). . Walton v. Whitcomb (Matter of Whitcomb), 479 B.R. 133, 140 (Bankr. M.D. Fla. 2012) (quoting In re Saturley, 131 B.R. 509, 517 (Bankr. D. Me. 1991)). .See, e.g., Vergos v. Mendes & Gonzales, PLLC (In re McCrary & Dunlap Constr. Co., LLC), 79 Fed.Appx. 770, 780 (6th Cir. 2003) (denial of all compensation based on noncompliance with Bankruptcy Code and Rules \"through mere negligence” not an abuse of discretion); Henderson v. Kisseberth (In re Kisseberth), 273 F.3d 714, 721 (6th Cir. 2001) (\"[t]o ensure [protection of both creditors and debtors against overreaching attorneys], bankruptcy courts have broad and inherent authority to deny any and all compensation where an attorney fails to satisfy the requirements of the Code and Rules”); Mapother v. Mapother, P.S.C. v. Cooper (In re Downs), 103 F.3d 472, 478 (6th Cir. 1996) (noting that in cases where attorneys have failed to disclose fee arrangements, courts have “consistently denied all fees”); Whitcomb, 479 B.R. at 145 (court ordered attorney to disgorge approximate amount of undisclosed post-petition additional fees attorney sought from debtor-clients); In re Valladares, 415 B.R. 617, 624-25 (Bankr. S.D. Fla. 2009) (full disgorgement of fees ordered based on attorney’s having “repeatedly and willingly” violated the Bankruptcy Code's disclosure requirements); In re Getter, 2009 WL 361379, *2-3 (Bankr. S.D. Fla. 2009) (court ordered disgorgement of undisclosed fees despite finding no intentional concealment of fee agreement); In re Gage, 394 B.R. 184, 191 (Bankr. N.D. Ill. 2008) (\"Many courts, perhaps the majority, punish defective disclosure by denying all compensation.”); cf.Prince v. Electro-Wire Products, Inc. v, Sirote & Permutt, P.C, (In re Prince), 40 F.3d 356, 361 (11th Cir. 1994) (\"While complete denial of fees [for not disclosing connections as required by § 328] may be extreme in some instances .... ‘This sanction serves to deter future wrongdoing by those punished and warn others" }, { "docid": "21625680", "title": "", "text": "472, 478 (6th Cir. 1996) (noting that in cases where attorneys have failed to disclose fee arrangements, courts have “consistently denied all fees”); Whitcomb, 479 B.R. at 145 (court ordered attorney to disgorge approximate amount of undisclosed post-petition additional fees attorney sought from debtor-clients); In re Valladares, 415 B.R. 617, 624-25 (Bankr. S.D. Fla. 2009) (full disgorgement of fees ordered based on attorney’s having “repeatedly and willingly” violated the Bankruptcy Code's disclosure requirements); In re Getter, 2009 WL 361379, *2-3 (Bankr. S.D. Fla. 2009) (court ordered disgorgement of undisclosed fees despite finding no intentional concealment of fee agreement); In re Gage, 394 B.R. 184, 191 (Bankr. N.D. Ill. 2008) (\"Many courts, perhaps the majority, punish defective disclosure by denying all compensation.”); cf.Prince v. Electro-Wire Products, Inc. v, Sirote & Permutt, P.C, (In re Prince), 40 F.3d 356, 361 (11th Cir. 1994) (\"While complete denial of fees [for not disclosing connections as required by § 328] may be extreme in some instances .... ‘This sanction serves to deter future wrongdoing by those punished and warn others who might consider similar defalcations.’ ”) (quoting Gray v. English, 30 F.3d 1319, 1323 (10th Cir. 1994)). .Kisseberth, 273 F.3d at 719 (\"[A]ny payment made to an attorney for representing a debtor in connection with a bankruptcy proceeding is reviewable by the bankruptcy court notwithstanding the source of payment) (quoting In re Walters, 868 F.2d 665, 668 (4th Cir. 1989)). . Kisseberth, 273 F.3d at 721 (citing Neben & Starrett, Inc. v. Chartwell Fin. Corp. (In re Park-Helena Corp.), 63 F.3d 877, 882 (9th Cir. 1995)). . Vergos, 79 Fed.Appx. at 779-780 (providing comprehensive discussion of the application of discretion when dealing with noncompliance with provisions governing payment of compensation of bankruptcy professionals); Gage, 394 B.R. at 191 (extent to which compensation should be denied for failure to disclose fees rests within court’s sound discretion and may include total or partial denial of compensation (emphasis added)). . See, e.g., n. 28. . The initial version of this order included a finding supplied by the United States Trustee’s proposed agreed order that Special Counsel had agreed" }, { "docid": "22524044", "title": "", "text": "including fraudulent transfer cases. This court agrees with the many courts that read Stern narrowly and conclude that bankruptcy courts have the constitutional authority to enter final judgments in fraudulent transfer proceedings. See, e.g., Reid v. Wolf (In re Wolf ), No. 16 A 00066, 2018 WL 2386813 (Bankr. N.D. Ill. May 24, 2018) ; Clay v. City of Milwaukee (In re Clay ), No. 14 A 2315, 2015 WL 3878454 (Bankr. E.D. Wis. June 19, 2015) ; Mason v. Ivey , 498 B.R. 540, 546 (M.D.N.C. 2013) ; KHI Liquidation Trust v. Wisenbaker Builder Services, Inc. (In re Kimball Hill, Inc. ), 480 B.R. 894 (Bankr. N.D. Ill. 2012) ; Andrews v. RBL, LLC (In re Vista Bella, Inc. ), No. 12 A 00060, 2012 WL 3778956, at *2 (Bankr. S.D. Ala. Aug. 30, 2012) ; Gugino v. Canyon Co. (In re Bujak ), No. 11 A 6038, 2011 WL 5326038, at *4 (Bankr. D. Idaho Nov. 3, 2011) ; Liberty Mutual Insur. Co. v. Citron (In re Citron ), No. 09 A 8125, 2011 WL 4711942, at *1 (Bankr. E.D.N.Y. Oct. 6, 2011). As the Kimball Hill and Clay courts noted, an action under § 548 and § 550 is a claim created by a federal statute-not a counterclaim based on state law-that reflects claims that have been part of insolvency proceedings since 1570. Kimball Hill , 480 B.R. at 906 ; Clay , 2015 WL 3878454, fn. 1. The Supreme Court itself stated in Stern that \"the question presented here is a 'narrow' one ... [and that] Congress, in one isolated respect, exceeded that limitation in the Bankruptcy Act of 1984.\" Stern , 564 U.S. at 502, 131 S.Ct. at 2620. Some courts in this circuit have concluded that bankruptcy courts do not have the authority to enter final judgments in fraudulent transfer proceedings. See FTI Consulting, Inc. v. Merit Management Group, LP , 476 B.R. 535 (N.D. Ill. 2012) ; Paloian v. American Express Co. (In re Canopy Financial, Inc. ), 464 B.R. 770 (N.D. Ill. 2011). They adopted a broad reading of Stern as well" } ]

[ { "docid": "22539153", "title": "", "text": "be said to be within that range. The reviewing court must consider whether the Secretary properly construed his authority to approve the use of parkland as limited to situations where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems. And the reviewing court must be able to find that the Secretary could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems. Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706 (2) (A) requires a finding that the actual choice made was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. § 706 (2)(A) (1964 ed., Supp. V). To make this finding 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. Jaffe, supra, at 182. See McBee v. Bomar, 296 F. 2d 235, 237 (CA6 1961); In re Josephson, 218 F. 2d 174, 182 (CA1 1954); Western Addition Community Organization v. Weaver, 294 F. Supp. 433 (ND Cal. 1968). See also Wong Wing Hang v. Immigration and Naturalization Serv., 360 F. 2d 715, 719 (CA2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. The final inquiry is whether the Secretary’s action followed the necessary procedural requirements. Here the only procedural error alleged is the failure of the Secretary to make formal findings and state his reason for allowing the highway to be built through the park. Undoubtedly, review of the Secretary’s action is hampered by his failure to make such findings, but the absence of formal findings does not necessarily require that the case be remanded to the Secretary. Neither the Department of Transportation Act nor the Federal-Aid Highway Act requires such formal findings. Moreover," } ]

[ { "docid": "17537299", "title": "", "text": "824, 28 L.Ed.2d 136, 153 (1971). . Id. (emphasis added). This statement of the scope of review was reaffirmed very recently by a unanimous Supreme Court in Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 284-86, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447, 454-56 (1974). See also Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C. 308, 335, 486 F.2d 375, 402 (1973): “We cannot substitute our judgment for that of the agency, but it is our duty to 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 v. Volpe, 401 U.S. 402, 416, 91 S.ct. 814, 824, 28 L.Ed.2d 136 (1971). Ultimately, we believe, that the cause of a clean environment is best served by reasoned decision-making.” . The Supreme Court made this quite clear in Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 284 & 285, 95 S.Ct. 438, 441 & 442, 42 L.Ed.2d 447, 454 & 455 (19.74) (footnote omitted): The District Court properly concluded that, though an agency’s finding may be supported by substantial evidence, based on the definition in Universal Camera Corp. v. NLRB, 340 U.S. 474, [71 S.Ct. 456, 95 L.Ed. 456], it may nonetheless reflect arbitrary and capricious action. There seems, however, to be agreement that the findings and conclusions of the Commission are supported by substantial evidence. The question remains whether, as the District Court held, the Commission’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” as provided in [5 U.S.C. § 706(2)(A) ]. Under the “arbitrary and capricious” standard the scope of review is a narrow one. 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. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the" }, { "docid": "3606802", "title": "", "text": "aside agency actions, findings or conclusions which are: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; or (2) not supported by substantial evidence. Id. Under the arbitrary and capricious standard: [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 .... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency”.... The agency must articulate a “rational connection between the facts found and the choice made”. . .. While we may not supply a reasoned basis for the agency’s action that the agency itself has not given ... we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974) (citations omitted). See Illinois Terminal R.R. Co. v. Interstate Commerce Comm’n, 671 F.2d 1214, 1216-17 (8th Cir.1982). Under the “substantial evidence” test the Commission’s findings will be affirmed when the evidence would be sufficient to justify a refusal to direct a verdict if the trial was to a jury. Illinois Central R.R. Co. v. Norfolk & Western R.R. Co., 385 U.S. 57, 66, 87 S.Ct. 255, 260, 17 L.Ed.2d 162 (1966). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” American Textile Mfrs., Inst. v. Donovan, 452 U.S. 490, 522, 101 S.Ct. 2478, 2497, 69 L.Ed.2d 185 (1980), quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S. Ct. 456, 459, 95 L.Ed. 456 (1951); See also McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir.1983). Under this test the record must be reviewed as a whole. Illinois Central, 385 U.S. at 66, 87 S.Ct. at 260; Illinois Terminal, 671 F.2d at 1216-17. In addition, “the test must take into account whatever in the" }, { "docid": "19123949", "title": "", "text": "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 (2006). 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 Constuzioni 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 standard of review, an agency’s decision must be sustained if it has a rational basis. Motor Vehicle Mfrs. Ass’n of the United States, 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. Arkansas-Best Freight Sys., Inc., 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. Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated in part by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (abrogating Overton Park by recognizing that the APA is an independent grant of subject-matter jurisdiction). 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" }, { "docid": "890481", "title": "", "text": "questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.” 29 U.S.C. § 660. In addition, the Commission’s interpretations regarding the meaning of the Act should be given substantial deference by a court. 501 F.2d at 1198-1199. Commission decisions, then, are to be upheld unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976), the court cited to Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., et al., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), for the following: A number of circuits have explicitly or implicitly concluded that the proper standard to be applied when reviewing a Commission decision is set out in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A): The reviewing court shall— (2) 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. See, Intercounty Construction Co. v. OSHRC, 522 F.2d 777, 779 (4th Cir. 1975), cert. denied, 423 U.S. 1072, 96 S.Ct. 854, 47 L.Ed.2d 82 (1976); Brennan v. OSHRC (Kesler and Sons Construction Co.), 513 F.2d 553, 555-56 (10th Cir. 1975); Budd Co. v. OSHRC, 513 F.2d 201, 204 (3rd Cir. 1975); Brennan v. OSHRC (Hendrix), 511 F.2d 1139, 1141 (9th Cir. 1975); Brennan v. OSHRC (Republic Creosoting), 501 F.2d 1196, 1198 (7th Cir. 1974). The Supreme Court in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc. et al., 419 U.S. 281, 285-286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), stated: Under the ‘arbitrary and capricious’ standard the scope of review is a narrow one. 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. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the" }, { "docid": "2927548", "title": "", "text": "F.3d at 1357; see also Carahsoft Tech. Corp. v. United States, 86 Fed.Cl. 325, 337 (2009); Gulf Grp., 61 Fed.Cl. at 350. Under the “arbitrary and capricious” standard, the Court considers “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” by the agency. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (“Overton Park”). Although “searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. The court will instead look to see if an agency has “examine[d] the relevant data and articulated] a satisfactory explanation for its action,” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp., Inc. v. Ark-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). The Court must determine whether “the procurement official’s decision lacked a rational basis,” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001) (“Domenico Garufi”) (adopting APA standards developed by the D.C. Circuit); see also Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 204 (D.C.Cir.1984). A second ground for setting aside a procurement decision is when the protester can show that “the procurement procedure involved a violation of regulation or procedure.” Domenico Garufi, 238 F.3d at 1332. This showing must be of a “clear and prejudicial violation of applicable statutes or regulations.” Id. at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973)). Under the first rational basis ground, the applicable test is “whether ‘the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.’” Domenico Garufi, 238 F.3d at 1333 (quoting Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.1994)). This entails determining whether the agency" }, { "docid": "15903704", "title": "", "text": "regarding the effect of fishing on the striped bass problem are disputed, and the Corps is taken to task for failing to consider cumulative impacts in its analysis. RRBA also contends that the Corps ignored important findings by the United States Congress. Additionally, both parties attack the Corps’ determination of the extent of Virginia Beach’s need. VIII. STANDARD OF REVIEW The applicable review standard is found in the Administrative Procedure Act which provides in pertinent part: The reviewing court shall— (2) 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; (D) without observance of procedure required by law. 5 U.S.C.A. § 706(2)(A) & (D) (West 1977). Any interpretation of this standard must begin with the Supreme Court’s decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In Overton Park the Supreme Court made clear that the court’s obligation pursuant to this statute is twofold. The court must consider, first, whether the agency acted within the scope of its authority and, second, whether the actual choice made by the agency was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment. This standard of review is highly deferential and the agency decision is “entitled to a presumption of regularity.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. 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.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962)). Furthermore, the" }, { "docid": "3242103", "title": "", "text": "444 U.S. 4, 100 S.Ct. 16, 62 L.Ed.2d 5 (1979) (per curiam). Pursuant to the directions of the Supreme Court we now shift our focus from the timing of the Commission’s orders to their merit. DISCUSSION The only issue now remaining in the case is the propriety of the Commission’s grant of Consolidated’s application for contract carrier authority. Consolidated and the Commission take the position that the grant was reasonable, lawful and supported by substantial evidence and therefore must be upheld. Because we regard Benmar’s claims to the contrary as lacking in merit, we affirm. Standard of Review Our scope of review is narrow. The Administrative Procedure Act, 5 U.S.C. § 706 provides that: The reviewing court shall— (2) 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 .... [or] (E) unsupported by substantial evidence See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Cross-Sound Ferry Services, Inc. v. United States, 573 F.2d 725 (2d Cir. 1978). Once it has been determined that decisions are supported by substantial evidence, [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. . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” The test here is primarily one of rationality. If the Commission based its order on substantial relevant evidence, fairly ascertained, and if it has made no clear error of judgment, this court is not authorized to overturn that order. Cross-Sound Ferry Services, Inc. v. United States, supra, 573 F.2d at 729-30, quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, 419 U.S. at 285-86, 95 S.Ct. at 441-442 (citations omitted). Cf. International Detective Service, Inc. v. I. C. C., 613 F.2d 1067, 1073 n. 13 (D.C.Cir. 1979)." }, { "docid": "1621271", "title": "", "text": "or (2) the procurement procedure involved a violation of regulation or procedure.’ ” Banknote Corp. of Am., Inc. 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)). Plaintiff must make its showing by a preponderance of the evidence. See, e.g., AmerisourceBergen Drug Corp. v. United States, 60 Fed.Cl. 30, 35 (2004). According to the Supreme Court, [u]nder the ‘arbitrary and capricious’ standard the scope of review is a narrow one. 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.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.’ Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ]. The agency must articulate a ‘rational connection between the facts found and the choice made.’ Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1760, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 89 L.Ed. 1206] (1945). Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1368-69 (Fed.Cir.2009) (stating that under rational basis review, the court will “sustain an agency action evincing rational reasoning and consideration of relevant factors”) (internal quotation marks omitted). In the context of a bid protest in which the agency has accepted the recommendation of GAO, the court must determine, on review, whether the [agency] justifiably followed" }, { "docid": "2149216", "title": "", "text": "complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion. Albert v. Chafee, 571 F.2d 1063, 1065 (9th Cir.1977) (quoting Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir.1970)); 5 U.S.C. § 706(2); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 416, 91 S.Ct. 814, 822-23, 824, 28 L.Ed.2d 136 (1971) (“The court is not empowered to substitute its judgment for that of the agency.”), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977); Garrett v. Lehman, 751 F.2d 997, 1006 (9th Cir.1985) (Commanding General did not abuse discretion in ordering plaintiff returned to active duty, allegedly so Military Administrative Discharge Board would have jurisdiction to award an “other than honorable” discharge); Burns v. Marsh, 820 F.2d 1108, 1110 (9th Cir.1987) (Army Board for Correction of Military Records’ refusal to change military records relating to plaintiff’s nonselection for promotion to colonel upheld as based on substantial evidence and not arbitrary or capricious). Although the scope of review is narrow, the court must make a “searching and careful” inquiry into the agency’s decision-making process, as reflected in the administrative record, to determine (1) whether the agency’s decision “was based on a consideration of the relevant factors;” (2) whether the agency made a “clear error of judgment;” and (3) whether the agency articulated a “rational connection between the facts found and the choice made.” 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) (“searching and careful” inquiry), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977); Sears Sav. Bank v. Fed. Sav. and Loan Ins. Corp., 775 F.2d 1028, 1029 (9th Cir.1985); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974); Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm Mut. Automobile Ins." }, { "docid": "12107073", "title": "", "text": "requested that backpay be given ‘to all affected inspectional personnel in the amount they would have earned in overtime pay between the hours of 5:00 p.m. and 6:00 p.m. had this violation not occurred____’ ” The Authority rejected this request: [T]he Authority finds ... that it has not been established that but for the Respondent’s improper refusal to bargain over the starting and quitting times, employees would have received overtime pay.* Under these circumstances, the Authority concludes that a backpay order is not warranted. *See, Federal Aviation Administration, Northwest Mountain Region, [14 F.L. R.A. 644 (1984) ], and cases cited therein. The Union appeals this determination, pursuant to 5 U.S.C. § 7123. The standard of review of Authority orders is narrow. United States Air Force v. Federal Labor Relations Authority, 681 F.2d 466, 467 (6th Cir.1982). Section 7123(c) of the Act requires that review of Authority orders is to be on the record in accordance with the Administrative Procedure Act, 5 U.S.C. § 706. In discussing such review in the context of the Interstate Commerce Commission, this Court has stated: A decision of the Commission should not be set aside on judicial review unless it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or unsupported by substantial evidence. 5 U.S.C. § 706(2)(A) & (E); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975) ; Coastal Tank Lines, Inc. v. Interstate Commerce Commission, 690 F.2d 537, 542-43 (6th Cir.1982). If the agency considers the relevant factors and articulates a rational connection between the facts found and the choice made, the decision is not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law and will be upheld if supported by substantial evidence. Bowman Transportation, Inc., supra, 419 U.S. at 285, 95 S.Ct. at 441; O-J Transport Co. v. United States, 536 F.2d 126, 129-30 (6th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976) ." }, { "docid": "2687868", "title": "", "text": "those involving the ESA, is governed by § 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See Fund for Animals v. Rice, 85 F.3d 535, 541 — 42 (11th Cir.1996). The APA authorizes a court to set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); see also Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Ins. Co., 463 U.S. 29, 41, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on unrelated grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The APA also provides that a court shall compel agency action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). The scope of review under the APA’s arbitrary and capricious standard is narrow, and a court may not substitute its judgment for that of the agency. See Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43, 103 S.Ct. 2856. To this end, a reviewing court may not set aside an agency rule that is rational, based on consideration of relevant factors, and within the scope of the authority delegated to the agency by the statute. Id. at 42-43, 103 S.Ct. 2856. The Court’s only task is to determine whether the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made. Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (citing Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). In applying the arbitrary and capricious standard, a reviewing court must give the agency action substantial deference. See Fund for Animals, 85 F.3d at 541-42. Where, as here, an agency’s special scientific expertise is involved, the Court must be “most deferential.” See Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76" }, { "docid": "15903705", "title": "", "text": "must consider, first, whether the agency acted within the scope of its authority and, second, whether the actual choice made by the agency was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment. This standard of review is highly deferential and the agency decision is “entitled to a presumption of regularity.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. 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.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962)). Furthermore, the court may not supply a reasoned basis for the decision that the agency has not given. Bowman Transportation, 419 U.S. at 285-86, 95 S.Ct. at 441-42. In Motor Vehicles Manufacturers Ass’n of the United States, Inc. v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), the court said: [A]n 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. Id. at 43, 103 S.Ct. at 2866. In reviewing whether the agency has complied with the requirements of NEPA, the only role for the court is to insure that the agency has taken a “hard look” at the environmental consequences; it cannot “interject itself within the area of discretion of" }, { "docid": "11604378", "title": "", "text": "shall set aside agency actions and conclusions that are (1) “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or (2) “unsupported by substantial evidence.” 5 U.S.C. § 706(2)(A) & (E). These two provisions of the Administrative Procedure Act are separate standards of review. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). An agency’s finding, therefore, may reflect arbitrary and capricious action even though it is supported by substantial evidence. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Midwest Coast Transport, Inc. v. United States, 391 F.Supp. 1209, 1211-1212 (D.S.D.1975); Scanland v. United States Army Test & Evaluation Command, Dept. of Army, 389 F.Supp. 65, 69 (D.Md.1975). The Supreme Court has recently summarized the “arbitrary and capricious” standard of judicial review. Under the “arbitrary and capricious” standard the scope of review is a narrow one. 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. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” . . . The agency must articulate a “rational connection between the facts found and the choice made.” . . . While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Bowman Transportation, supra, 419 U.S. at 285-286, 95 S.Ct. at 442 (citations omitted). The agency must also provide a rational and reasonable basis for deviating from its established policy. [The] law does not permit an agency to grant to one person the right to do that which it denies another similarly situated. There may not be a rule for Monday, another for Tuesday, a rule for" }, { "docid": "10449351", "title": "", "text": "and Corps regulations. North Carolina and RRBA also challenge the Corps’ decision to enter into the water supply reallocation contract on the following grounds: (1) the Corps’ finding of no significant impact was arbitrary and capricious; (2) the Corps failed to consider alternatives to the water supply contract; and, (3) the Corps acted in violation of law by becoming a partisan in a water dispute between Virginia and North Carolina. IV. STANDARD OF REVIEW The applicable review standard is found in the Administrative Procedure Act which provides in pertinent part: The reviewing court shall— (2) 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; (D) without observance of procedure required by law. 5 U.S.C.A. § 706(2)(A) & (D) (West 1977). Any interpretation of this standard must begin with the Supreme Court’s decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In Overton Park the Supreme Court made clear that the court’s obligation pursuant to this statute is twofold. The court must consider, first, whether the agency acted within the scope of its authority and, second, whether the actual choice made by the agency was arbitrary, capricious an abuse of discretion, or otherwise not in accordance with law. To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment. This standard of review is highly deferential and the agency decision is “entitled to a presumption of regularity.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. 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.” 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), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975), quoting Burlington Truck Lines, Inc. v. United States," }, { "docid": "18342080", "title": "", "text": "only the start: the standard for review must also be determined.” Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 413, 91 S.Ct. at 822. To determine the applicable standard of review, the Court turns again to the APA. Section 706 provides that a reviewing court máy “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) (1976). The Supreme Court has most recently elaborated upon the “arbitrary and capricious” standard in the following terms: Under the “arbitrary and capricious” standard the scope of review is a narrow one. 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.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, supra, at 416 [91 S.Ct. at 823-824.] The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 245-246, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 836, 89 L.Ed. 1206] (1945). Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 283-284, 95 S.Ct. 438, 440-441, 42 L.Ed.2d 447 (1974). In a similar vein, the Third Circuit similarly stated: Under the “arbitrary and capricious” standard, the district court sits neither as a fact finder nor as a judge of the weight of the evidence. The" }, { "docid": "20348920", "title": "", "text": "United States, 97 Fed.Cl. 262 (2011). A motion for judgment on the administrative record under Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”) differs from motions for summary judgment under RCFC 56, as the existence of genuine issues of material fact does not preclude judgment on the administrative record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1355-57 (Fed.Cir. 2005); Fort Carson Supp. Servs. v. United States, 71 Fed.Cl. 571, 585 (2006). Rather, a motion for judgment on the administrative record examines whether the administrative body, given all the disputed and undisputed facts appearing in the record, acted in a manner that complied with the legal standards governing the decision under review. See Fort Carson, 71 Fed.Cl. at 585; Greene v. United States, 65 Fed.Cl. 375, 382 (2005); Arch Chems., Inc. v. United States, 64 Fed.Cl. 380, 388 (2005). Factual findings are based on the evidence in the record, “as if [the Court] were conducting a trial on the record.” Bannum, 404 F.3d at 1357; see also Carahsoft Tech. Corp. v. United States, 86 Fed.Cl. 325, 337 (2009); Gulf Group, 61 Fed.Cl. at 350. Under the “arbitrary and capricious” standard, the Court considers “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” by the agency. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. Although “searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. The Court will instead look to see if an agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). The Court must determine whether “the" }, { "docid": "4411271", "title": "", "text": "the OTS had breached an agreement to settle the civil money penalties for $5,000 or, alternatively, that the OTS was estopped from asserting civil money penalties in excess of $5,000. Second, the Rapps assert that the record does not justify second-tier penalties against individual family members. Finally, the Rapps claim that the OTS violated their constitutional due process rights. B. STANDARD OF REVIEW Judicial review of OTS action is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Under the APA we must “hold unlawful and set aside agency [adjudicatory] action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] ... (E) unsupported by substantial evidence.... ” 5 U.S.C. § 706(2); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977). Section 706 sets forth separate and distinct standards and 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" }, { "docid": "9390261", "title": "", "text": "it is willing to acquire the necessary equipment, unwillingness to acquire necessary equipment here implies unfitness. (D) When the only evidence of public demand or need for bulk service is the statements of supporting shippers, the shippers must at least make clear that they consider that they have a need for bulk service from Dennis. We discuss each of these points in turn. A In Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), there seemed “to be agreement that the findings and conclusions of the Commission [were] supported by substantial evidence.” But this did not resolve the question whether the ICC’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), since the “arbitrary and capricious” standard of section 706(2)(A) is distinct from the “substantial evidence” standard of Section 706(2)(E). Both standards are of .course part of the APA. Bowman Transportation summarized the law as follows: Under the “arbitrary and capricious” standard the scope of review is a narrow one. 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.. . . Although, this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1970)]. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 245, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned." }, { "docid": "19156967", "title": "", "text": "fact does not preclude judgment on the administrative record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1355-57 (Fed.Cir.2005); Fort Carson Supp. Servs. v. United States, 71 Fed.Cl. 571, 585 (2006). Rather, a motion for judgment on the administrative record examines whether the administrative body, given all the disputed and undisputed facts appearing in the record, acted in a manner that complied with the legal standards governing the decision under review. See Fort Carson, 71 Fed.Cl. at 585; Greene v. United States, 65 Fed.Cl. 375, 382 (2005); Arch Chems., Inc. v. United States, 64 Fed.Cl. 380, 388 (2005). Factual findings are based on the evidence in the record, “as if [the Court] were conducting a trial on the record.” Bannum, 404 F.3d at 1357; see also Carahsoft Tech. Corp. v. United States, 86 Fed.Cl. 325, 337 (2009); Gulf Group, 61 Fed.Cl. at 350. Under the “arbitrary and capricious” standard, the Court considers “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” by the agency. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. Although “searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. The Court will instead look to see if an agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). The Court must determine whether “the procurement official’s decision lacked a rational basis,” Domenico Garufi, 238 F.3d at 1332 (adopting APA standards developed by the D.C. Circuit); see also Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 204 (D.C.Cir.1984). The applicable test is “whether ‘the contracting-agency provided a coherent and reasonable explanation" }, { "docid": "17272596", "title": "", "text": "1598, 84 L.Ed.2d 643 (1985). A motion under RCFC 56.1 for judgment on the administrative record differs from a motion for summary judgment under RCFC 56, as the existence of genuine issues of material fact does not preclude judgment under the former. Compare RCFC 56.1(a) (incorporating only the standards of RCFC 56(a)-(b)) with RCFC 56(c) (containing the disputed facts standard); see Bannum, Inc. v. United States, 404 F.3d 1346, 1355-56 (Fed.Cir.2005). A motion for judgment on the administrative record examines whether the administrative body, given all the disputed and undisputed facts appearing in the record, acted arbitrarily, capriciously, or contrary to law. See Arch Chems., Inc. v. United States, 64 Fed.Cl. 380, 388 (2005); Gulf Group, Inc., 61 Fed.Cl. at 350; Tech Sys., Inc. v. United States, 50 Fed.Cl. 216, 222 (2001). If arbitrary action is found as a matter of law, the Court will then decide the factual question of whether the action was prejudicial to the bid protester. See Bannum, 404 F.3d at 1351-54. Under the “arbitrary and capricious” or “abuse of discretion” standard of review, 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. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Overton Park, 401 U.S. at 416, 91 S.Ct. 814 (citations omitted). The Court will look to see if an agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp., Inc. v. Ark.-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). In other words, the reviewing court must determine whether “the procurement official’s decision lacked a rational" } ]

[ { "docid": "22289885", "title": "", "text": "his wife. He also admitted that he never provided a written personal statement to Basi, as he had earlier claimed. V. Second IJ Decision In her second decision, the IJ found Fernandes not credible and denied his application for asylum, withholding of removal, and CAT relief. First, the IJ held that she had jurisdiction to consider the government’s motion to reopen because the BIA’s remand order was not limited. The IJ found that granting the motion to reopen was warranted because the new evidence was relevant to the case. She also held that Fernandes had knowingly filed a frivolous asylum application in violation of 8 U.S.C. § 1158(d)(6). VI. Second BIA Decision The BIA affirmed the IJ’s second decision and dismissed Fernandes’s appeal. It found that the IJ had properly considered the government’s motion to reopen because the remand was not limited in scope and that the IJ had correctly determined that Fernandes was not credible and that he had filed a frivolous application. Fer-nandes filed a timely petition for review. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 8 U.S.C. § 1252 to review final removal orders issued by the BIA. We must uphold the BIA’s factual determinations if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4) (repealed 1996)). To reverse a factual determination, we must find that the evidence compels a contrary conclusion. Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002). Legal conclusions are reviewed de novo. Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir.2004). DISCUSSION Fernandes argues that the IJ’s consideration of the motion to reopen violated the BIA’s remand order. He also asserts that the BIA’s adverse credibility determination was not supported by substantial evidence and that the BIA erred in finding that Fernandes filed a frivolous application. We affirm the BIA on all counts. A. Scope of the Remand Order After determining that Fernandes had established past persecution, the BIA remanded the record to the" } ]

[ { "docid": "22200969", "title": "", "text": "PER CURIAM. We consider here whether a Court of Appeals possesses jurisdiction to review the decision of an immigration judge to deny a motion for a continuance filed during an immigration proceeding. Petitioner Rasaq Opyemi Sanusi, a native and citizen of Nigeria, seeks review of a February 26, 2001 order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of a decision by Immigration Judge (“IJ”) Donn Livingston denying Sanusi’s request for relief under the United Nations Convention Against Torture (“CAT”). See In re Sanusi, Order and Oral Decision of the Immigration Judge, File No. [ AXX XXX XXX ] (Jamaica, NY, Mar. 16, 2000). Sanusi argues that the IJ made two errors, each of which was affirmed by the BIA. First, Sanusi argues that the IJ should have granted him relief under the CAT, stating that the IJ applied the wrong legal standard and incorrectly found Sanusi’s testimony not to be credible. Second, Sanusi contends that the IJ erred in denying Sanusi’s motion for a continuance, which he requested so that he might acquire additional medical evidence in support of his CAT claim. In addition, Sanusi argues that the BIA erred when it refused to remand Sanusi’s case to the IJ for further proceedings to consider newly available evidence. We conclude that Sanusi’s arguments are without merit and, accordingly, we deny the petition for review. Background Sanusi originally applied for asylum and for withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Naturalization Act of 1952 (“INA”), as amended, 8 U.S.C. §§ 1158(a), 1231(b)(3). The IJ denied Sanusi’s application for asylum and for withholding of removal under the INA on March 23, 1998 and ordered Sanusi removed. Sanusi declined to appeal, thereby waiving any claims of error he might have had before this Court. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right[.]”); Foster v. INS, 376 F.3d 75, 77 (2d Cir.2004) (“[Fjailure to exhaust [these remedies] constitutes a clear jurisdictional bar.” (internal" }, { "docid": "23127617", "title": "", "text": "v. BIA 437 F.3d 270, 275 (2d Cir.2006) (internal quotation marks omitted). But failure to consider material evidence in the record is ground for remand. Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d Cir.2004). Such a failure occurred here. And the fact that “a hypothetical adjudicator, applying the law correctly, might also have denied” a CAT claim is “no[ ] excuse[ ]” for a failure to consider the evidence. Jin Shui Qiu, 329 F.3d at 149; see generally Poradisova, 420 F.3d at 77 (‘We ... require some indication that the IJ considered material evidence supporting a petitioner’s claim.”). In the interest of judicial economy, we also note that the agency’s failure to mention the material evidence in support of Petitioner’s CAT claim may well indicate the application of an inappropriately stringent standard on the part of the agency. It appears that the BIA and IJ required Petitioner to show the government’s affirmative consent to torture. This would constitute legal error and would by itself be grounds for remand — for a showing of willful blindness suffices to support a CAT claim. See Rafiq v. Gonzales, 468 F.3d 165, 166 (2d Cir.2006) (per curiam) (remanding a CAT claim to the BIA because the IJ “failed to acknowledge [Khouzam ] as controlling authority” and did not appear to apply the correct legal standard). D. Claims Relating to Petitioner’s Lack of Counsel at Her Removal Hearing Delgado has argued on appeal that the IJ erred by not informing her of her right to seek a continuance when her counsel failed to appear at her merits hearing. Delgado characterizes the IJ’s inaction as an abuse of discretion and a violation of due process. She also claims that the BIA should have remanded her case to the IJ on the basis of ineffective assistance of counsel. Since we now remand all of Petitioner’s claims to the BIA, with orders to remand the proceedings to the IJ for further factfinding, these alleged errors have been rendered harmless. III. CONCLUSION Having considered all of the arguments that Petitioner has raised, we Grant the petition for review" }, { "docid": "4282422", "title": "", "text": "the parties). Ahmed’s argument is without merit. Under INA § 240(b)(4)(B), an alien must be afforded a “reasonable” opportunity to present evidence on his own behalf. 8 U.S.C. § 1229a(b)(4)(B); see also Augustin v. Sava, 735 F.2d 32, 36 (2d Cir.1984) (“[A]n alien who seeks entry is entitled to a hearing before an Immigration Judge on the validity of his application. At the hearing the alien has the right to present evidence, to cross-examine witnesses, and to examine and object to evidence offered against him.”). Decisions regarding the appropriate conduct of a hearing and the submission of evidence are committed to the discretion of the immigration judge. See 8 C.F.R. § 1240.1(c). At the time Ahmed’s case was remanded by the BIA to the IJ, the IJ had already held two evidentiary hearings — one in June 2000, the other in August 2004— regarding Ahmed’s eligibility for the waivers at issue. Moreover, as part of the Stipulation and Order, Ahmed had affirmatively stipulated that the remand did not include “any requirement to conduct a further evidentiary hearing” and that the decision on his § 237(a)(1)(H) waiver could be made “after consideration of the evidence in the record.” Despite these stipulations, the IJ, as a matter of grace, permitted Ahmed to offer over 150 pages of additional documentary evidence, which the IJ considered in its decision and which the BIA reviewed de novo on appeal. Accordingly, Ahmed was not denied a reasonable opportunity to present evidence in the course of his immigration proceedings, and the BIA did not abuse its discretion in reaching the same conclusion. CONCLUSION We have considered all of Ahmed’s arguments and find them to be without merit. The petition for review is DISMISSED for want of jurisdiction to the extent that it challenges the denial of a discretionary waiver under INA § 237(a)(1)(H), and petitioner’s remaining claims regarding equitable estoppel and the opportunity to present evidence are DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED. . Petitioner's name alternately appears as Gamal Mohamed Ahmed Ahmed." }, { "docid": "2400629", "title": "", "text": "2008). Because the BIA did not rule on the IJ’s adverse credibility findings, petitioners’ credibility is not before this court. See Ibrahimi v. Holder, 566 F.3d 758, 762 n. 3 (8th Cir.2009). Whether Mungiki defectors constitute a “particular social group” is a question of law, reviewed de novo but with Chevron deference to the BIA’s reasonable interpretation. Ngengwe v. Mukasey, 543 F.3d 1029, 1033 (8th Cir.2008). Whether the Kenyan government is unwilling or unable to control the Mungiki is a question of fact. Id. at 1035. This court “treat[s] administrative findings of fact as ‘conclusive unless any reasonable adjudicator would be - compelled to conclude to the contrary.’ ” Lopez-Amador, 649 F.3d at 884-85 (quoting 8 U.S.C. § 1252(b)(4)(B)). Finally, we review the denial of a motion to remand for abuse of discretion. Clifton v. Holder, 598 F.3d 486, 490 (8th Cir.2010). “The BIA will not remand to the IJ to consider additional evidence proffered on appeal if the evidence was available and could have been presented at an earlier hearing.” Berte v. Ashcroft, 396 F.3d 993, 997 (8th Cir.2005). “Even if the evidence was previously unavailable, the BIA will remand only if the evidence is ‘of such a nature that the [BIA] is satisfied that if proceedings before the [IJ] were reopened, with all the attendant delays, the new evidence would likely change the result in the case.’ ” Id. (second alteration in original) (citation and internal quotation marks omitted). As we explain below, we hold that Mungiki defectors constitute a “particular social group” and that the record compels the conclusion that the Kenyan government is unwilling or unable to control the Mungiki. Thus, the BIA erred in denying petitioners’ claims on the merits. The only remaining grounds for denying petitioners’ claims is the IJ’s adverse credibility findings, which the BIA did not consider. We conclude the BIA abused its discretion in denying petitioners’ motion to remand to allow Wanjiku to testify in person because Wanjiku’s testimony, if credited, is likely to change the IJ’s credibility findings and thus change the outcome of this case. A. Mungiki Defectors Are" }, { "docid": "22610326", "title": "", "text": "the BIA did not address Attia’s claims because they were not properly before it. According to the government, the petitioners’ notice of appeal to the BIA addressed only Rizk’s claims. Because Attia’s claims were not exhausted, the government argues, we should dismiss her appeal for lack of jurisdiction. The record does not support this assertion. The petitioners’ notice of appeal and supporting brief to the BIA lists the Alien Identification Number for each of the family members, repeatedly refers to the family collectively as “respondents” or “appellants,” and refers specifically to the “female” appellant or respondent where appropriate. Accordingly, we conclude that Attia adequately appealed the IJ’s decision and that we have jurisdiction over her petition. Because the BIA’s decision did not resolve Attia’s appeal (and, consequently, did not resolve the cases of Joseph and John, who are eligible for derivative relief through Attia), we must grant her petition and remand her case (along with her children’s) to the BIA for decision. “[W]here the BIA has not made a finding on an essential asylum issue, the proper course of action for a court of appeals is to remand the issue to the BIA for decision.” Chen v. Ashcroft, 362 F.3d 611, 621 (9th Cir.2004) (citing INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002)). We therefore do not address Attia’s additional challenges to the IJ’s decision. Ill Rizk claims that the IJ’s adverse credibility determination was not supported by substantial evidence. Where, as here, the BIA expressly adopts the IJ’s decision, we review the IJ’s findings as if they were the BIA’s. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010). Because credibility determinations are findings of fact by the IJ, they “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). “To reverse [such a] finding we must find that the evidence not only supports [a contrary] conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We must uphold the IJ’s adverse credibility determination" }, { "docid": "22222979", "title": "", "text": "remand because it concluded that the ex-pungement did not present material new evidence that would have changed the result at the hearing below. The BIA’s rationale was simply that “an alien whose conviction was expunged pursuant to California Penal Code § 1203.4 has been ‘convicted’ for immigration purposes.” The BIA also adopted the IJ’s decision as to Petitioner’s ineligibility for adjustment, and thus dismissed his appeal. Petitioner filed this review petition on June 17, 2005, seeking to overturn the BIA’s May 18, 2005 decision to deny a remand. At the same time, he did not abandon his efforts at the BIA itself, as on June 20, 2005, he moved for reconsideration of the remand denial. This motion was denied, however, as the BIA cited an alternate ground for the denial of remand: that the expungement was irrelevant because Petitioner had already received FFOA treatment in the form of his pre-plea diversion for the 1996 charge, and thus could not receive FFOA treatment a second time for the 1999 conviction. Petitioner has not separately appealed this decision, though the bulk of his briefing is devoted to attacking its rationale. III. JURISDICTION The Immigration and Nationality Act (“INA”) ordinarily divests the courts of appeals of jurisdiction to review any “final order of removal” against an alien who is removable for having committed a controlled substance offense. 8 U.S.C. § 1252(a)(2)(C). The court retains jurisdiction, however, to consider whether the jurisdictional bar applies. Lujan-Armendariz v. INS, 222 F.3d 728, 734 (9th Cir.2000). Moreover, the Act states that “[n]othing [herein] ... which limits or eliminates judicial review shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Here, Petitioner raises a colorable question of law: whether his 1999 controlled substance conviction precludes him from seeking an adjustment of status even though it was expunged pursuant to section 1203.4 of the California Penal Code. In such cases, the jurisdictional inquiry collapses into the merits, and so we may determine whether the expungement means Petitioner has not been “convicted” of a controlled substance" }, { "docid": "22289888", "title": "", "text": "16 I. & N. Dec. 600, 601 (BIA 1978); see also Matter of M—D—, 24 I. & N. Dec. 138, 141 (2007) (“[W]e have historically treated a remand as effective for consideration of all matters unless it is specifically limited to a stated purpose.”); see also id. at 142 (“In other words, the [IJ] has authority to consider new evidence [on remand] if it would support a motion to reopen the proceedings.”). Here, the BIA remanded to allow the government to rebut the presumption of a well-founded fear of future persecution. However, as the Board noted in its subsequent decision, the remand order did not limit or qualify the IJ’s ability to consider new evidence or motions. It simply directed the IJ to conduct further proceedings “consistent with” the Board’s opinion. In Matter of M—D—, the Board remanded with directions for the IJ to conduct background checks. Although the pmpose of the remand was to determine whether the requisite background checks had been completed, the scope of the remand was not restricted and did not prohibit the IJ from considering new evidence. 24 I. & N. Dec. at 141. In fact, in Matter ofM—D—, the BIA held that the IJ erred in declining to consider the new evidence. Id. at 141-42. The Third Circuit has articulated a similar rule, holding that an IJ’s jurisdiction is only narrowed when the Board expressly retains jurisdiction and qualifies or limits the remand to a specific purpose. See Johnson v. Ashcroft, 286 F.3d 696, 701-03 (3d Cir.2002) (remand for consideration of a CAT claim did not limit the IJ’s jurisdiction to consider other forms of relief). As a matter of first impression in our circuit we agree with the reasoning of the Third Circuit, and hold that the IJ’s jurisdiction on remand from the BIA is limited only when the BIA expressly retains jurisdiction and qualifies or limits the scope of the remand to a specific purpose. An articulated purpose for the remand, without any express limit on scope, is not sufficient to limit the remand such that it forecloses consideration of other new" }, { "docid": "22704921", "title": "", "text": "INC, that he experienced past persecution based upon any of the protected bases, nor that he would be subject to future persecution based upon any of the protected bases. Further, Applicant has failed to meet his burden of proving by a preponderance of the evidence that he did not participate in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. Petitioner appealed to the Board of Immigration Appeals (“BIA”), and filed a motion to remand and reopen his exclusion proceeding to consider additional evidence corroborating his membership in the INC. The Board affirmed the IJ in a brief order, holding that Petitioner had failed to establish either past persecution or a well-founded fear of persecution on account of one of the five grounds enumerated in section 101(a)(42) of the Immigration and Nationality Act. The BIA adopted the IJ’s decision, affirmed “based upon and for the reasons set forth therein,” and denied Petitioner’s motion to remand because of the IJ’s adverse credibility finding. The Board did not address the IJ’s finding with respect to Petitioner’s alleged persecution of others. This petition for review followed. We affirm in part, reverse in part, and remand. STANDARD OF REVIEW Where the BIA expressly adopts the IJ’s findings and reasoning, as it did in this case, we review the decision of the IJ as if it were that of the Board. Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.1995). The substantial evidence standard of review governs adverse credibility findings, Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th Cir.1999), and all other factual findings. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997); Prasad v. INS, 101 F.3d 614, 616-17 (9th Cir.1996).’ Under the substantial evidence standard, this Court must uphold the IJ’s findings and conclusions if they are supported by “reasonable, substantial and probative evidence in the record.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To prevail, Petitioner must demonstrate that no reasonable factfinder could conclude that he is ineligible for relief from removal. Fisher v." }, { "docid": "23344076", "title": "", "text": "of removal to the BIA. Petitioner did not initially appeal the IJ’s denial of his request to renew his “adjustment of status” application; however, after this court’s ruling in Zheng v. Gonzales, 422 F.3d 98 (3d Cir.2005), which invalidated the regulation on which the IJ had relied, petitioner filed a motion with the BIA to remand the proceedings to the IJ for reconsideration of his request to renew his “adjustment of status” application. The BIA issued a decision in which it dismissed the Attorney General’s appeal because it agreed with the IJ that petitioner is eligible for withholding of removal. In the same decision, the BIA also denied petitioner’s motion to remand on the “adjustment of status” issue. The BIA acknowledged that Zheng invalidated the authority upon which the IJ had relied. However, the BIA ruled that petitioner was nevertheless ineligible to renew his adjustment of status application “because he [did] not meet the renewal requirements under 8 C.F.R. § 1245.2(a).” A.R. at 11. Vakker petitions this court for review of the BIA’s denial of his motion to remand. II This court generally reviews motions to remand deportation proceedings, like motions to reopen or reconsider, for abuse of discretion. Korytnyuk v. Ashcroft, 396 F.3d 272, 279-83 (3d Cir.2005); Shardar v. Attorney General, 503 F.3d 308, 311-12 (3d Cir.2007). However, this court’s review of the legal standards that the BIA applied when it denied Vakker’s motion to remand is de novo: “questions of law, such as whether the BIA applied the correct legal standard in considering the motion to reopen and the underlying [legal] claim ... are [ ] reviewed de novo.” Fadiga v. Attorney General, 488 F.3d 142, 153-54 (3d Cir.2007). See also Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.2006). Ill Vakker asserts that, following Zheng, he is facially eligible to renew his adjustment of status application, and that the BIA’s decision denying his motion to remand on that issue was inadequate and denied him due process of the law. The Attorney General raises a jurisdictional challenge to Vakker’s petition, which we will address before reaching the merits" }, { "docid": "22451929", "title": "", "text": "that Mapouya had not shown that it was more likely than not that he would be persecuted on account of one of the five protected grounds if he returned to Congo. Finally, the IJ found that Ma-pouya did not present medical evidence to corroborate his claims that he was beaten for months, and therefore his claim under The Convention failed as well. Mapouya appealed to the BIA, -which affirmed the IJ’s ruling and added further comments on the IJ’s “changed country conditions” conclusion. Mapouya added a due process argument in his BIA appeal, citing the IJ’s refusal to hear Viong’s testimony first. He also submitted additional evidence in the form of Country Reports for Congo for 1997 and 2004. The BIA found no due process violation, reasoning that the IJ “conducted a full and fair hearing.” Consequently, the BIA dismissed Mapouya’s appeal in an order dated December 16, 2005. This appeal followed. II. JURISDICTION This Court has jurisdiction to review the final decision of the BIA pursuant to 8 U.S.C. § 1252(a)(1). III. LAW AND ANALYSIS A. Standard of Review Where the BIA adopts the IJ’s reasoning, the Court reviews the IJ’s decision directly to determine whether the decision of the BIA should be upheld on appeal. Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir.2005) (citing Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003)). In this case, the BIA summarily adopted the IJ’s decision while adding a comment on the IJ’s treatment of the rebuttable presumption/changed country conditions question. The BIA also made a finding on Mapouya’s due process claim. The Court therefore directly reviews the decision of the IJ while considering the additional comment made by the BIA. Id. Because the due process claim was not before the IJ, the Court directly reviews the BIA’s decision on that claim. Id. Furthermore, the Supreme Court recently held that when the IJ (and, subsequently, the BIA) does not make the proper inquiry and legal conclusions, supported by legal analysis and reasoning, the “proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”" }, { "docid": "22723295", "title": "", "text": "by the government, and that the BIA abused its discretion in failing to consider the documents. Petitioner’s argument fails, however, because no such motion was filed before the BIA. Rather, Ivanishvili simply appealed the IJ’s decision and attached the documents to her appeal. Ivanishvili cites no authority for the proposition that the BIA is required to consider new evidence in the absence of a motion to reopen, and petitioner’s appeal on this ground is without merit. CONCLUSION We have considered petitioner’s remaining arguments and find them all to be without merit. For the forgoing reasons, the petition for review is granted. We vacate the BIA’s summary affirmance of the IJ’s denial of petitioner’s application for withholding of removal and remand to the BIA with instructions to vacate that portion of the IJ’s decision and remand to the IJ for further proceedings consistent with this opinion. In all other respects, the IJ’s decision is affirmed. . Pursuant to the Homeland Security Act of 2002, Pub.L. No. 107-296 § 441, 116 Stat. 2135, 2193, on March 1, 2003, the INS was abolished and its functions transferred to the Department of Homeland Security. We refer to the INS throughout this opinion, however, to avoid confusion. . The government contends on appeal that 8 U.S.C. § 1158(a)(3) strips this Court of jurisdiction to review that determination. We need not address the jurisdictional issue. Our assumption of jurisdiction to consider first the merits is not barred where the jurisdictional constraints are imposed by statute, not the Constitution, and where the jurisdictional issues are complex and the substance of the claim is, as here, plainly without merit. See Marquez-Almanzar v. INS, 418 F.3d 210, 216 n. 7 (2d Cir.2005). Consideration of the merits is especially appropriate because neither party has addressed the complex question of whether the recent amendments to 8 U.S.C. § 1252 by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, impacts our jurisdiction in this case." }, { "docid": "11352863", "title": "", "text": "decided to sua sponte reopen the proceedings on June 4, 2008, remanded the record back to the IJ for further consideration of Guerrero’s de-portability under § 241 (a) (2) (A) (iii), eligibility for § 212(c) relief, and “any other relief for which he may currently qualify.” In doing so, the BIA explained that the evidence submitted with the motion was “undisputably probative (and potentially dispositive) of whether a ‘conviction’ ... exists to support [Guerrero’s] deportability as an alien convicted of an aggravated felony, and by extension to preclude him from being considered for 212(c) relief.” It further explained — mistakenly—that because Guerrero “has been a lawful permanent resident of the United States for over 22 years,” he might “be able to demonstrate eligibility for section 212(c).” At a hearing on remand on May 11, 2010 before a new IJ, INS challenged Guerrero’s eligibility for relief from removal, arguing that he was no longer a lawful permanent resident under 8 C.F.R. § 1001.1(p) , and that the BIA had im properly reopened proceedings in light of his 2002 deportation. Following further briefing on the issue, the IJ issued a decision on November 22, 2010, holding that the immigration court lacked jurisdiction to adjudicate Guerrero’s § 212(c) waiver application or any other application for relief due to the departure bar of 8 C.F.R. § 1003.23(b)(1), which limited its jurisdiction to adjudicate motions filed by aliens who had left the United States. The IJ ordered Guerrero’s deportation for the third time. C. The BIA’s Sua Sponte Reconsideration Guerrero appealed this decision to the BIA on December 20, 2010. Three days later, on December 23, 2010, INS filed a motion to vacate the June 4, 2008 sua sponte reopening order. On December 27, 2012, the BIA issued its decision—the subject of this appeal—determining that its June 4, 2008 order sua sponte reopening proceedings was issued in error. Citing “legal and factual errors in its prior decision to sua sponte reopen proceedings,” the BIA reconsidered the June 4, 2008 decision, and ultimately denied Guerrero’s March 17, 2008 motion to reconsider. Accordingly, the BIA granted INS’s" }, { "docid": "22813297", "title": "", "text": "for any successful asylum application or request for withholding of removal under INA § 241(b)(3), the IJ concluded that Petitioner’s claims on these two bases must necessarily fail. The IJ also denied Petitioner’s CAT claim, finding that the Petitioner failed to show that she was “more likely than not to be tortured” upon her return to Colombia by “someone from the government,” relying on Matter of S-V-, 22 I. & N. Dec. 1306 (BIA 2000). On May 15, 2007, the BIA upheld the IJ’s decision. The BIA acknowledged that the IJ had incorrectly cited INA § 208(b)(1)(B)(i), which actually states that a protected ground must constitute “at least one central reason” for the persecution alleged, rather than, as the IJ stated, “the central reason.” The BIA essentially found this error to be harmless in light of its agreement with the IJ’s finding that the events “d[id] not arise to persecution on account of a protected ground.” The BIA also found that Petitioner did not have a well-founded fear of persecution on account of a protected ground. Finally, the BIA summarily affirmed the IJ’s determination that Petitioner had not shown that it was more likely than not that she would be tortured upon her return to Colombia and thus affirmed the IJ’s denial of her CAT claim. The BIA then ordered Petitioner’s removal to Colombia. Petitioner timely filed a petition for review on June 4, 2007. II. JURISDICTION AND STANDARD OF REVIEW The BIA properly exercised jurisdiction over Petitioner’s appeal from the IJ’s decision pursuant to 8 C.F.R. § 1003.1(b). Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir.2006). We have jurisdiction to review the BIA’s decision under INA § 242(a). Because the BIA adopted some of the findings of the IJ and made additional findings, we will review the decisions of both the BIA and the IJ. Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 276 (3d Cir.2007). We review legal determinations by the BIA de novo. Escobar v. Gonzales, 417 F.3d 363, 365 (3d Cir.2005). Whether an applicant’s proffered “particular social group” is cognizable under INA § 10 1(a)(42)(A)" }, { "docid": "15363913", "title": "", "text": "presented to the BIA: the 2012 U.S. Department of State Country Report on Pakistan. Put simply, the BIA could not have, as petitioner argues, abused its discretion in overlooking details of the Country Report where the report was not even in the administrative record. Further, we reject petitioner’s request for us to take judicial notice of the information contained in the Country Report, as it was “neither introduced into the record nor included in support” of the motion to reopen. Hussain v. Holder, 576 F.3d 54, 58 (1st Cir.2009); see also 8 U.S.C. § 1252(b)(4)(A) (requiring court of appeals to decide petition “only on the administrative record on which the order of removal is based”). We likewise do not consider petitioner’s argument, also presented for the first time to this court, that the BIA should have considered sua sponte whether the allegations of persecution by the Taliban were in fact government-sponsored. We have consistently held that “arguments not raised before the BIA are waived due to a failure to exhaust administrative remedies.” Molina De Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir.2007). Petitioner cannot rescue his motion to reopen by introducing new evidence and new arguments for the first time before this court. The petition for review is denied as to those arguments presented to the agency. It is otherwise dismissed for lack of jurisdiction. . Inconsistencies in Shah's testimony had led to an adverse credibility finding in an earlier set of hearings. Shah’s first merits hearing before an IJ was in August 2004, and the IJ found him not to be credible. When the BIA reviewed that decision in 2006, it adopted the IJ's conclusion but did not specifically discuss whether the record supported the IJ’s adverse credibility finding. Shah v. Att’y Gen., 273 Fed.Appx. 176, 178 (3d Cir.2008). Shah then petitioned for review in the Third Circuit, and the government filed a motion to remand to the BIA for further consideration of the credibility issue, which was granted. Id. On remand, the BIA concluded that the record did not support the IJ’s adverse credibility finding; however, the" }, { "docid": "22614524", "title": "", "text": "present new facts or evidence that may entitle the alien to relief from deportation.”). Recently, in Ramirez-Alejandre v. Ashcroft, 320 F.3d 858 (9th Cir.2003) (en banc), we reversed the BIA’s determination that it could not consider new evidence of extreme hardship on appeal, noting that the BIA had taken a “schizophrenic” approach, sometimes considering new evidence, sometimes remanding to the IJ, and sometimes following Fedorenko, in concluding that it could not consider new evidence. Id. at 865-66. We also noted that, under applicable law at the time, a motion to reopen was the only formal mechanism for introducing new evidence after the BIA’s decision. Id. at 867. Given this limitation and the inconsistent approach taken by the BIA, Ordonez’s belief that BIA’s legal rulings precluded him from submitting additional evidence provides a reasonable explanation for not submitting the evidence earlier. Thus, the BIA’s alternative ruling that Ordonez’s evidence did not warrant consideration was an abuse of discretion violative of his due process rights. CONCLUSION Based on the foregoing, we hold that the IJ’s oral notice to Ordonez of the consequences of failing to voluntarily depart was insufficient as a matter of law and that the BIA erred in refusing to consider the additional evidence Ordonez offered to support his motion to reopen. The petition for review is GRANTED, the decision of the BIA is REVERSED, and the cause REMANDED for further proceedings consistent with this opinion. . Because deportation proceedings were commenced against Petitioner prior to April 1, 1997, and the final order of deportation was entered after October 30, 1996, the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) apply to his case. Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000). Therefore, we have jurisdiction over his petition under 8 U.S.C. § 1105a, as amended by IIRI-RA § 309(c)(4). Id.; see also Pedro-Mateo v. INS, 224 F.3d 1147, 1149 (9th Cir.2000). . Because Ordonez challenges the notice as inadequate, Respondent's reliance on Shaar v. INS, 141 F.3d 953 (9th Cir.1998), is misplaced. In that case, it was undisputed that the aliens received" }, { "docid": "22723294", "title": "", "text": "with the consent or acquiescence of a public official” for specified purposes such as punishment, intimidation, discrimination, or obtaining information). V Other Issues Ivanishvili finally contends that the IJ failed to consider the documentary evidence she submitted and that the BIA similarly abused its discretion in failing to consider the additional documentary evidence she appended to her appeal. We find these claims to be wholly without merit. The record provides no basis for peti tioner’s first contention; indeed, the IJ’s oral decision acknowledged that Ivanishvili submitted documentary evidence that substantiated her testimony. • There is also no authority supporting petitioner’s contention that an IJ errs unless he specifically discusses, evaluates, and accepts or rejects each piece of documentary evidence submitted. See Guan Shan Liao, 293 F.3d at 68. As for petitioner’s second contention, when Ivanishvili filed her appeal with the BIA, she submitted several news reports and articles from NGOs that were not included in the record before the IJ. She contends that she made a motion to have these articles considered which was unopposed by the government, and that the BIA abused its discretion in failing to consider the documents. Petitioner’s argument fails, however, because no such motion was filed before the BIA. Rather, Ivanishvili simply appealed the IJ’s decision and attached the documents to her appeal. Ivanishvili cites no authority for the proposition that the BIA is required to consider new evidence in the absence of a motion to reopen, and petitioner’s appeal on this ground is without merit. CONCLUSION We have considered petitioner’s remaining arguments and find them all to be without merit. For the forgoing reasons, the petition for review is granted. We vacate the BIA’s summary affirmance of the IJ’s denial of petitioner’s application for withholding of removal and remand to the BIA with instructions to vacate that portion of the IJ’s decision and remand to the IJ for further proceedings consistent with this opinion. In all other respects, the IJ’s decision is affirmed. . Pursuant to the Homeland Security Act of 2002, Pub.L. No. 107-296 § 441, 116 Stat. 2135, 2193, on March 1," }, { "docid": "6935182", "title": "", "text": "of violence because the statute could be violated through the use of de minimis force and the government had failed to prove that Flores-Lopez had used more than de minimis force in committing the offense. DHS requested that the case be postponed so that it could respond to Flores-Lopez’s motion in writing and so that it could further prepare. The IJ denied the motion for a continuance and proceeded to consider removability. The IJ concluded that DHS had failed to sustain its burden of proving by clear and convincing evidence that Flores-Lopez had been convicted of a crime of violence and terminated the removal proceedings. DHS filed a timely appeal to the BIA, arguing both that CPC § 69 was a crime of violence and that the IJ had erred by refusing to grant DHS a continuance to file a written response to petitioner’s motion to terminate. DHS also contended that Flores-Lopez was removable on two additional grounds and requested that the BIA remand the matter to the IJ so that DHS could lodge an additional charge against Flores-Lopez. The BIA remanded the proceedings to the IJ to allow DHS to lodge the additional charge. However, on Flores-Lopez’s motion for reconsideration of the remand order, the BIA vacated its decision. Instead, it sustained DHS’s appeal of the IJ’s decision and held that a conviction under CPC § 69 qualifies categorically as a crime of violence. On that basis, the BIA remanded the proceedings to the IJ to enter a new decision. On September 11, 2008, on remand from the BIA, the IJ entered an order of removal against Flores-Lopez. Flores-Lopez appealed, arguing again that CPC § 69 is not a categorical a crime of violence, and the BIA summarily dismissed the appeal. This petition for review followed. II “Whether an offense is an aggravated felony under 8 U.S.C. § 1101(a) is a legal question reviewed de novo.” Estrada-Rodriguez v. Mukasey, 512 F.3d 517, 519 (9th Cir.2007) (internal quotation omitted). We review only the BIA’s decision, except to the extent that it expressly adopts the IJ’s opinion. See Garrovillas v. INS," }, { "docid": "22289889", "title": "", "text": "prohibit the IJ from considering new evidence. 24 I. & N. Dec. at 141. In fact, in Matter ofM—D—, the BIA held that the IJ erred in declining to consider the new evidence. Id. at 141-42. The Third Circuit has articulated a similar rule, holding that an IJ’s jurisdiction is only narrowed when the Board expressly retains jurisdiction and qualifies or limits the remand to a specific purpose. See Johnson v. Ashcroft, 286 F.3d 696, 701-03 (3d Cir.2002) (remand for consideration of a CAT claim did not limit the IJ’s jurisdiction to consider other forms of relief). As a matter of first impression in our circuit we agree with the reasoning of the Third Circuit, and hold that the IJ’s jurisdiction on remand from the BIA is limited only when the BIA expressly retains jurisdiction and qualifies or limits the scope of the remand to a specific purpose. An articulated purpose for the remand, without any express limit on scope, is not sufficient to limit the remand such that it forecloses consideration of other new claims or motions that the IJ deems appropriate or that are presented in accordance with relevant regulations. The BIA is free to impose a different rule, but in the absence of such a rule we will construe a BIA remand to an IJ in the manner just described. In this case, the BIA did not retain jurisdiction and did not expressly limit the scope of the remand. Accordingly, we affirm the BIA’s holding that the IJ properly considered the motion to reopen on remand. B. Adverse Credibility Fernandes next argues that the IJ’s adverse credibility determination is not supported by substantial evidence. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Specifically, he contends that Basi was not a credible witness and that Fernandes did not misrepresent facts about himself. Fernandes concedes that Basi’s testimony was consistent with his plea agreement and judgment. He suggests, however, that Basi was biased because he had an incentive to cooperate with the government in order to receive a light sentence. But, as the IJ reasoned, the fact" }, { "docid": "22090220", "title": "", "text": "those articulated by the IJ. See id. at 1040. In such a case, we review the IJ’s decision as if it were the decision of the BIA. See id. at 1040-41. And, we review legal questions addressed by the IJ de novo. See Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir.2005). IV. ANALYSIS Petitioners first contend that the IJ erred by applying the wrong legal standard in requiring Petitioners to show that the hardship suffered by their citizen-children would be “unconscionable” — a standard expressly rejected in the BIA’s prec-edential opinions, and by considering only the hardship currently suffered by the children due to their medical conditions without considering the hardship the children would suffer in the event that their parents were removed. They contend that the IJ’s opinion should be vacated and remanded for this reason. Petitioners also contend that this Court should grant the petition, vacate the IJ’s opinion, and remand to the BIA on the separate ground that the IJ’s decision is indiscernible. The government moved to dismiss this case for want of jurisdiction, but a motions panel of this Court denied that motion without prejudice to the argument being renewed before the merits panel. Thus, the government once again argues that we lack jurisdiction over this petition on the ground that Petitioners seek review of a discretionary decision. The government further argues that we lack jurisdiction because Petitioners failed to exhaust their legal challenges with the BIA. We first consider the jurisdictional questions, then address Petitioners’ legal challenges on the merits. A. Jurisdiction 1. Exhaustion As a threshold matter, the government argues that even if we have jurisdiction as a general matter to review a petitioner’s challenge based upon the IJ’s legal errors, we nevertheless lack jurisdiction in this case because Petitioners failed to exhaust their legal challenges before the BIA. The government of course is correct that we can consider Petitioners’ challenges only if those issues were raised before the BIA. See Kaganovich v. Gonzales, 470 F.3d 894, 896-97 (9th Cir.2006). That is, we have jurisdiction to review a final order of removal and" }, { "docid": "22289887", "title": "", "text": "IJ “to allow the DHS an opportunity to establish that since the time the persecution occurred condi tions in the respondent’s country have changed[.]” The order instructed that the record be “remanded for further proceedings consistent with the foregoing opinion.” Fernandes claims that the IJ’s consideration of the motion to reopen on remand was improper because the remand order “clearly and expressly required that the proceedings resulting from the order should be consistent with the BIA’ [sic] opinion” and that “[r]e-assessing once again [Fernandes’s] credibility was not consistent with the BIA’s order to allow DHS to rebut the presumption of future harm.” We disagree. In Matter of Patel, the BIA established the standard for the scope of remand orders, holding that: unless the Board qualifies or limits the remand for a specific purpose, the remand is effective for the stated purpose and for consideration of any and all matters which the Service officer deems appropriate in the exercise of his administrative discretion or which are brought to his attention in compliance with the appropriate regulations. 16 I. & N. Dec. 600, 601 (BIA 1978); see also Matter of M—D—, 24 I. & N. Dec. 138, 141 (2007) (“[W]e have historically treated a remand as effective for consideration of all matters unless it is specifically limited to a stated purpose.”); see also id. at 142 (“In other words, the [IJ] has authority to consider new evidence [on remand] if it would support a motion to reopen the proceedings.”). Here, the BIA remanded to allow the government to rebut the presumption of a well-founded fear of future persecution. However, as the Board noted in its subsequent decision, the remand order did not limit or qualify the IJ’s ability to consider new evidence or motions. It simply directed the IJ to conduct further proceedings “consistent with” the Board’s opinion. In Matter of M—D—, the Board remanded with directions for the IJ to conduct background checks. Although the pmpose of the remand was to determine whether the requisite background checks had been completed, the scope of the remand was not restricted and did not" } ]

[ { "docid": "7228967", "title": "", "text": "therefore conclude that the Fourteenth Amendment does not “incorporate” the Second Amendment’s right “to keep and bear Arms.” And I consequently dissent. I The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Two years ago, in District of Columbia v. Heller, 554 U. S. 570 (2008), the Court rejected the pre-existing judicial consensus that the Second Amendment was primarily concerned with the need to maintain a “well regulated Militia.” See id., at 638, and n. 2 (Stevens, J., dissenting); id., at 672-679. United States v. Miller, 307 U. S. 174, 178 (1939). Although the Court acknowledged that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right. .. was codified in a written Constitution,” the Court asserted that “individual self-defense . . . was the central component of the right itself.” Heller, 554 U. S., at 599 (some emphasis added). The Court went on to hold that the Second Amendment restricted Congress’ power to regulate handguns used for self-defense, and the Court found unconstitutional the District of Columbia’s ban on the possession of handguns in the home. Id., at 635. The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history. Since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed. See, e. g., Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, 56 UCLA L. Rev. 1295 (2009); Finkelman, It Really Was About a Well Regulated Militia, 59 Syracuse L. Rev. 267 (2008) ; P. Charles, The Second Amendment: The Intent and Its Interpretation by the States and the" } ]

[ { "docid": "12792223", "title": "", "text": "issue. But the scope of the Second Amendment is broad with regard to the kinds of arms that fall within its protection, “extending], prima facie, to all instruments that constitute bearable arms.” District of Columbia v. Heller, 554 U.S. 570, 582, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Of course, like other constitutionally protected rights, “the right secured by the Second Amendment is not unlimited.” Id. at 626, 128 S.Ct. 2783. Of particular importance here are the historical limitations that apply to the types of arms a law-abiding citizen may bear. In that regard, the Second Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Id. at 625, 128 S.Ct. 2783. By contrast, “the carrying of ‘dangerous and unusual weapons’ ” has been prohibited as a matter of “historical tradition.” Id. at 627, 128 S.Ct. 2783; see Caeta-no v. Massachusetts, — U.S. -, 136 S.Ct. 1027, 1028, 194 L.Ed.2d 99 (2016) (per curiam). If a weapon is one “typically possessed by law-abiding citizens for lawful purposes,” Heller, 554 U.S. at 625, 128 S.Ct. 2783, then it cannot also be a “dangerous and unusual” weapon in a constitutional sense, id. at 627, 128 S.Ct. 2783 (weapons “in common use at the time” did not include “dangerous and unusual weapons” (internal quotation marks omitted)). Indeed, Heller refers to “dangerous and unusual” conjunctively, so that even a “dangerous” weapon enjoys constitutional protection if it is widely held for lawful purposes. See Gaetano, 136 S.Ct. at 1031 (explaining that the dangerous and unusual test “is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual”) (Alito, J., concur ring). The significance of this rule is that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.” Id. Simply put, if the firearm in question is commonly possessed for lawful purposes, it falls within the protection of the Second Amendment. See Heller, 554 U.S. at 627, 128 S.Ct. 2783. My colleagues in the majority reject the foregoing “common use” analysis, characterizing it as a" }, { "docid": "9833339", "title": "", "text": "v. City and Cnty. of San Francisco, 746 F.3d 953, 970 (9th Cir.2014); DISH Network Corp., 653 F.3d at 776-77. 1. Test for Evaluating Second Amendment Claims The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST, amend. II. The Second Amendment protects an individual right to keep and bear arms, District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), that is fully applicable to the states and municipalities, McDonald v. City of Chicago, 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Second Amendment jurisprudence has changed substantially in the wake of the Supreme Court’s landmark decision in Heller. Heller struck down Washington D.C.’s handgun ban, finding that a complete ban on the “quintessential self-defense weapon” was historically unprecedented and too severely diminished the core Second Amendment right to survive constitutional scrutiny. 554 U.S. at 628-29, 128 S.Ct. 2783. In doing so, the Supreme Court confirmed that the Second Amendment has “the core lawful purpose of self-defense” and “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 630, 635, 128 S.Ct. 2783. But, the right to keep and bear arms is limited, and regulation of the right in keeping with the text and history of the Second Amendment is permissible. Id. at 626, 128 S.Ct. 2783. To evaluate post-Heller Second Amendment claims, the Ninth Circuit, consistent with the majority of our sister circuits, employs a two-prong test: (1) the court “asks whether the challenged law burdens conduct protected by the Second Amendment”; and (2) if so, what level of scrutiny should be applied. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.2013). II. Application to Measure C Turning to the facts of this case, we consider whether the district court erred in its application of the two-prong test established in Chovan, and we find there was no abuse of discretion. A. Burden on Conduct" }, { "docid": "15346812", "title": "", "text": "United States, 929 F.2d 240, 248 (6th Cir. 1991)). Furthermore, “each motion [will be considered by a court] separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003). III. ANALYSIS The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. These 27 words, so long untroubled by significant judicial scrutiny, have become newly fertile ground for interpretation following the Supreme Court’s 2008 decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In brief, Heller presented the question whether the Second Amendment confers an individual right to bear arms, or protects only the right to possess and carry a firearm in connection with militia service. After a lengthy examination of the historical record, the Heller majority held that the Constitution guarantees “the individual right to possess and carry weapons in case of confrontation,” but left the contours of that right largely undefined. Id. at 592, 128 S.Ct. 2783. Two years later, in McDonald v. City of Chicago, — U.S.-, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court held that the Second Amendment’s protections, whatever their bounds, apply fully to the States through the Fourteenth Amendment. This case requires the Court to answer two fundamental questions. The first asks whether the Second Amendment’s protections extend beyond the home, “where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 628, 128 S.Ct. 2783. This question was left unanswered in Heller, and has not been authoritatively addressed in the Fourth Circuit’s post-Heller decisions. Second, if the right to bear arms does extend beyond the home, the Court must decide whether Maryland’s requirement that a permit applicant demonstrate “good and substantial reason” to wear or carry a handgun passes constitutional muster. In undertaking these inquiries, the Court is guided by the Fourth Circuit’s recent opinion" }, { "docid": "19805946", "title": "", "text": "The Second Amendment to the Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller, the Supreme Court held that the Second Amendment confers “an individual right to keep and bear arms.” 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In McDonald v. City of Chicago, the Court added that the right to keep and bear arms is a “fundamental” constitutional right implicit in our scheme of ordered liberty and “deeply rooted in this Nation’s history and tradition.” - U.S. -, 130 S.Ct. 3020, 3036, 3042, 177 L.Ed.2d 894 (2010). In Heller, the Court ruled that the District of Columbia’s ban on the possession of handguns violated the Second Amendment. 554 U.S. at 635, 128 S.Ct. 2783. In the wake of Heller, the District of Columbia enacted a new gun law. As relevant here, D.C. bans possession of most semiautomatic rifles and requires registration of all guns possessed in the District of Columbia. See D.C.Code §§ 7-2501.01(3A)(A)(i), 7-2502.01-.10. In this case, we are called upon to assess those provisions of D.C.’s law under Heller. In so doing, we are of course aware of the longstanding problem of gun violence in the District of Columbia. In part for that reason, Heller has engendered substantial controversy. See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009); Richard A. Posner, In Defense of Looseness, The New Republic, Aug. 27, 2008, at 32. As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction. Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations. In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller. In Heller, the Supreme Court held that handguns — the vast majority of which today are semi-automatic — are constitutionally protected because they" }, { "docid": "3963179", "title": "", "text": "regulation violated their Second Amendment rights. The Second Amendment provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const, amend. II. The Supreme Court recently revolutionized Second Amendment jurisprudence in its landmark cases District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In Heller, the Court held for the first time that the Second Amendment “codified a pre-existing individual right to keep and bear arms,” GeorgiaCarry.Org I, 687 F.3d at 1259 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783) (internal quotation marks omitted), for the “core lawful purpose of self-defense,” Heller, 554 U.S. at 630, 128 S.Ct. 2783, at least in the home, see id. at 628, 128 S.Ct. 2783. The Court identified the content of the Second Amendment right by examining the original public meaning of the Amendment’s text and the understanding of the right to bear arms in the eighteenth and nineteenth centuries. Id. at 576-619, 128 S.Ct. 2783. But the Heller Court was careful to note that the Second Amendment right was “not unlimited.” Id. at 626, 128 S.Ct. 2783. In particular, the Court cautioned: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Id. at 626-27, 128 S.Ct. 2783. The Court identified this dictum as a non-exhaustive list of “presumptively lawful regulatory measures.” Id. at 627 n. 26, 128 S.Ct. 2783. Having set out the basic contours of the Second Amendment right to bear arms, the Court struck down a District of Columbia firearm law that “totally ban[ned] handgun possession in the home” and “require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock" }, { "docid": "19538270", "title": "", "text": "meaning applying only to intentional acts designed to cause harm. III Even assuming any doubt remains over the reading of \"use of physical force,\" the majority errs by reading the statute in a way that creates serious constitutional problems. The doctrine of constitutional avoidance \"command[s] courts, when faced with two plausible constructions of a statute-one constitutional and the other unconstitutional-to choose the constitutional reading.\" Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 213, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009) (THOMAS, J., concurring in judgment in part and dissenting in part) (internal quotation marks omitted). Section 922(g)(9) is already very broad. It imposes a lifetime ban on gun ownership for a single intentional nonconsensual touching of a family member. A mother who slaps her 18-year-old son for talking back to her-an intentional use of force-could lose her right to bear arms forever if she is cited by the police under a local ordinance. The majority seeks to expand that already broad rule to any reckless physical injury or nonconsensual touch. I would not extend the statute into that constitutionally problematic territory. The Second Amendment protects \"the right of the people to keep and bear Arms.\" In District of Columbia v. Heller, 554 U.S. 570, 624, 627, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Court held that the Amendment protects the right of all law-abiding citizens to keep and bear arms that are in common use for traditionally lawful purposes, including self-defense. And in McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Court held that the right to keep and bear arms is a fundamental right. See id., at 767-778, 130 S.Ct. 3020 ; id., at 806, 130 S.Ct. 3020 (THOMAS, J., concurring in part and concurring in judgment). The protections enumerated in the Second Amendment, no less than those enumerated in the First, are not absolute prohibitions against government regulation. Heller, 554 U.S., at 595, 626-627, 128 S.Ct. 2783. Traditionally, States have imposed narrow limitations on an individual's exercise of his right to keep and bear arms, such" }, { "docid": "22469056", "title": "", "text": "closer scrutiny of the interests and needs of each community, increasing the “reasonable fit” between the level of restriction and local conditions and decreasing the extent of the restriction that otherwise would apply, statewide, in places that do not require it. Similarly, localizing the decision allows more careful and accurate consideration of each individual’s license application. California entrusts the decision-making responsibility to local law enforcement officials because they are best positioned to evaluate the potential dangers that increasing or decreasing concealed carry would have in their communities. This structure allows for a nuanced assessment of the needs of each locality in processing applications for concealed carry. In short, California’s decision to place licensing in local hands is itself reasonable. In sum, even if the Second Amendment applied to concealed carry of firearms in public, the challenged laws and actions by Defendants survive heightened scrutiny. No constitutional violation occurred. CALLAHAN, Circuit Judge, dissenting, in which SILVERMAN, Circuit Judge, joins as to all parts except section IV, BEA, Circuit Judge, joins, and N.R. SMITH, Circuit Judge, joins as to all parts except section II.B: The Second Amendment is not a “second-class” constitutional guarantee. See McDonald v. City of Chicago, 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In the watershed case District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that the Second Amendment codified an existing individual right to keep and bear arms for self-defense. Two years later, the Court reaffirmed Heller in McDonald, 561 U.S. at 742, 130 S.Ct. 3020, and held that the individual right to bear arms for self-defense under the Second Amendment was fundamental and applied to the states. Although these opinions specifically address firearms in the home, any fair reading of Heller and McDonald compels the conclusion that the right to keep and bear arms extends beyond one’s front door. Like the rest of the Bill of Rights, this right is indisputably constitutional in stature and part of this country’s bedrock. Plaintiffs assert that the counties’ concealed weapons licensing schemes, in the context" }, { "docid": "2174940", "title": "", "text": "striking down legislation restricting the carrying of arms in public. Until the Supreme Court faces the issue, the state of the law affecting people in Illinois, Wisconsin, and Indiana is an important question worthy of en banc consideration to decide whether to affirm, reverse, or remand for further factual development. Without undue repetition of Judge Williams’ persuasive panel dissent, three points deserve emphasis at this en banc stage of the proceedings. First, extending the right to bear arms outside the home and into the public sphere presents issues very different from those involved in the home itself, which is all that the Supreme Court decided in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, - U.S. -, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). I will not repeat the debate in the panel opinions reviewing the historical and empirical evidence, for that debate was, in the majority’s view, essentially dicta. The core of the panel majority’s reasoning is that because there is a need for self-defense outside the home as well as in, Heller and McDonald should extend to public carrying of loaded firearms. Moore v. Madigan, 702 F.3d 933, 935-38 (7th Cir.2012). The logic has some appeal, but its simplicity overlooks qualitative differences between a private home and public streets and buildings that must be considered as we try to interpret Heller and McDonald. See Kachalsky. v. County of Westchester, 701 F.3d 81, 94 (2d Cir.2012). In so many public settings, carrying and using firearms present lethal risks to innocent bystanders. Yet when people go about their daily lives in public places, they have no choice about whether to consent to the dangers posed by firearms in public. We can all choose whether to visit homes where firearms are present. To illustrate the dangers posed by lawful use of firearms in public, consider a deadly confrontation on the streets of New York City in August 2012, when police confronted an armed man who had just shot and killed another man. The police officers were well trained" }, { "docid": "3174777", "title": "", "text": "appeal of a District Court judge’s decision may be taken to the Superior Court by way of an action in the nature of certio-rari pursuant to Mass. Gen. Laws ch. 249, § 4. Godfrey, 35 Mass.App.Ct. at 45-46, 616 N.E.2d 485. Constitutional Background Article 17 of the Massachusetts Declaration of Rights does not guarantee an individual’s right to possess and bear arms except when called to service in a duly constituted militia. See Commonwealth v. Davis, 369 Mass. 886, 887-888, 343 N.E.2d 847 (1976). The Second Amendment, on the other hand, “codifies a ‘right of the people’” as individuals “to possess and carry weapons in case of confrontation” in the defense of “hearth and home.” Dist. of Columbia v. Heller, 554 U.S. 570, 579, 592, 599, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (overturning a local ban on possession of an operable firearm in one’s own home for purposes of self-defense). The view taken by most federal courts post-Heller, that “[i]t is settled law ... that the Second Amendment applies only to limitations the federal government seeks to impose on [the right to bear arms],” see, e.g., Maloney v. Cuomo, 554 F.3d 56, 58 (2d Cir.2009) (per curiam), was repudiated by the Supreme Court in McDonald v. City of Chicago, III, 561 U.S. 742, 130 S.Ct. 3020, 3029, 3050, 177 L.Ed.2d 894 (2010). McDonald struck down a Chicago ordinance that effectively banned the possession of handguns by City residents. While rejecting the petitioners’ principal argument that the right to bear arms is guaranteed by the Fourteenth Amendment’s Privileges or Immunities Clause, the Court held that the Due Process Clause of the Fourteenth Amendment, by incorporation, makes the Second Amendment right binding on the States. In deciding that the right to bear arms is “fundamental to our scheme of ordered liberty” and is “deeply rooted in this Nation’s history and tradition,” Justice Alito found this to be especially true of handguns “because they are the ‘the most preferred firearm in the nation ... for protection of one’s home and family.’ ” Id. at 3036 (internal citations omitted). Legal Standards Summary judgment" }, { "docid": "18089159", "title": "", "text": "as even more serious offenses described as Grade A, eligible for Grade C treatment. This would be an absurd result. In a last-ditch effort, the Challengers argue that § 921(a)(20)(B)’s use of “punishable” merits application of the rule of lenity (that ambiguous criminal laws be construed in favor of defendants) or the constitutional avoidance doctrine (that ambiguous statutory language be construed to avoid serious constitutional doubts). Both of these principles require ambiguity in the statute. See Voisine v. United States, 579 U.S. -, 136 S.Ct. 2272, 2282 n.6, 195 L.Ed.2d 736 (2016). As there isn’t any here, they give no plausible defense. In sum, the Challengers’ argument that their convictions fall within § 921(a)(20)(B)’s exception to § 922(g)(1) has no traction. Their misdemeanor convictions were punishable by more than two years’ imprisonment. Hence they cannot seek refuge in § 921(a)(20)(B) and are subject to the bar of § 922(g)(1). III. The Challengers’ Constitutional Argument A. The Second Amendment The Challengers contend that, notwithstanding how we rule on their statutory argument, § 922(g)(1) is unconstitutional as applied to them. The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const, amend. II. In District of Columbia v. Heller, the Supreme Court invalidated a law that “totally ban[ned] handgun possession in the home” and “require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.” 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In so doing, the Court held the Second Amendment protects an individual’s right, to possess a firearm “unconnected with militia service.” Id. at 582, 128 S.Ct. 2783. At the “core” of the Second Amendment is the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 634-35, 128 S.Ct. 2783; Barton, 633 F.3d at 170-71; Marzzarella, 614 F.3d at 89. Two years after Heller, in McDonald v. City of Chicago, the Court held that the Fourteenth Amendment" }, { "docid": "1220868", "title": "", "text": "there does not appear to be any issue with Plaintiffs standing, we turn to whether the complaint sufficiently asserts an as-applied Second Amendment challenge to § 922(g)(1) under the Third Circuit’s decision in Binderup. Since no district court has yet to fully apply the Binderup court’s divided opinion, or the standards that a plurality of the court announced, we first endeavor to explain and interpret the court’s fractured decision. We then determine whether Plaintiffs complaint survives Defendants’ motion to dismiss. C. As-Applied Second Amendment Challenge The Second Amendment protects “the right of the people to keep and bear Arms[.]” U.S. Const, amend II. “The Supreme Court has not yet heard an as-applied Second Amendment challenge to a presumptively lawful ban on firearms possession.” Binderup, 836 F.3d at 359 (Hardiman, J., concurring). In Binderup, the. Third Circuit, applying the Supreme Court’s opinion in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), recognized that the Second Amendment, as incorporated against the States in McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), guarantees an individual’s right to possess a firearm “unconnected with militia service.” Binderup, 836 F.3d at 343 (quoting Heller, 554 U.S. at 582, 128 S.Ct. 2783). The court reiterated both of Heller’s holdings that the Second Amendment protects the right of “law-abiding, responsible citizens to use arms in defense of hearth and home,” and that such a right was “not unlimited.” Id. (quoting Heller, 554 U.S. at 634-35, 626, 128 S.Ct. 2783). The court restated Heller’s assurance that “longstanding prohibitions on the possession of firearms by felons” were considered “presumptively lawful regulatory measures” that historically limited the scope of the Second Amendment right. Id. (quoting Heller, 554 U.S. at 626-27, 128 S.Ct. 2783). After recognizing these principles, the court in Binderup clarified the framework for bringing as-applied constitutional challenges against firearms regulations, which the court had set out in two prior cases. Id. at 339 (citing United States v. Marzzarella, 614 F.3d 85, 93-94 (3d Cir. 2010) (adopting framework for evaluating facial and as-applied Second Amendment challenges" }, { "docid": "8516455", "title": "", "text": "§ 922(g)(9)) from possessing guns. Congress’s interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough to support the conclusion that 18 U.S.C. § 922(g)(5) does not impermissibly restrict Meza-Rodriguez’s Second Amendment right to bear arms. We thus Affirm the district court’s denial of his motion to dismiss. . Because this holding creates a split between our circuit and the Fourth, Fifth, and Eighth Circuits, supra at 668-69, this opinion has been circulated to all active judges pursuant to Circuit Rule 40(e). No judge voted to hear the case en banc. FLAUM, Circuit Judge, concurring in the judgment. I concur in the judgment. Unlike the majority, I have doubts that the Second Amendment grants undocumented immigrants the right to bear arms, as my read of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), does not suggest such an expansive interpretation. But because we need not make that determination in reaching our result in this matter, I would follow the Tenth Circuit’s prudential approach and reserve resolution of this challenging constitutional question for a case that compels addressing it. See United. States v. Huitron-Guizar, 678 F.3d 1164, 1169-70 (10th Cir.2012). In choosing to confront the issue, the majority roots its constitutional analysis in the common use of the phrase “the people” by the First, Second, and Fourth Amendments, and the Supreme Court’s suggestion in United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), that all persons, regardless of citizenship, who are part of our “national community” or who manifest a “sufficient connection with this country” are entitled to the rights that those amendments bestow. That view is not without appeal. Indeed, Heller describes the Second Amendment’s guarantee as an “ancient right,” codified in the constitution “to prevent the elimination of the militia,” but also “valued ... for self-defense and hunting.” 554 U.S. at 599, 128 S.Ct. 2783. Hence, it might be argued that all adult persons in this country share the same basic need to defend themselves." }, { "docid": "11298518", "title": "", "text": "effect is to require individuals to stop and think before being able to use a firearm. The State is required to show only that the regulation “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Fyock, 779 F.3d at 1000 (citation and quotation marks omitted). The State has established that there is a reasonable fit between important safety objectives and the application of the WPLs to Plaintiffs, in this case. The waiting period provides time not only for a background check, but also for a cooling-off period to deter violence resulting from impulsive purchases of firearms. The State has met its burden. CONCLUSION The judgment of the district court is reversed and the matter is remanded for the entry of judgment in favor of the State. Costs are awarded to the State. REVERSED and REMANDED. THOMAS, Chief Judge, concurring: I agree entirely with, and concur in, the majority opinion. I write separately, however, because the challenge to California’s tern-day waiting period can be resolved at step one of our Second Amendment jurisprudence. As a longstanding qualification on the commercial sale of arms under District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), a ten-day waiting period is presumptively lawful. Therefore, it is unnecessary to proceed to the second step intermediate scrutiny examination of the law. Heller and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), clarified our understanding of the protections and applicability of the Second Amendment, but left examinations of specific regulations to the future, noting that the right to keep and bear arms is “not unlimited.” Heller, 554 U.S. at 595, 626, 128 S.Ct. 2783. As the majority explains, we have adopted a two-step inquiry to analyze Second Amendment challenges under Heller. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Majority Op. 820-21. At step one, we ask “whether the challenged law burdens conduct protected by the Second Amendment,” and if it does, we proceed to step two and “apply an appropriate level of scrutiny.” Id. “To" }, { "docid": "20886863", "title": "", "text": "crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process. See McCulloch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 407, 4 L.Ed. 579 (1819). Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices. Given our understanding of existing limits, the judgment is AFFIRMED. MANION, Circuit Judge, dissenting. By prohibiting a class of weapons commonly used .throughout the country, Highland Park’s ordinance infringes upon the rights of its citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property. Both the ordinance and this court’s opinion upholding it are directly at odds with the central holdings of Heller and McDonald: that the Second Amendment protects a personal right to keep arms for lawful purposes, most notably for self-defense within the home. District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); McDonald v. City of Chicago, 561 U.S. 742, 767, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). For the following reasons, I respectfully dissent. Unlike public life where the cities and states have broad authority to regulate, the ultimate decision for what constitutes the most effective means of defending one’s home, family, and property resides in individual citizens and not in the government. The Heller and McDonald opinions could not be clearer on this matter. Heller, 554 U.S. at 635, 128 S.Ct. 2783; McDonald, 561 U.S. at 780, 130" }, { "docid": "18089208", "title": "", "text": "assessing recidivism risks. . Judge Fuentes and those colleagues who join his opinion dissenting from the judgments suggest that our heightened scrutiny analysis boils down to the Challengers asking us to trust that they will not misuse firearms because we cannot make predictive judgments about the need to disarm the Challengers \"with any degree of confidence.” Fuentes Op. Typescript at 55. We disagree. Under either form of heightened scrutiny it is the Government’s burden to prove that the restriction is appropriately tailored. The problem in our cases is that because the Government’s evidence sweeps so broadly, it does not establish that the restriction serves an important interest even as applied to people like the Challengers, let alone to the Challengers themselves. HARDIMAN, Circuit Judge, concurring in part and concurring in the judgments, joined by FISHER, CHAGARES, JORDAN, and NYGAARD, Circuit Judges. The Second Amendment secures an individual “right of the people” to keep and bear arms unconnected to service in the militia. District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2788, 171 L.Ed.2d 637 (2008). This “pre-existing” right was included in the Bill of Rights in light of the troubles the colonists experienced under British rule and the Founders’ appreciation of the considerable power that was transferred to the new federal government. Without a specific guarantee in our fundamental charter, it was feared that “the people” might one day be disarmed. See id. at 598-99, 128 S.Ct. 2783. At the same time, the Founders understood that not everyone possessed Second Amendment rights. These appeals require us to decide who count among “the people” entitled to keep and bear arms. The laws of the United States prohibit felons and certain misdemeanants from possessing firearms. 18 U.S.C. § 922(g)(1). Guided by the Supreme Court’s eharacter-ization of felon dispossession as “presumptively lawful” in Heller, we held in United States v. Barton that this prohibition does not on its face violate the Second Amendment. 633 F.3d 168 (3d Cir. 2011). In doing so we stated that § 922(g)(1) remains subject to as-applied constitutional challenges. Id. at 172-75. These consolidated appeals present" }, { "docid": "19538271", "title": "", "text": "would not extend the statute into that constitutionally problematic territory. The Second Amendment protects \"the right of the people to keep and bear Arms.\" In District of Columbia v. Heller, 554 U.S. 570, 624, 627, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Court held that the Amendment protects the right of all law-abiding citizens to keep and bear arms that are in common use for traditionally lawful purposes, including self-defense. And in McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Court held that the right to keep and bear arms is a fundamental right. See id., at 767-778, 130 S.Ct. 3020 ; id., at 806, 130 S.Ct. 3020 (THOMAS, J., concurring in part and concurring in judgment). The protections enumerated in the Second Amendment, no less than those enumerated in the First, are not absolute prohibitions against government regulation. Heller, 554 U.S., at 595, 626-627, 128 S.Ct. 2783. Traditionally, States have imposed narrow limitations on an individual's exercise of his right to keep and bear arms, such as prohibiting the carrying of weapons in a concealed manner or in sensitive locations, such as government buildings. Id., at 626-627, 128 S.Ct. 2783 ; see, e.g., State v. Kerner, 181 N.C. 574, 578-579, 107 S.E. 222, 225 (1921). But these narrow restrictions neither prohibit nor broadly frustrate any individual from generally exercising his right to bear arms. Some laws, however, broadly divest an individual of his Second Amendment rights. Heller approved, in dicta, laws that prohibit dangerous persons, including felons and the mentally ill, from having arms. 554 U.S., at 626, 128 S.Ct. 2783. These laws are not narrow restrictions on the right because they prohibit certain individuals from exercising their Second Amendment rights at all times and in all places. To be constitutional, therefore, a law that broadly frustrates an individual's right to keep and bear arms must target individuals who are beyond the scope of the \"People\" protected by the Second Amendment. Section 922(g)(9) does far more than \"close [a] dangerous loophole\" by prohibiting individuals who had committed felony domestic violence from" }, { "docid": "18089160", "title": "", "text": "applied to them. The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const, amend. II. In District of Columbia v. Heller, the Supreme Court invalidated a law that “totally ban[ned] handgun possession in the home” and “require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.” 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In so doing, the Court held the Second Amendment protects an individual’s right, to possess a firearm “unconnected with militia service.” Id. at 582, 128 S.Ct. 2783. At the “core” of the Second Amendment is the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 634-35, 128 S.Ct. 2783; Barton, 633 F.3d at 170-71; Marzzarella, 614 F.3d at 89. Two years after Heller, in McDonald v. City of Chicago, the Court held that the Fourteenth Amendment “incorporates the Second Amendment right recognized in Heller, because the right is “fundamental” to “our system of ordered liberty.” 561 U.S. 742, 778, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Although the Second Amendment guarantees an individual right, it is “not unlimited.” Heller, 554 U.S. at 626, 128 S.Ct. 2783; see United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012); Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1443 (2009). Heller catalogued a non-exhaustive list of “presumptively lawful regulatory measures” that have historically constrained the scope of the right. 554 U.S. at 626-27 & n.26, 128 S.Ct. 2783; see Marzzarella, 614 F.3d at 91 (treating the “presumptively lawful regulatory measures” listed in Heller as “exceptions to the right to bear arms”). They include, but are not limited to, “longstanding prohibitions on the possession of firearms by felons and the mentally ill, [] laws forbidding the carrying of firearms in sensitive places such as schools and government" }, { "docid": "22469057", "title": "", "text": "as to all parts except section II.B: The Second Amendment is not a “second-class” constitutional guarantee. See McDonald v. City of Chicago, 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In the watershed case District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that the Second Amendment codified an existing individual right to keep and bear arms for self-defense. Two years later, the Court reaffirmed Heller in McDonald, 561 U.S. at 742, 130 S.Ct. 3020, and held that the individual right to bear arms for self-defense under the Second Amendment was fundamental and applied to the states. Although these opinions specifically address firearms in the home, any fair reading of Heller and McDonald compels the conclusion that the right to keep and bear arms extends beyond one’s front door. Like the rest of the Bill of Rights, this right is indisputably constitutional in stature and part of this country’s bedrock. Plaintiffs assert that the counties’ concealed weapons licensing schemes, in the context of California’s regulations on firearms, obliterate their right to bear arms for self-defense in public. The Supreme Court in Heller addressed concealed-carry restrictions and instructed that those restrictions be evaluated in context with open-carry laws to ensure that the government does not deprive citizens of a constitutional right by imposing incremental burdens. Heller, 554 U.S. at 629, 128 S.Ct. 2783. In the context of present-day California law, the Defendant counties’ limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense. Thus, Plaintiffs’ Second Amendment rights have been violated. While states may choose between different manners of bearing arms for self-defense, the right must be accommodated. The majority sets up and knocks down an elaborate straw argument by answering only a narrow question — whether the Second Amendment protects a right to carry concealed firearms in public. But this approach is contrary to Heller, and contrary to the prescribed method for evaluating and protecting broad constitutional" }, { "docid": "14355882", "title": "", "text": "inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction.”); New Hampshire Right to Life, 99 F.3d at 15 (in the First Amendment context, courts “will assume a credible threat of prosecution in the absence of compelling contrary evidence”). Plaintiffs choose not to carry a firearm for self-protection because of a credible threat of penalty, and therefore have established an actual injury-in-fact. Accordingly, the individual plaintiffs have standing to assert their Second Amendment claims. B. The Second Amendment 1. Generally The Second Amendment to the United States Constitution provides as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. 11. In 2008, the Supreme Court struck down a District of Columbia ordinance that prohibited the possession of handguns in the home, declaring that the amendment guarantees “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In 2010, the Court affirmed that the “right to possess a handgun in the home for the purposes of self-defense” is incorporated into the protections against infringement by the states provided by the Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010). In Heller, however, the Supreme Court qualified its holding, stating that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626-27, 128 S.Ct. 2783. 2. Framework for Analysis When analyzing a constitutional challenge under the Second Amendment, a majority of the courts of appeals have adopted a two-step approach, first set forth by the Third Circuit: First, we ask whether the challenged" }, { "docid": "22468997", "title": "", "text": "protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public. The Second Amendment may or may not protect, to some degree, a right of a member of the general public to carry firearms in public. But the existence vel non of such a right, and the scope of such a right, are separate from and independent of the question presented here. We hold only that there is no Second Amendment right for members of the general public to carry concealed firearms in public. A. Heller and McDonald The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const, amend. II. The watershed case interpreting the Amendment is District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The plaintiff in Heller challenged a District of Columbia statute that entirely banned the possession of handguns in the home, and required that any lawful firearm in the home be “disassembled or bound by a trigger lock-at all times, rendering it inoperable.” Id. at 628, 128 S.Ct. 2783. Relying on the phrase “shall not be infringed,” the Court in Heller viewed the Amendment as having “codified a pre-ex-isting right.” Id. at 592, 128 S.Ct. 2783 (emphasis in original). The Court focused on the history leading to the adoption of the Amendment, and on the common understanding of the Amendment in. the years following its adoption. The Court concluded that the “pre-existing right” to keep and bear arms preserved by the Second Amendment was in part an individual right to personal self-defense, not confined to the purpose of maintaining a well-regulated militia. The Court struck down the challenged statute, concluding that the Amendment preserves the right of members of the general public to keep and bear arms in their homes for the purpose of self-defense: “[W]e hold that the District’s ban on handgun possession" } ]

[ { "docid": "14294696", "title": "", "text": "S.Ct. 1051, 93 L.Ed. 1371 (1949); United States v. Masonite Corp., 316 U.S. 265, 62 S.Ct. 1070, 86 L.Ed. 1461 (1942); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); F.T.C. v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922); United States v. Richfield Oil Corp., 99 F.Supp. 280 (S.D.Cal.1951), affirmed per curiam, 343 U.S. 922, 72 S. Ct. 665, 96 L.Ed. 1334 (1952); Stanton v. Texaco, Inc., 289 F.Supp. 884, 888-889 (D.R.I.1968). . See comments concerning the term “coercion” used in the Simpson opinion. Handler, supra note 8, at 64-5; Rahl, supra note 8, 29 A.B.A. Antitrust Section at 221-22; Rahl, supra note 8, 61 Nw.U.L. Rev. at 3, 8-9; 17 Stan.L.Rev. 519, 521-23 (1965); 2 Tulsa L.J. 55, 56-7 (1965); 37 U.Colo.L.Rev. 293, 294 (1985). “44. Moore retains his life expectancy and business acumen. Assuming that he is entitled to, and so receives, the market value of the destroyed good will of his business, he can, at least theoretically, do as well with it as he could have done by continuing in business at his Fourth Avenue South location.” . There were also minor items of damage such as loss on sale of equipment, etc. . Union properly requested instructions based on Standard Oil Co. of Cal. v. Moore, 251 F.2d 188 (9 Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958). They were rejected and exception taken. Union also requested an instruction that the jury should consider appellant’s earning power in other occupations. It was also refused and exception taken. Thus the case went to jury much like a personal injury case in which the plaintiff was fully incapacitated and had lost his entire earning power." } ]

[ { "docid": "23230349", "title": "", "text": "Customer Selection or Dealer Protection, 22 A.B.A. Antitrust Section 49 (1962). In Sun Oil Co. v. F. T. C., 294 F.2d 465, 482-484 (5th Cir. 1961), the Court of Appeals reversed a finding of a price-fixing agreement based in part upon the granting by Sun of an allowance on the wholesale price to enable a dealer to lower his retail pride to meet competition. Unlike the present case, the dealer testimony was that there was no express or tacit agreement as to the resale price. FTC did not seek review of this portion of the Court of Appeals decision. F. T. C. v. Sun Oil Co., 371 U.S. 505, 511, 83 S.Ct. 358, 9 L.Ed.2d 466 (1963). However, the Supreme Court noted, in another connection, “to the extent that * * * the supplier attempted to set, or was responsible for setting, the retail price, there would be inherent antitrust problems arising from possible existence of illegal price-fixing agreements.” 371 U.S. at 524 n. 14, 83 S.Ct. at 369, 9 L.Ed. 2d 466. . Poller v. Columbia Broadcasting Co., 368 U.S. 464, 468-469, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Osborn v. Sinclair Ref. Co., 324 F.2d 566, 575 n. 17 (4th Cir. 1963). See also Englander Motors, Inc. v. Ford Motor Co., 267 F.2d 11, 15 (6th Cir. 1959). . See, e. g., Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561, 595 (10th Cir. 1961); A. C. Becken Co. v. Gemex Corp., 272 F.2d 1, 4-5 (7th Cir. 1959) Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 854 (8th Cir. 1952); Timberlake, The Legal Injury Requirements and Proof of Damages in Treble Damage Actions under the Antitrust Laws, 30 Geo.Wash. L.Rev. 231, 277-83 (1961-1962). Whatever relevance Simpson v. Union Oil Co., 311 F.2d 764 (9th Cir. 1963), cert. granted April 29, 1963, 373 U.S. 901, 83 S.Ct. 1290, 10 L.Ed.2d 197, may have to Lessig’s claim of damage from Tidewater’s resale price-fixing activities during his occupancy of the station, it has no bearing upon his claim for loss-of future profits because of cancellation of" }, { "docid": "23053583", "title": "", "text": "Lehr-man’s protestations to contrary, the record clearly shows that appellee’s evidence of projected future net profits was in fact based on a yardstick, Bill Brown’s Temple Gulf station.” We do not regard the foregoing semantic controversy as the crucial focus in the case. Rather, the inquiry should more appropriately center on whether Lehr-man’s method of proof, regardless of the label attached is “a just and reasonable estimate of the damage based on relevant data.” Bigelow v. RKO Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946); Lehrman v. Gulf Oil Corp., 464 F.2d 26, 46 (5th Cir. 1972); Poster Exchange, Inc. v. National Screen Service Corp., 431 F.2d 334, 340 (5th Cir. 1970). . The expert’s testimony is merely to the effect that the expense data was correlated to arrive at average figures. . Assuming for the moment that the margin data was compared as well as expense, the number of grades of gasoline sold still seems irrelevant since Gulf’s own witness testified that the dealer’s margin is the same on all grades. . 251 F.2d 188, 221 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958). . An additional factor present here is that in the economic climate of the past decade it would be most surprising if expenses had decreased with the passage of time. . See Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 855 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952); Note, Private Treble Damage Antitrust Suits, supra note 14, at n. 79. . The first decision in this case clearly reserved the determination of the duration of future profits to the jury. 464 F.2d at 47. Gulf argues that Lehrman’s age, health and personal desires are irrelevant under Standard Oil Co. of California v. Moore, 251 F.2d 188, 219 (9th Cir. 1957). Standard Oil, however, only held these factors irrelevant to going concern value not to the duration of future profits. . Although the verdict was reversed and remanded for a new trial on" }, { "docid": "979766", "title": "", "text": "Damages § 171, at 422-25. As an element of recoverable damages, the sufficiency of the evidence of lost profits is dependent upon whether the financial information contained in the record is such that a just or reasonable estimate can be drawn. Rich v. Eastman Kodak Co., 583 F.2d 435, 437 (8th Cir. 1978) (per curiam); Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 855 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952). As to appellant’s alleged loss of profits, the district court found that “evidence on its alleged loss of profits relating to loss of spot business is speculative and unwarranted and such profits cannot be allowed . ... ” Cargill, Inc. v. Taylor Towing Service, Inc., 483 F.Supp. 1094, 1098-99 (E.D.Mo.1979). Anticipated profits are recoverable only when the claim is substantiated on proof of income and expenses prior to interruption of the business enterprise. Rich v. Eastman Kodak Co., supra, 583 F.2d at 436. In the final analysis, the question of lost profits as an item of damages is primarily a problem of proof and it is for the district court initially to determine whether the moving party has produced the quantum and quality of evidence sufficient to establish the claim in a sum certain. Handi Caddy, Inc. v. American Home Products, 557 F.2d 136, 139 (8th Cir. 1977). Upon careful review of the record and the financial computations submitted for the first time on appeal, we hold that the district court did not err in denying lost profits. Prejudgment Interest Appellant next argues that the district court erred in failing to award prejudgment interest on the full amount of stipulated damages. Appellant argues that recovery of prejudgment interest represents an element of just compensation for the actual loss which it suffered. The district court denied the claim on the grounds that appellant had unduly inflated its claim. We agree with appellant’s assertions and reverse and remand. Generally, the award of prejudgment interest, in the absence of statutory directives, rests in the discretion of the district court. Mid-America Transportation Co." }, { "docid": "20557537", "title": "", "text": "the growth or stability of Vandervelde’s profits is highly speculative. Finally, considering the whole of the evidence, there is a doubt as to whether Vandervelde would have been willing or able to continue in the business throughout the decade of the 1960’s. The business was in a poor condition to endure further financial reverses, even without the suspension, and the record reasonably shows that even before suspension the business had not been the success Vandervelde had hoped. The evasiveness and lack of credibility of Vandervelde as a witness are of no aid to plaintiffs in this connection or generally. In a private treble damage action “the trier of the facts may make a just and reasonable estimate based on relevant data and may act upon probable and inferential as well as direct and positive proof” in assessing damages. Elyria-Lorain Broadcasting Co. v. Lorain Journal Co., 358 F.2d 790, 793 (6th Cir. 1966) ; cf. Eastern Fireproofing Co., Inc. v. U. S. Gypsum Co., 970 Trade Cas. (CCH), ¶ 73, 342 at 89, 365 (D.Mass. 1970). The companies suing here were deprived of a loss of profits while they continued in business and their good-will value when the business was terminated. Calculation of these amounts provides full relief for the corporate plaintiffs. Although the calculation of going concern value “obviously involve [s] an element of speculation,” the detailed picture of the business presented by Topper and Sommer provides data on which a “rationally-based quantification” may be made. Farmington Dowel Products Co., supra 421 F.2d at 81. See also, Note, 80 Harv.L.Rev. 1566, 1581 (1967). When a plaintiff claims damages for total destruction of his business his recovery is bounded by “the only value which his business had before it was closed which it did not have afterwards . its ‘going concern’ or good will value.” Standard Oil Co. of California v. Moore, 251 F.2d 188, 219 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958) (destruction of retail gasoline business). The Ninth Circuit defined the elements which go into calculation of the “good will” of" }, { "docid": "23272044", "title": "", "text": "The district court’s valuation, on the other hand, is based on actual gain experienced by the Bulls over ten years. (The 1972 going-concern value was affected by a number of ex ante predictions, which were proved either true or false and were reflected in the 1982 value). We do not understand defendants’ objection to using this adjusted value (which is not speculative, cf. Farmington Dowel Products, 421 F.2d 61) because we know of no case that suggests that a value based on expectation of gain is more relevant and reliable than one derived from actual gain. “To correct uncertain prophecies ... is not to charge the offender with elements of value non-existent at the time of his offense. It is to bring out and expose to light the elements of value that were there from the beginning.” Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 698, 53 S.Ct. 736, 739, 77 L.Ed. 1449 (1933) (citations omitted); see also A.C. Becken Co. v. Gemex Corp., 314 F.2d 839, 840 (7th Cir.), cert. denied, 375 U.S. 816, 84 S.Ct. 49, 11 L.Ed.2d 51 (1963) (“a forecast of tomorrow’s weather is always subject to confirmation or modification by tomorrow’s observation ”) (emphasis in original); Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 856 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952) (passage of time permits better proof of extent of harm). We know of no requirement that damages must always be computed as of the time of the injury or, if not, reduced by some appropriate discount rate to produce a value as of that date. Cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971) (“Thus, if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date.”); Fontana Aviation, Inc. v." }, { "docid": "23569193", "title": "", "text": "June Dairy Products Co., 114 F.Supp. 129 (D.N.J.1950) (patent abuse). Assuming that Mr. Pitchford earned the salary by the contribution of services necessary to the dealership’s operations, anyone purchasing the dealership would have to expend an approximately equal amount to hire a replacement for Mr. Pitchford, and the earnings from ownership of the concern would have to be reduced by that much. If Mr. Pitchford did not contribute services equal in value to the “salary” he drew as president of the company, then he was not being paid a salary but was drawing a dividend due the owner. . Albrecht v. Herald Co., 452 F.2d 124 (8th Cir. 1971), rev’d on other grounds, 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61, 62 (1st Cir. 1970). . Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61, 82 (1st Cir. 1970); William Goldman Theatres, Inc. v. Loew’s, Inc., 69 F.Supp. 103, 109 (E.D.Pa.1946), aff’d, 164 F.2d 1021 (3d Cir.), cert. denied, 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948). . See 15 U.S.C. § 15 (1970). . 487 F.2d 161 (3d Cir. 1973). . NBO Industries v. Brunswick Corp., 523 F.2d 262, 279 (3d Cir. 1975). See Merola v. Atlantic Richfield Co., 493 F.2d 292, 298 (3d Cir. 1974). . 487 F.2d at 166-169. . 493 F.2d 292 (3d Cir. 1974) (Merola I), on appeal from the decision on remand, 515 F.2d 165 (3d Cir. 1975) (Merola II). . 515 F.2d at 168. . In this case Pitchford and his counsel had a 25 per cent contingency fee arrangement. . See Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 859 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952); In re Gypsum Cases, 386 F.Supp. 959, 984 (N.D.Cal.1974); Gossner v. Cache Valley Dairy Ass’n, 307 F.Supp. 1090 (D.Utah 1970)." }, { "docid": "5437757", "title": "", "text": "is to insure that a successful plaintiff in an antitrust action does not have its treble damage recovery unduly diminished by the payment of fees to its attorneys. Perkins v. Standard Oil Co., 474 F.2d 549, 553 (9th Cir.), cert. denied, 412 U.S. 940, 93 S.Ct. 2778, 37 L.Ed.2d 400 (1973); Farmington Dowel Products Co. v. Forster Manufacturing Co., 421 F.2d 61, 88 (1st Cir. 1970); Locklin v. Day-Glo Color Corp., 378 F.Supp. 423 (N.D.Ill.1974). Recovery of attorney’s fees under 15 U.S.C. § 15 of course accrues to the plaintiff and not its attorneys. First Iowa Hydro Electric Coop. v. Iowa-Illinois Gas & Electric Co., 245 F.2d 630-32 (8th Cir. 1957), cert. denied, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76 (1958). The standard applied by this court in reviewing a 15 U.S.C. § 15 attorney’s fees award is whether the district court’s findings were clearly erroneous as to the factual basis for the award, or whether it committed abuse as to the discretional margin involved in its allowance. Armco Steel Corp. v. State of North Dakota, 376 F.2d 206, 212 (8th Cir. 1967). See Grunin v. International House of Pancakes, supra, 513 F.2d at 126. Nevertheless, “it is the duty of appellate courts to protect against ‘vicarious generosity’ in the matter of attorney fees [in antitrust cases].” Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 859 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952). Cf. Locklin v. Day-Glo Color Corp., supra, 378 F.Supp. at 426. (“Over-generosity, in particular, must be guarded against so as to maintain public respect for and confidence in the organized bar.”). In cases involving substantial actual damages, courts test the reasonableness of the attorney’s fees award by examining the ratio of the attorney’s fees to the untrebled damage award. Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., supra, 194 F.2d at 859; Milwaukee Towne Corp. v. Loew’s, Inc., 190 F.2d 561, 571 (7th Cir. 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 303, 96 L.Ed. 680 (1952). The attorneys’ fees awarded by the district court" }, { "docid": "929923", "title": "", "text": "is not enough for recovery of damages to prove that an antitrust law was violated by the defendant. Cf., Duff v. Kansas City Star Company, 299 F.2d 320, 323 (8th Cir. 1962). Rather, the rule is that damages may not be awarded to a litigant unless he also proves “with a fair degree of certainty, the fact of damage and the causal connection between the antitrust violation and the injury.” ABA Antitrust Section, Antitrust Devel opments: 1955-1968, at 282 (1968). See, Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 957-958 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960). Cf., Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969); Story Parchment Co. v. Paterson P. Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931). The Pioneer’s claims for damages for the Sherman Act violation were premised on two factors — loss of advertising revenue and loss of circulation. The District Court found that Pioneer lost one-third of its grocery advertising during a five-week period in 1965, that this was the only advertising loss, and that it was caused by the illegal blanketing in 1965. It declined to award more than nominal damages for the loss because no evidence was introduced to show what the advertising revenue actually was or would have been absent the blanketing. We are satisfied that the court’s findings and conclusions with respect to the loss of advertising revenue are supported by substantial evidence. This is not an instance where the defendant’s actions prevented a precise computation of the damage. Rather, the fault lies in the plaintiff’s failure to introduce any evidence as to the value of its grocery advertisements, normal or actual, during the five-week period. The plaintiff’s witness merely related that the loss was one-third of the normal. To have awarded more than nominal damages under these circumstances would have been to engage in impermissible speculation and conjecture. See, e. g., Siegfried v. Kansas City Star Company, 298 F.2d 1, 5-8 (8th Cir.), cert." }, { "docid": "23230350", "title": "", "text": "v. Columbia Broadcasting Co., 368 U.S. 464, 468-469, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Osborn v. Sinclair Ref. Co., 324 F.2d 566, 575 n. 17 (4th Cir. 1963). See also Englander Motors, Inc. v. Ford Motor Co., 267 F.2d 11, 15 (6th Cir. 1959). . See, e. g., Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561, 595 (10th Cir. 1961); A. C. Becken Co. v. Gemex Corp., 272 F.2d 1, 4-5 (7th Cir. 1959) Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 854 (8th Cir. 1952); Timberlake, The Legal Injury Requirements and Proof of Damages in Treble Damage Actions under the Antitrust Laws, 30 Geo.Wash. L.Rev. 231, 277-83 (1961-1962). Whatever relevance Simpson v. Union Oil Co., 311 F.2d 764 (9th Cir. 1963), cert. granted April 29, 1963, 373 U.S. 901, 83 S.Ct. 1290, 10 L.Ed.2d 197, may have to Lessig’s claim of damage from Tidewater’s resale price-fixing activities during his occupancy of the station, it has no bearing upon his claim for loss-of future profits because of cancellation of the lease and contract. The problem of establishing proximate cause said by some to arise when the damage claim is based upon an alleged' refusal to deal prohibited by § 3 of the Clayton Act (see note 38) does not exist when, as in the present case, the refusal! to deal is part of a course of conduct violative of § 1 of the Sherman Act. A. C. Becken Co. v. Gemex Corp., 272 F.2d 1 (7th Cir. 1959); Halper, Individual Refusals to Deal: Customer Selection or Dealer Protection, 22 A.B.A. Antitrust Section 49, 59 (1963). . The instruction requested read: “A plaintiff whose lease and product agreements have been cancelled as a result of conduct in violation of the antitrust laws is entitled to be awarded as damages the loss of profits and values resulting from the cancellations. “If you find that Paul Lessig had developed net income and profits at the service station at 22nd and Irving Street, San Francisco during the period May, 1955, to May 15, 1958, and there was reasonable" }, { "docid": "23517011", "title": "", "text": "1980 to 1982, but also the extent to which the increase in value of the business during the same period would have been greater in Los Angeles than it actually was in Oakland. In Fishman v. Estate of Wirtz, 594 F.Supp. 853 (N.D.Ill.1984), a case strikingly similar to our own, the plaintiff was unlawfully precluded from purchasing a sports franchise. The district court included in pre-trebled damages both lost profits and the increase in the value of the business during the period of the violation. Similarly, in Magnus Petroleum Co. v. Skelly Oil Co., 446 F.Supp. 874 (E.D.Wis.1978), rev’d on other grounds, 599 F.2d 196 (7th Cir.), cert. denied, 444 U.S. 916, 100 S.Ct. 231, 62 L.Ed.2d 191 (1979), the district court allowed a corporation which had been unlawfully prevented from acquiring a business to recover three times the sum of both profits lost from the date of the attempted acquisition to the date of trial, and the increase in the value of the business’ good will during that same period. 446 F.Supp. at 882-83. See also Story Parchment Co. v. Paterson Co., 282 U.S. 555, 561, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931) (antitrust plaintiffs damages include both (1) the difference between the profits actually realized by the injured party and the profits it would have realized but for the unlawful acts complained of; and (2) the diminished value of its business as a result of such acts); Atlas Building Products Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 958-59 (10th Cir.1959) (same), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960); Photovest Corp. v. Fotomat Corp., 1977-1 Trade Cases (CCH) ¶ 61,529 (S.D.Ind.) (assessing pre-trebled damages of profits lost during antitrust violation ylus difference between what business would have been worth absent a violation and what it was actually worth at end of damage period), aff'd in relevant yart, 606 F.2d 704 (7th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d 601 (1980); Atlantic City Electric Co. v. General Electric Co., 226 F.Supp. 59, 61 (S.D.N.Y.1964) (antitrust plaintiff entitled" }, { "docid": "14937968", "title": "", "text": "S.Ct. at 739. This principle is equally applicable in antitrust cases. In Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), the Supreme Court specifically noted that a plaintiff may: ... recover not only those damages which he has suffered at the date of accrual, but also those which he will suffer in the future from the particular invasion, including what he has suffered during and will predictably suffer after trial. 401 U.S. at 339, 91 S.Ct. at 806 (emphasis added). Accord, Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 669 F.2d 490, 494 (7th Cir.), cert. denied, 459 U.S. 257, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982) (“... plaintiff is entitled to recover all damages ... including damages that will be suffered during and after trial.”); Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 23 n. 12 (5th Cir.), cert. denied, 419 U.S. 987, 95 S.Ct. 246, 42 L.Ed.2d 260 (1974) (“[It] would make a mockery of the'private antitrust remedy” to limit plaintiff to the going-concern value of his business at the date of its destruction); Lehrman v. Gulf Oil Corp., supra; William Goldman Theatres v. Loew’s, Inc., 69 F.Supp. 103, 105 (E.D.Pa.1946), aff’d, 164 F.2d 1021 (3rd Cir.1948); A.C. Becken Co. v. Gemex Corp., 314 F.2d 839, 840 (7th Cir.1963); Lawlor v. Loewe, 235 U.S. 522, 536, 35 S.Ct. 170, 172, 59 L.Ed. 341 (1915). Nor can defendants complain that the passage of timé between their unlawful conduct and the trial has served to increase damages. Rather, as explained in Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 856 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952), the passage of time merely permits proof of the “extent of the harm.” Consistent with the foregoing principles, plaintiff IBI is entitled to recover damages based upon the value of the business it would have owned as of the time of trial. Similar approaches are reflected in many cases. For example, in Magnus Petroleum Co. v. Skelly Oil Co., 446 F.Supp. 874 (E.D.Wis.1978), rev’d" }, { "docid": "789759", "title": "", "text": "other termination of the business as a necessary predicate to recovery. Eiberger v. Sony Corp. of America, 622 F.2d 1068 (2d Cir.1980) (termination of office equipment dealership); Pitchford, supra (termination of scientific instruments dealership contract); Albrecht v. Herald Company, 452 F.2d 124 (8th Cir.1971) (forced sale of newspaper carrier’s route); Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir.), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964) (termination of service station lease and dealer contract); Osborn v. Sinclair Refining Co., 324 F.2d 566 (4th Cir.1963) (cancellation of service station lease and lessee’s dealer sales arrangement); Twentieth Century Fox-Film Corp. v. Brookside Theatre Corp., 194 F.2d 846 (8th Cir.), cert. denied 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952) (forced sale of 15-year lease on motion picture theater). The calculation of going concern value is made as of the date the plaintiff’s business was terminated or sold as a result of the illegal conduct. Bogosian v. Gulf Oil Co., 561 F.2d 434, 455 (3d Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978); Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61 (1st Cir.1970). As stated in Farmington, supra, “going concern” represents “the value which the business would have had at that time but for [the defendant’s] illegal activity.” 421 F.2d at 81. Accordingly, not only must there be a sale or cessation of the business but the date must be at the end of the damage period. Plaintiffs operated their business as a going concern for approximately five months after May 31, 1977, but plaintiffs elected May 31, 1977 as the end of the damage period. A government loan of $600,000 on or about that date permitted Columbia to continue in operation: Q. Now you said that the end of the damage period for which you are seeking damages is May — is what, I’m sorry. A. May 31, 1977. Q. Why did you pick that as the end of the damage period? A. It was just about that time or shortly thereafter that we received the" }, { "docid": "3218600", "title": "", "text": "be deleted for the reason that it is included in the sale price of the paper route * * 321 F.Supp. at 101. Secondly, the remand from the Supreme Court finding for the plaintiff on liability as a matter of law left only the issue of damages. The defendant could no longer properly contest the issue of liability, nor as a practical matter could it contest the fact that some damages would have to be found by the jury. Thus a motion for directed verdict at the close of alt the evidence would not only have been a useless act but would have been contumacious of the Supreme Court’s remand and our remand in connection therewith. We find no merit in plaintiff’s contention on this procedural issue. The question of duplicate damages was clearly presented to the trial court. Defendant contends that an award for loss of future profits in addition to an award allowing the full value of plaintiff’s business reconstituted with the full complement of 1200 customers and viewed as a going concern constituted a double recovery which when trebled would be a sixfold award of actual damages. Defendant’s chief reliance, aside from the seeming logic of its contention, rests on the cases of Standard Oil Co. v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958); Simpson v. Union Oil Co., 411 F.2d 897 (9th Cir.), cert. denied in part and granted in part and judgment reversed, 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969); Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61 (1st Cir. 1969). The plaintiff predicates his claim for the item three damage on Twentieth Century Fox-Film Corp. v. Brookside Theater Corp., 194 F.2d 846 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952); Osborn v. Sinclair Refining Co., 324 F.2d 566 (4th Cir. 1963); Atlas Building Products v. Diamond Block & Gravel Co., 269 F.2d 950 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960); Lessig v." }, { "docid": "23053584", "title": "", "text": "on all grades. . 251 F.2d 188, 221 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958). . An additional factor present here is that in the economic climate of the past decade it would be most surprising if expenses had decreased with the passage of time. . See Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 855 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952); Note, Private Treble Damage Antitrust Suits, supra note 14, at n. 79. . The first decision in this case clearly reserved the determination of the duration of future profits to the jury. 464 F.2d at 47. Gulf argues that Lehrman’s age, health and personal desires are irrelevant under Standard Oil Co. of California v. Moore, 251 F.2d 188, 219 (9th Cir. 1957). Standard Oil, however, only held these factors irrelevant to going concern value not to the duration of future profits. . Although the verdict was reversed and remanded for a new trial on damages for failure to consider the mitigating factor o’f Lehrman’s new earnings, the court addressed one of the specific contentions that Gulf raises here. Gulf also protests the “speculative” testimony of Ernest Brown [appellant’s expert accountant] and urges us to hold this testimony an inadequate basis for assessing Lehrman’s damages. But Gulf merely protests application of the familiar rule that a wrongdoer is responsible for uncertainty in calculating the damages proximately caused by his own wrongdoing. On the facts of the present case, there was evidence from which a jury might conclude that Gulf’s decision to punish Lehrman by means of its TCA system for failure to abide by Gulf’s system of “suggested” prices caused the demise of Lehrman’s station. Once it is apparent that damages must be assessed so as to approximate the future profits of a business, a court and jury necessarily enter into the realm of the imprecise and the uncertain. 464 F.2d at 45. . 494 F.2d 16, 25 (5th Cir. 1974). . See Lenz v. Southern Pacific Co., 493 F.2d" }, { "docid": "23296049", "title": "", "text": "initially, to be seeking its “going concern” value as of November 1968, rather than as of February 1958 as Forster’s argument suggests. . Farmington seems to draw the greatest comfort from Twentieth Century-Fox Corp. v. Brookside Theatre Corp., 194 F.2d 846 (8th Cir. 1952), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952). That case did take account of lost profits for a period after the time that the plaintiff had been driven out of business. However, critical distinctions exist. First, unlike our case, the business in that case was continued in essentially the same form by one of the defendants, thereby producing actual profits over the period in question which could be estimated with some degree of certainty. Secondly, that court did not make an award for future lost profits in addition to an award for “going concern” value, which is what Farmington seeks here. Finally, to the extent that the court may have awarded what could be called the “going concern” value of the plaintiff there, it was figured as of the day that the plaintiff had been forced out of business. Farmington relies also on Atlas Building Products Co. v. Diamond Black & Gravel Co., 269 F.2d 950 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960), which decision upheld an award of lost profits and diminished asset value. Yet the method used by the district court in our case awards both aspects of damages. The basic dispute between the district court and Farmington seems to us to concern the date for which “going concern” value should be determined. The Atlas Building case gives no indication of the date for which “diminished asset” value was determined in that case. Since that business continued up to the time of trial, there is little speculation involved in estimating “diminished asset” value as of the time of trial, assuming arguendo that the court did so. Yet in our case, when the business ends on a given date, it seems far too speculative to give “going concern” value for a date ten" }, { "docid": "20557538", "title": "", "text": "The companies suing here were deprived of a loss of profits while they continued in business and their good-will value when the business was terminated. Calculation of these amounts provides full relief for the corporate plaintiffs. Although the calculation of going concern value “obviously involve [s] an element of speculation,” the detailed picture of the business presented by Topper and Sommer provides data on which a “rationally-based quantification” may be made. Farmington Dowel Products Co., supra 421 F.2d at 81. See also, Note, 80 Harv.L.Rev. 1566, 1581 (1967). When a plaintiff claims damages for total destruction of his business his recovery is bounded by “the only value which his business had before it was closed which it did not have afterwards . its ‘going concern’ or good will value.” Standard Oil Co. of California v. Moore, 251 F.2d 188, 219 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958) (destruction of retail gasoline business). The Ninth Circuit defined the elements which go into calculation of the “good will” of such a business as: “(1) What profit has the business made over and above an amount fairly attributable to the return on the capital investment and to the labor of the owner?; (2) What is the reasonable prospect that this additional profit will continue into the future, considering all circumstances existing and known as of the date of the valuation?” Standard Oil Co. of California v. Moore, 251 F.2d at 219; Simpson v. Union Oil Co. of California, 411 F.2d 897, 909 (9th Cir.), rev’d on other grounds, 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969) ; Central Coal and Coke Co. v. Hartman, 111 F. 96, 98-99 (8th Cir. 1901). A deduction for the amount which the capital invested in the corporate plaintiffs would otherwise earn is necessary in order to limit the recovery to the loss which they realistically suffered. The value of their business is measured by the amount of income that business would produce in excess of the income which could otherwise be generated by their capital if devoted" }, { "docid": "23296050", "title": "", "text": "of the day that the plaintiff had been forced out of business. Farmington relies also on Atlas Building Products Co. v. Diamond Black & Gravel Co., 269 F.2d 950 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960), which decision upheld an award of lost profits and diminished asset value. Yet the method used by the district court in our case awards both aspects of damages. The basic dispute between the district court and Farmington seems to us to concern the date for which “going concern” value should be determined. The Atlas Building case gives no indication of the date for which “diminished asset” value was determined in that case. Since that business continued up to the time of trial, there is little speculation involved in estimating “diminished asset” value as of the time of trial, assuming arguendo that the court did so. Yet in our case, when the business ends on a given date, it seems far too speculative to give “going concern” value for a date ten years after it had ceased to be a going concern. . E. Timberlake, “The Legal Injury Requirements and Proof of Damages in Treble Damage Actions Under the Antitrust Laws”, 30 Geo.Wash.L.Rev. 231, 280 (1961). IVe note that the district court stated its reason in terms of “duplication”. On analysis, we see no duplication in estimating ten years’ profits, followed by an estimate of the going concern value at the end of those ten years— which involves putative profits for subsequent years. But, for reasons stated, we agree with the district court’s ruling. . The district court noted at least four reasons why the two businesses were not sufficiently comparable. First, while Farmington’s production was limited almost entirely to wooden skewers, Forster manufactured some 24 woodenware products in addition to skewers, which comprised a relatively small proportion of its total business. Second, Farmington had no sales or distribution organization which was remotely comparable to the extensive sales and distribution organization which Forster maintained throughout the United States. Third, Farming-ton was minimally capitalized, while Forster was adequately" }, { "docid": "14937969", "title": "", "text": "value of his business at the date of its destruction); Lehrman v. Gulf Oil Corp., supra; William Goldman Theatres v. Loew’s, Inc., 69 F.Supp. 103, 105 (E.D.Pa.1946), aff’d, 164 F.2d 1021 (3rd Cir.1948); A.C. Becken Co. v. Gemex Corp., 314 F.2d 839, 840 (7th Cir.1963); Lawlor v. Loewe, 235 U.S. 522, 536, 35 S.Ct. 170, 172, 59 L.Ed. 341 (1915). Nor can defendants complain that the passage of timé between their unlawful conduct and the trial has served to increase damages. Rather, as explained in Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 856 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952), the passage of time merely permits proof of the “extent of the harm.” Consistent with the foregoing principles, plaintiff IBI is entitled to recover damages based upon the value of the business it would have owned as of the time of trial. Similar approaches are reflected in many cases. For example, in Magnus Petroleum Co. v. Skelly Oil Co., 446 F.Supp. 874 (E.D.Wis.1978), rev’d on other grounds, 599 F.2d 196 (7th Cir.), cert. denied, 444 U.S. 916, 100 S.Ct. 231, 62 L.Ed.2d 171 (1979) , plaintiff was prevented by reason of an antitrust violation from acquiring a business in 1971. He was permitted to recover for lost profits from 1971 to the date of trial, and for the lost good will (i.e., increase to going-concern value) as of the time of trial. 446 F.Supp. at 882-83. Similarly, in Photovest Corp. v. Fotomat Corp., 1977-1 Trade Cases (CCH) ¶ 61,529 (S.D.Ind.1977), aff’d in pertinent part, 606 F.2d 704 (7th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d 601 (1980), the plaintiff’s business had been injured in 1974 by acts of monopolization. The trial court concluded that from 1974 to September, 1976 (just prior to the commencement of trial) the plaintiff would have earned $124,305 “but for the defendant’s wrongful acts.” In addition to awarding those lost profits, the court also held: The value of plaintiffs business at the time of trial was zero. Its value in September," }, { "docid": "3218601", "title": "", "text": "constituted a double recovery which when trebled would be a sixfold award of actual damages. Defendant’s chief reliance, aside from the seeming logic of its contention, rests on the cases of Standard Oil Co. v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958); Simpson v. Union Oil Co., 411 F.2d 897 (9th Cir.), cert. denied in part and granted in part and judgment reversed, 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969); Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61 (1st Cir. 1969). The plaintiff predicates his claim for the item three damage on Twentieth Century Fox-Film Corp. v. Brookside Theater Corp., 194 F.2d 846 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952); Osborn v. Sinclair Refining Co., 324 F.2d 566 (4th Cir. 1963); Atlas Building Products v. Diamond Block & Gravel Co., 269 F.2d 950 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960); Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir.), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964). The pertinent part of 15 U.S.C. § 15 reads: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor * * * and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” The damages referred to in the statute should be construed in the ordinary com mon law context as compensating plaintiff in full for the preventable and established loss sustained by reason of tortious or proscribed acts. The general rule in property damage cases, as stated in Gleason v. Title Guarantee Company, 300 F.2d 813, 815 (5th Cir. 1962), is “* * * that the tort or contract liability of a party is limited to the difference in value between what the plaintiff’s property is worth and what it would be worth but for the fault of the defendant.” In Twentieth Century" }, { "docid": "789758", "title": "", "text": "as of that date losses were allowed for its termination or destruction. For recovery of “going concern” damages as well as any antitrust damages, it is well established that a plaintiff cannot prevail merely by proof that the defendant has violated the antitrust laws. He must prove that the violation had a causal relationship to the particular loss of anticipated revenue, that is, that the particular damage to plaintiff flowed from the conduct of the plaintiff. Rea v. Ford Motor Company, 497 F.2d 577 (3d Cir.1974), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1979). See also, Freedman v. Philadelphia Terminals Auction Co., 301 F.2d 830, 833 (3d Cir.), cert. denied, 371 U.S. 829, 83 S.Ct. 40, 9 L.Ed.2d 67 (1962). Going concern damage is designed to compensate for the harm sustained when a business interest is unlawfully terminated as a result of an antitrust violation. Schneider, Damages for Termination of a Business Interest, 49 Antitrust L.J. 1295 (1980). Antitrust cases concerning “going concern” or “goodwill” damages assume destruction, forced sale or other termination of the business as a necessary predicate to recovery. Eiberger v. Sony Corp. of America, 622 F.2d 1068 (2d Cir.1980) (termination of office equipment dealership); Pitchford, supra (termination of scientific instruments dealership contract); Albrecht v. Herald Company, 452 F.2d 124 (8th Cir.1971) (forced sale of newspaper carrier’s route); Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir.), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964) (termination of service station lease and dealer contract); Osborn v. Sinclair Refining Co., 324 F.2d 566 (4th Cir.1963) (cancellation of service station lease and lessee’s dealer sales arrangement); Twentieth Century Fox-Film Corp. v. Brookside Theatre Corp., 194 F.2d 846 (8th Cir.), cert. denied 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952) (forced sale of 15-year lease on motion picture theater). The calculation of going concern value is made as of the date the plaintiff’s business was terminated or sold as a result of the illegal conduct. Bogosian v. Gulf Oil Co., 561 F.2d 434, 455 (3d Cir.1977), cert. denied, 434 U.S." } ]

[ { "docid": "22928760", "title": "", "text": "unconstitutional delegation of power, violates separation of powers, and deprives appellants of a right to vote. The California Supreme Court has previously rejected similar constitutional challenges on the ground the Bar Court functions as an administrative arm of the Court, which maintains final authority over discipline. See Lebbos v. State Bar, 53 Cal.3d 37, 48, 278 Cal.Rptr. 845, 806 P.2d 317 (1991). In any case, regardless of the ultimate merits of these claims, the pertinent statutes are not “ ‘flagrantly and patently violative of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it.’ ” Younger, 401 U.S. at 53-54, 91 S.Ct. at 755 (quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941)). Accordingly, any violation would not justify refusal to abstain. III. Dismissal of Claims for Monetary Relief All of the defendants are immune from liability for monetary damages. The Eleventh Amendment’s grant of sovereign immunity bars monetary relief from state agencies such as California’s Bar Association and Bar Court. See Lupert v. California State Bar, 761 F.2d 1325, 1327 (9th Cir.1985). This immunity extends to the individual defendants acting in their official capacities. See Pena v. Gardner, 976 F.2d 469, 472 (9th Cir.1992); see also Hafer v. Melo, 502 U.S. 21, 24-25, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991) (holding that a defendant official acting in his official capacity receives the same immunity as the government agency to which he belongs). The individual defendants are also immune in their individual capacities. The justices of the California Supreme Court have absolute immunity for their role in reviewing the recommendations of the Bar Court. See Rosenthal v. Justices of the Supreme Court of California, 910 F.2d 561, 565-66 (9th Cir.1990). They are also entitled to absolute legislative immunity for actions relating to the promulgation of disciplinary rules. See Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 734, 100 S.Ct. 1967, 1975-76, 64 L.Ed.2d 641 (1980). The Bar Court judges and prosecutors" } ]

[ { "docid": "22859803", "title": "", "text": "lack of subject matter jurisdiction under the Rooker-Feldman doctrine. Manufactured Home Cmtys., Inc. v. San Jose, 358 F.Supp.2d 896 (N.D.Cal.2003). The district court affirmed its dismissal under res judicata. The district court also dismissed MHC’s claims for lack of ripeness, want of supplemental jurisdiction, and failure to comply with California’s statute of limitations. This court has jurisdiction to review the district court’s decision pursuant to 28 U.S.C. § 1291. Hacienda Valley Mobile Estates v. City of Morgan Hill Rent Review Comm’n, 353 F.3d 651, 653 (9th Cir.2003). Rooker-Feldman jurisdiction claims are reviewed de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). Res judicata claims are also reviewed de novo. Palomar Mobilehome Park Ass’n. v. City of San Marcos, 989 F.2d 362, 363 (9th Cir.1993). Ripeness is a question of law, and it is reviewed de novo. Ventura Mobilehome Cmtys. Owners Ass’n v. City of San Buenaventura, 371 F.3d 1046, 1050 (9th Cir.2004). Whether a district court had supplemental jurisdiction is reviewed de novo; a district court’s decision to decline supplemental jurisdiction is reviewed for abuse of discretion. Trs. of the Constr. Indus. & Laborers Health & Welfare Trust v. Desert Valley Landscape & Meant., Inc., 333 F.3d 923, 925 (9th Cir.2003). Whether a claim is barred by a statute of limitations and when a statute of limitations begins to run are reviewed de novo. Cashman v. City of Cotati, 374 F.3d 887, 892 (9th Cir.2004). The facts alleged in a complaint dismissed for lack of subject matter jurisdiction are accepted as true. Carson Harbor Village, Ltd. v. City of Carson, 353 F.3d 824, 826 (9th Cir.2004). Factual Background and Procedural History The City of San Jose passed a Mobile-home Rent Ordinance in 1986. San Jose Municipal Code (SJMC) eh. 17.22. The Ordinance includes, among other things, rent control provisions. The rent control provisions allow for a maximum annual rent increase calculated in relation to the Consumer Price Index. SJMC § 17.22.450. Proposed increases exceeding the calculated amount are subject to administrative review. The maximum annual rent increase is supposed to allow mobilehome park owners a fair and reasonable" }, { "docid": "22619451", "title": "", "text": "relates to partnership-based fiduciary duties between Noel and Sandra Hall (the “partnership claim”). Noel alleges that Sandra Hall breached her fiduciary duty by attempting to convert partnership property for her sole use and by attempting to extort Noel into relinquishing his rights in Red. The district court dismissed the partnership claim for want of subject matter jurisdiction under the Rooker-Feldman doctrine. It held that because Sandra Hall’s fiduciary duties under the partnership were at issue in the pending action in Skamania County Superior Court, Rooker-Feldman barred it from exercising jurisdiction. The district court granted the Halls’ motion for summary judgment on the nine wiretapping and mobile home claims based on claim preclusion. The court held that Noel should have asserted these claims as compulsory counterclaims under Washington Civil Rule 13(a) in earlier state actions, and that his failure to assert them in those actions meant that he was precluded from asserting them in the present suit. Noel brought an interlocutory appeal. We review a jurisdictional dismissal under the Rooker-Feldman doctrine de novo. Canatella v. California, 304 F.3d 843, 849 (9th Cir.2002). We review a grant of summary judgment de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether any genuine issues of material fact exist and whether the district court correctly applied the relevant substantive law. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001). II. Claim Dismissed Under Rooker-Feldman The district court dismissed Noel’s fiduciary duty claim (claim 7) against the Halls under the Rooker-Feldman doctrine based on the pendency of Sandra Hall’s suit in Skamania County Superior Court, in which essentially the same issue of fiduciary duty was being litigated between Hall and Noel. We disagree with the district court that Rooker-Feldman required dismissal. A. The Rooker-Feldman Doctrine The Rooker-Feldman doctrine takes its name from Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206" }, { "docid": "23276691", "title": "", "text": "district court’s decision that it lacked subject matter jurisdiction over Janis’s claims against Hilton and Judy. We consider both appeals together because they arise from the same factual background. II. Discussion We review an application of the Rooker-Feldman doctrine de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). The interpretation of ERISA, including whether ERISA preempts state law, is a question of law which we also review de novo. Metropolitan Life Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir.2006); Cleghorn v. Blue Shield of California, 408 F.3d 1222, 1225 (9th Cir.2005). A. The Rooker-Feldman Doctrine and Preclusion We first consider whether any preclusion doctrine prevents Janis from bringing her claims against Judy and Hilton, or IATSE from bringing its declaratory judgment action. We agree with the district court and conclude that the district court lacked jurisdiction, under the Rooker-Feldman doctrine, to adjudicate Janis’s claims against Judy and Hilton, but that IATSE is not precluded from asserting its cross-claim here. The Rooker-Feldman doctrine takes its name from two Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). It stands for the relatively straightforward principle that federal district courts do not have jurisdiction to hear de facto appeals from state court judgments. Noel, 341 F.3d at 1155. The jurisdictional prohibition arises from a negative inference drawn from 28 U.S.C. § 1257 which grants jurisdiction to review state court decisions in the United States Supreme Court. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir.2004) (citation omitted). Because it grants jurisdiction to the Supreme Court, section 1257 impliedly prohibits lower federal courts from reviewing state court decisions. Id. Stated simply, the Rooker-Feldman doctrine bars suits “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d" }, { "docid": "22867688", "title": "", "text": "produced those judgments. Nor does Kougasian seek damages based on any alleged legal error by the state courts. Rather, she seeks damages based on the alleged wrongful behavior of the defendants. The district court dismissed Kouga-sian’s complaint for want of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) pursuant to the Rook-er-Feldman doctrine. The court noted that the plaintiffs made “almost identical allegations of fraud and abuse of process as those found in the [second amended complaint] in Kougasian II.” The district court therefore concluded that Kougasian was in effect attempting to appeal the judgment of the state court, which is forbidden by Rooker-Feldman. We review de novo a district court’s dismissal under Rooker-Feldman. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). II. The Rooker-Feldman Doctrine The Rooker-Feldman doctrine has evolved from the two Supreme Court cases from which its name is derived. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Rooker-Feldman prohibits a federal district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment. Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir.2003). In part, this prohibition arises through a negative inference from 28 U.S.C. § 1257, which grants jurisdiction to review a state court judgment in the United States Supreme Court. In re Gruntz, 202 F.3d 1074, 1078 (9th Cir.2000) (en banc). That is, while § 1257 explicitly authorizes the United States Supreme Court to hear an appeal from a state court judgment, it impliedly prohibits the lower federal courts from doing so. If a plaintiff brings a de facto appeal from a state court judgment, Rooker-Feldman requires that the district court dismiss the suit for lack of subject matter jurisdiction. Id. Determining what constitutes a forbidden de facto appeal, however, has sometimes proven difficult for the lower courts. See Noel, 341 F.3d at 1161-62 (collecting cases). In Noel v. Hall, decided after the district court’s decision in" }, { "docid": "6077701", "title": "", "text": "unconstitutional. Canatella alleged that facially and as applied, the challenged provisions are unconstitutionally vague and overbroad, in violation of the First and Fourteenth Amendments. Canatella also alleged that the provisions deprive him of his “judicial proceedings” privilege under color of state law. In raising these claims, Canatella alleged a strong likelihood of further State Bar disciplinary charges for a sanction entered against him by a magistrate judge on January 14, 2000, in a sepa rate action. The district court dismissed Canatella’s complaint under the Rooker-Feldmcm doctrine and on Younger abstention grounds, further questioning whether Canatella had standing and whether his claims were ripe for review. Canatella now appeals. Two events of significance have occurred after Canatella filed the immediate appeal. First, this court vacated the magistrate judge’s sanction order on January 25, 2001, with the mandate issuing on February 20, 2001. See Chan v. Bay Area Air Quality Management Dist., 2 Fed.Appx. 861, 867 (9th Cir.2001). Second, on March 18, 2001, Canatella completed his probationary sentence under the stipulated settlement and final order issued by the Supreme Court of California in the original State Bar proceedings. II. ANALYSIS A. The district court held that it lacked jurisdiction over Canatella’s § 1983 claims under the Rooker-Feldman doctrine, which derives from Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The Rooker-Feldman doctrine is jurisdictional, see Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 937 (9th Cir.1998), and subject to de novo review. See Garvey v. Roberts, 203 F.3d 580, 587 (9th Cir.2000). Feldman holds that 28 U.S.C. § 1257 prevents federal courts from asserting jurisdiction over final “judicial” determinations by state supreme courts. Id. at 476, 103 S.Ct. 1303. The district court determined that Cana-tella’s § 1983 suit was, in effect, an action to review the California Supreme Court’s final disciplinary order approving the settlement between Canatella and the State Bar. The court reasoned that because Can-atella was still on probation, a grant of his" }, { "docid": "22885940", "title": "", "text": "in federal district court under 42 U.S.C. § 1983, challenging the constitutionality of the Vexatious Litigant Statute. He named as defendants the State of California, the Judicial Council of California, Chief Justice George, Justice Strankman, and Ms. Silva (collectively, but somewhat imprecisely, the “State Defendants”). He also named Judges Garcia, Quidachay, and Chiantelli (collectively the “Superior Court Judge Defendants”). Wolfe sued each of the individual defendants in both their individual and official capacities. On July 27, 2001, the Superior Court Judge Defendants moved to dismiss Wolfe’s complaint. They argued that the Rooker-Feldman doctrine barred jurisdiction, that Wolfe lacked Article III standing, that judicial immunity and/or the Eleventh Amendment barred suit against them, and that the district court should abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). On October 26, 2001, the State Defendants also moved for dismissal, raising similar arguments. On March 29, 2002, the district court granted both motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, pursuant to Rooker-Feldman. The court also indicated that, in the alternative, if Wolfe was involved in ongoing state court proceedings, it would abstain under Younger. Finally, the court expressed “profound doubts” as to whether Wolfe’s claims could be brought against the State of California and the Judicial Council in light of state sovereign immunity. Wolfe timely appeals. We review the district court’s dismissal for lack of subject matter jurisdiction under Rooker-Feldman de novo. Noel v. Hall, 341 F.3d 1148, 1154(9th Cir.2003). We may affirm the district court’s dismissal on any ground supported by the record. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1153 (9th Cir.2000). II. Facial and Factual Attacks on Jurisdiction As a preliminary matter, we note that in reviewing a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, we take the allegations in the plaintiffs complaint as true. Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 944-5 (9th Cir.1999). Citing Trentacosta v. Frontier Pacific Aircraft Industries, Inc., 813 F.2d 1553, 1558 (9th Cir.1987), the State Defendants ask us" }, { "docid": "12592622", "title": "", "text": "federal court review and rejection of that judgment. Skinner v. Switzer, — U.S. -, 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011). To determine whether the Rooker-Feld-man bar is applicable, a district court first must determine whether the action contains a forbidden de facto appeal of a state court decision. Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir.2003). A de facto appeal exists when “a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision.” Id. at 1164. In contrast, if “a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.” Id. Thus, even if a plaintiff seeks relief from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also alleges a legal error by the state court. Maldonado v. Harris, 370 F.3d 945, 950 (9th Cir.2004); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir.2004) (“[A] plaintiff must seek not only to set aside a state court judgment; he or she must also allege a legal error by the state court as the basis for that l'elief”). If “a federal plaintiff seeks to bring a forbidden de facto appeal, ... that federal plaintiff may not seek to litigate an issue that is ‘inextricably intertwined’ with the state court judicial decision from which the forbidden de facto appeal is brought.” Noel, 341 F.3d at 1158. The “inextricably intertwined” language from Feldman is not a test to determine whether a claim is a de facto appeal, but is rather a second and distinct step in the Rooker-Feldman analysis. See id. Should the action not contain a forbidden de facto appeal, the Rooker-Feldman inquiry ends. See Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1030 (9th Cir.2005). The court erred by dismissing Plaintiffs’ claims for retrospective relief under the Rooker-Feldman doctrine. Although Plaintiffs sought relief designed to remedy injuries suffered from a state court judgment, they did not" }, { "docid": "22261185", "title": "", "text": "claim preclusion. Finally, the district court found that, to the extent they were ripe for review, all of Maldonado’s claims were barred by the Rooker-Feldman doctrine. Maldonado filed a timely notice of appeal. II. Standard of Review We review a district court’s dismissal of an action de novo, whether the dismissal is based on claim preclusion, ripeness or the Rooker-Feldman doctrine. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.2002); Ross v. Alaska, 189 F.3d 1107, 1114 (9th Cir.1999); Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 936 (9th Cir.1998). We may affirm a dismissal on any basis supported by the record, even if the district court relied on different grounds or reasoning. Groten v. California, 251 F.3d 844, 851 (9th Cir.2001). III. Discussion A. Rooker-Feldman Doctrine The district court found that all of Maldonado’s challenges to COAA were barred by the Rooker-Feldman doctrine. The basic premise of Rooker-Feldman is that “a federal district court does not have subject matter jurisdiction.to hear a direct appeal from the final judgment of a state court.” Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). Rooker-Feldman recognizes the implicit statutory structure established by Congress, which has determined that the United States Supreme Court is the only federal court with jurisdiction to hear appeals from state courts. See 28 U.S.C. § 1257; Noel, 341 F.3d at 1154-55. We recently recognized that, while the basic premise of the Rooker-Feldman doctrine is relatively simple, it has not been applied consistently in the lower federal courts. Noel, 341 F.3d at 1162-63. In Noel, we set' forth a general formulation of Rooker-Feldman to attempt to clarify the scope of the doctrine. We explained that [I]f a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court. If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction. Id. at 1164. We further noted that" }, { "docid": "12592619", "title": "", "text": "Department will enforce the ... Ordinances against homeless people at night when shelter space is unavailable.” Accordingly, the court found that adoption of the Special Order mooted the nighttime enforcement aspect of Plaintiffs’ Eighth Amendment claims for prospective relief. The court noted that its “decision does not bar Plaintiffs from bringing a future action contending that Defendants are not foEowing the policy set forth in the Special Order.” The court also concluded that the Rook-er-Feldman doctrine barred consideration of Plaintiffs’ claims for retrospective relief, including Plaintiffs’ request for an order compelling expungement of Plaintiffs’ criminal records and Plaintiffs’ request for damages. The court reasoned that because Plaintiffs’ requested relief was “designed to compensate Plaintiffs for the injuries occasioned by the state-court judgments,” their retrospective claims “would serve as an end-run around the state court appellate process,” and “serve as a de facto appeal from the state court.” Further, Plaintiffs’ claims would have required the court “to review and reject [the] judgment in each Plaintiffs [criminal] case.” Thus, the court found Rook-er-Feldman prohibited examination of the merits of Plaintiffs’ retrospective claims. The court granted summary judgment to Defendants on the remainder of Plaintiffs’ claims and dismissed the amended complaint. This timely appeal followed. Plaintiffs do not appeal the court’s decision that their Eighth Amendment claims concerning daytime enforcement of the Sleeping Ordinance failed as a matter of law. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1137 n. 13 (9th Cir.2012) (noting that an appellant waives appeal of an issue not raised in an opening brief). Rather, Plaintiffs’' appeal focuses on the court’s findings with regard to mootness and the RookerFeldman doctrine. STANDARD OF REVIEW We review an application of the Rooker-Feldman doctrine de novo. Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir.2010). We also review de novo questions of Article III justiciability, including mootness. Sieira Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011). Factual determinations underlying the district court’s decision are reviewed for clear error. Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th Cir.2010). DISCUSSION We first discuss the court’s dismissal of Plaintiffs’ Eighth Amendment" }, { "docid": "20160990", "title": "", "text": "“contaminating or otherwise polluting [Parcel B]”; (4) breach of fiduciary duties against the BLM for, among other things, failing to preserve the original character of Parcel B; and (5) civil rights violations under 42 U.S.C. §§ 1983 and 1985 against all defendants for conspiring among themselves to destroy Parcel B. In his prayer for relief, Jachetta requested an injunction and monetary damages equivalent to the fair market value of the resources extracted from his land. The BLM filed a motion to dismiss, arguing that sovereign immunity barred Ja-chetta’s action against the United States, that the action was barred by the statute of limitations, and that Jachetta’s complaint failed to state claims upon which relief can be granted. Alaska also filed a motion to dismiss, which argued only that the Eleventh Amendment barred Jachet-ta’s action against the State. The district court held that federal sovereign immunity barred Jachetta’s action against the BLM and dismissed Jachetta’s action against the BLM for lack of subject matter jurisdiction. The district court also held that Alaska was immune from suit under the Eleventh Amendment and granted Alaska’s motion to dismiss. Jachetta has timely appealed the district court’s rulings to this court. JURISDICTION AND STANDARD OF REVIEW Although Jachetta’s action against Alyeska is still pending before the district court, the district court entered two judgments—one dismissing Jachetta’s action against the BLM, and one dismissing Ja-chetta’s action against Alaska—in which it expressly certified that there was no just reason to delay the entry of judgment in favor of these two parties. Because the district court complied with Federal Rule of Civil Procedure 54(b), we have jurisdiction under 28 U.S.C. § 1291. Nat'l Ass’n of Homs Builders v. Norton, 340 F.3d 835, 840 (9th Cir.2003). We review de novo the district court’s dismissals on the grounds of state and federal sovereign immunity. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.2004); Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.2004). DISCUSSION This appeal raises two issues: (1) whether federal sovereign immunity bars Jaehet-ta’s action against the BLM; and (2) whether the Eleventh Amendment bars" }, { "docid": "12592621", "title": "", "text": "claims for retrospective relief under the RookerFeldman doctrine. We determine the Rooker-Feldman doctrine is inapplicable because Plaintiffs’ suit is not a forbidden de facto appeal. We then discuss the court’s dismissal of Plaintiffs’ Eighth Amendment claims for prospective relief on mootness grounds. We conclude Defendants have failed to meet their heavy burden of demonstrating that the Special Order eliminates all reasonable expectations of recurrence of the allegedly unconstitutional enforcement of the Ordinances. Because we hold that jurisdiction exists over Plaintiffs’ Eighth Amendment claims for retrospective and prospective relief, we remand for a consideration of the merits of these claims. A. Rooker-Feldman The court dismissed Plaintiffs’ claims for retrospective relief under the Rooker-Feldman doctrine after finding those “requests for relief are designed to compensate Plaintiffs for the injuries occasioned by the state-court judgments.” On appeal, Plaintiffs contend the court incorrectly ap plied the Rooker-Feldman doctrine. We agree. The Rooker-Feldman doctrine forbids a losing party in state court from filing suit in federal district court complaining of an injury caused by a state court judgment, and seeking federal court review and rejection of that judgment. Skinner v. Switzer, — U.S. -, 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011). To determine whether the Rooker-Feld-man bar is applicable, a district court first must determine whether the action contains a forbidden de facto appeal of a state court decision. Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir.2003). A de facto appeal exists when “a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision.” Id. at 1164. In contrast, if “a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.” Id. Thus, even if a plaintiff seeks relief from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also alleges a legal error by the state court. Maldonado v. Harris, 370 F.3d 945, 950 (9th Cir.2004); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th" }, { "docid": "22867689", "title": "", "text": "1303, 75 L.Ed.2d 206 (1983). Rooker-Feldman prohibits a federal district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment. Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir.2003). In part, this prohibition arises through a negative inference from 28 U.S.C. § 1257, which grants jurisdiction to review a state court judgment in the United States Supreme Court. In re Gruntz, 202 F.3d 1074, 1078 (9th Cir.2000) (en banc). That is, while § 1257 explicitly authorizes the United States Supreme Court to hear an appeal from a state court judgment, it impliedly prohibits the lower federal courts from doing so. If a plaintiff brings a de facto appeal from a state court judgment, Rooker-Feldman requires that the district court dismiss the suit for lack of subject matter jurisdiction. Id. Determining what constitutes a forbidden de facto appeal, however, has sometimes proven difficult for the lower courts. See Noel, 341 F.3d at 1161-62 (collecting cases). In Noel v. Hall, decided after the district court’s decision in this case, we attempted to give guidance to the district courts in the application of Rooker-Feld-man. We provided the following • general formulation of the doctrine: If a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court. If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction. If there is simultaneously pending federal and state court litigation between the two parties dealing with the same or related issues, the federal district court in some circumstances may abstain or stay proceedings; or if there has been state court litigation that has already gone to judgment, the federal suit may be claim-[or issue-]precluded under [28 U.S.C.] § 1738. -But in neither of these circumstances does Rook-er-Feldman bar jurisdiction. Id. at 1164. Rooker-Feldman thus applies only when the federal plaintiff both asserts as" }, { "docid": "12592620", "title": "", "text": "merits of Plaintiffs’ retrospective claims. The court granted summary judgment to Defendants on the remainder of Plaintiffs’ claims and dismissed the amended complaint. This timely appeal followed. Plaintiffs do not appeal the court’s decision that their Eighth Amendment claims concerning daytime enforcement of the Sleeping Ordinance failed as a matter of law. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1137 n. 13 (9th Cir.2012) (noting that an appellant waives appeal of an issue not raised in an opening brief). Rather, Plaintiffs’' appeal focuses on the court’s findings with regard to mootness and the RookerFeldman doctrine. STANDARD OF REVIEW We review an application of the Rooker-Feldman doctrine de novo. Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir.2010). We also review de novo questions of Article III justiciability, including mootness. Sieira Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011). Factual determinations underlying the district court’s decision are reviewed for clear error. Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th Cir.2010). DISCUSSION We first discuss the court’s dismissal of Plaintiffs’ Eighth Amendment claims for retrospective relief under the RookerFeldman doctrine. We determine the Rooker-Feldman doctrine is inapplicable because Plaintiffs’ suit is not a forbidden de facto appeal. We then discuss the court’s dismissal of Plaintiffs’ Eighth Amendment claims for prospective relief on mootness grounds. We conclude Defendants have failed to meet their heavy burden of demonstrating that the Special Order eliminates all reasonable expectations of recurrence of the allegedly unconstitutional enforcement of the Ordinances. Because we hold that jurisdiction exists over Plaintiffs’ Eighth Amendment claims for retrospective and prospective relief, we remand for a consideration of the merits of these claims. A. Rooker-Feldman The court dismissed Plaintiffs’ claims for retrospective relief under the Rooker-Feldman doctrine after finding those “requests for relief are designed to compensate Plaintiffs for the injuries occasioned by the state-court judgments.” On appeal, Plaintiffs contend the court incorrectly ap plied the Rooker-Feldman doctrine. We agree. The Rooker-Feldman doctrine forbids a losing party in state court from filing suit in federal district court complaining of an injury caused by a state court judgment, and seeking" }, { "docid": "23276695", "title": "", "text": "for the bar exam. The plaintiffs then filed suit in federal court. The plaintiffs sought declaratory judgments that the rule violated the Fifth Amendment, and injunctions that would require the defendants to permit them to take the examination. One of the plaintiffs also sought the alternative relief of admission to the bar or a determination of whether his training provided him the same competence as graduates of accredited law schools. See Feldman, 460 U.S. at 468-69, 103 S.Ct. 1303. The appeals were consolidated and the Supreme Court held that the suit was a de facto appeal of the local court order to the extent that it sought review of the local court’s denial of waiver. As such the district court lacked subject matter jurisdiction to hear the appeal. Id. at 482, 103 S.Ct. 1303. Like Feldman, Janis did not argue that either Judy or Hilton caused her injury, claims that would not be within the limits of Rooker-Feldman. See Noel, 341 F.3d at 1163. Rather, Janis complained of a “harm caused by a state court judgment that directly withholds a benefit from[her] ... based on an allegedly erroneous ruling by that court.” Id. Her claim therefore fits within the narrow constraints of the Ninth Circuit’s application of the Rooker-Feldman doctrine. We agree with the district court that it lacked jurisdiction to hear the merits of Janis’s claims against Hilton and Judy because Janis’s suit was a forbidden de facto appeal of a state court judgment. Janis also argues that Rooker-Feldman does not apply to state court orders that conflict with ERISA because ERISA grants exclusive jurisdiction to the federal courts. Rooker-Feldman’s jurisdictional bar is one of congressional intent and not constitutional mandate. Mozes v. Mozes, 239 F.3d 1067, 1085 n. 55 (9th Cir.2001). Where Congress explicitly grants exclusive jurisdiction to federal courts, Rooker-Feldman cannot bar collateral review of a state court order in federal court. See In re Gruntz, 202 F.3d 1074, 1078-79 (9th Cir.2000) (en banc) (establishing that collateral review of state court proceedings in habeas and bankruptcy cases is not jurisdictionally barred under Rooker-Feldman); see also Mozes, 239" }, { "docid": "11460784", "title": "", "text": "Cir.1984), cert. denied 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985) (emphasis in the original). In addition, “[i]f the constitutional claims presented to a United States district court are inextricably intertwined with the state court’s denial in a judicial proceeding of a particular plaintiff’s application for admission to the state bar,” Feldman at 483-484, n. 16, 103 S.Ct. at 1315 n. 16, the district court does not have subject matter jurisdiction. In his first cause of action, plaintiff asserts that his procedural due process rights were violated because (1) the Committee did not provide reasons or notice as to why plaintiff failed the California Bar Examination, and (2) neither the Committee nor the California Supreme Court provided plaintiff an opportunity to be heard or to present a claim or defense. This count asks the Court to review directly the California Supreme Court’s determination, and to overrule it by ordering that court to admit plaintiff to its bar. This demand is inextricably intertwined with the California court’s denial, and therefore this Court is without jurisdiction to address it. The remaining claims do not require any direct review of plaintiff’s application to the California Supreme Court. They challenge the California Bar Examination as unconstitutional per se. Therefore, this Court has subject matter jurisdiction over these general challenges. 2. The Eleventh Amendment. The Committee of Bar Examiners asserts that the Court’s jurisdiction is barred by the eleventh amendment to the United States Constitution. The eleventh amendment prevents federal courts from asserting jurisdiction in suits brought against the states. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984). Such sovereign immunity extends to the Committee as an agency of the state, Lupert v. California State Bar, 761 F.2d 1325, 1327 (9th Cir.), cert. denied 474 U.S. 916, 106 S.Ct. 241, 88 L.Ed.2d 251 (1985); Ginter v. State Bar of Nevada, 625 F.2d 829, 830 (9th Cir.1980), and to the California Supreme Court. The eleventh amendment does not prohibit prospective, nonmonetary injunc-tive or declaratory relief against state officials to protect federal rights. Quern" }, { "docid": "23276692", "title": "", "text": "v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). It stands for the relatively straightforward principle that federal district courts do not have jurisdiction to hear de facto appeals from state court judgments. Noel, 341 F.3d at 1155. The jurisdictional prohibition arises from a negative inference drawn from 28 U.S.C. § 1257 which grants jurisdiction to review state court decisions in the United States Supreme Court. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir.2004) (citation omitted). Because it grants jurisdiction to the Supreme Court, section 1257 impliedly prohibits lower federal courts from reviewing state court decisions. Id. Stated simply, the Rooker-Feldman doctrine bars suits “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). In practice, the Rooker-Feldman doctrine is a fairly narrow preclusion doctrine, separate and distinct from res judicata and collateral estoppel. See Noel, 341 F.3d at 1162-64. We have previously explained how federal courts should distinguish a forbidden de facto appeal of a state court decision that is barred by Rooker-Feldman from a suit that is barred by other preclusion principles. A suit brought in federal district court is a “de facto appeal” forbidden by Rooker-Feldman when “a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision.” Id. at 1164. In contrast, if a plaintiff “asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.” Id. Although it is often misapplied, we agree with the district court that Rooker-Feldman is applicable in this case, and therefore the district court was correct- in dismissing Janis’s claims for lack of jurisdiction. According to her amended complaint, Janis claimed" }, { "docid": "23276690", "title": "", "text": "and, in any event, that the Rooker-Feldman doctrine required the court to dismiss the suit for lack of jurisdiction. This appeal originates from the most recent federal suit filed by Janis against Judy, Hilton, and IATSE. Janis brought suit under 29 U.S.C. § 1132(a)(3) seeking “to enjoin any act or practice which violates any provision [of ERISA] or the terms of the plan.” In response to Janis’s suit, IATSE Trustees filed a cross-claim against Judy seeking declaratory relief. The district court concluded that the Rooker-Feldman doctrine barred Janis’s suit against Judy and Hilton. The court also concluded that neither Rooker-Feldman nor res judicata barred IATSE’s claim because it was not a party to the prior suits and was not in privity with Janis. On the merits, the district court concluded that ERISA does not preclude a state court from issuing a QDRO substituting an alternate payee for a surviving spouse after a plan participant’s retirement. IATSE appeals the district court’s denial of summary judgment and subsequent dismissal of its complaint against Judy. Janis appeals the district court’s decision that it lacked subject matter jurisdiction over Janis’s claims against Hilton and Judy. We consider both appeals together because they arise from the same factual background. II. Discussion We review an application of the Rooker-Feldman doctrine de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). The interpretation of ERISA, including whether ERISA preempts state law, is a question of law which we also review de novo. Metropolitan Life Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir.2006); Cleghorn v. Blue Shield of California, 408 F.3d 1222, 1225 (9th Cir.2005). A. The Rooker-Feldman Doctrine and Preclusion We first consider whether any preclusion doctrine prevents Janis from bringing her claims against Judy and Hilton, or IATSE from bringing its declaratory judgment action. We agree with the district court and conclude that the district court lacked jurisdiction, under the Rooker-Feldman doctrine, to adjudicate Janis’s claims against Judy and Hilton, but that IATSE is not precluded from asserting its cross-claim here. The Rooker-Feldman doctrine takes its name from two Supreme Court cases: Rooker" }, { "docid": "22885943", "title": "", "text": "Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003), cert. denied, — U.S. -, 124 S.Ct. 2067, 158 L.Ed.2d 618 (2004)). In this case, the defendants argue that the allegations in Wolfe’s complaint are insufficient on their face to establish subject matter jurisdiction. Whether subject matter jurisdiction exists therefore does not depend on resolution of a factual dispute, but rather on the allegations in Wolfe’s complaint. We assume Wolfe’s allegations to be true and draw all reasonable inferences in his favor. See Fed.R.Civ.P. 12(b)(1); Savage, 343 F.3d at 1039 n. 1; Saridakis v. United Airlines, 166 F.3d 1272, 1274 n. 1 (9th Cir.1999). We construe the complaint liberally because it was drafted by a pro se plaintiff. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987). III. Rooker-Feldman The Rooker-Feldman doctrine evolved from the two Supreme Court cases from which it takes its name. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303,- 75 L.Ed.2d 206 (1983). Rooker-Feldman bars federal district courts “from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir.2004). In Noel v. Hall, we explained the doctrine as follows: If a federal plaintiff asserts as a -legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court. If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction. 341 F.3d at 1164. The district court read Wolfe’s complaint as a challenge to prior state court decisions and concluded that Wolfe’s suit was barred by Rooker-Feldman. However, since there was no vexatious litigant order entered against Wolfe at the time he filed in district court, there was no state court judgment from which he could have been seeking relief. Instead of" }, { "docid": "6077702", "title": "", "text": "the Supreme Court of California in the original State Bar proceedings. II. ANALYSIS A. The district court held that it lacked jurisdiction over Canatella’s § 1983 claims under the Rooker-Feldman doctrine, which derives from Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The Rooker-Feldman doctrine is jurisdictional, see Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 937 (9th Cir.1998), and subject to de novo review. See Garvey v. Roberts, 203 F.3d 580, 587 (9th Cir.2000). Feldman holds that 28 U.S.C. § 1257 prevents federal courts from asserting jurisdiction over final “judicial” determinations by state supreme courts. Id. at 476, 103 S.Ct. 1303. The district court determined that Cana-tella’s § 1983 suit was, in effect, an action to review the California Supreme Court’s final disciplinary order approving the settlement between Canatella and the State Bar. The court reasoned that because Can-atella was still on probation, a grant of his requested injunctive and declaratory relief would effectively nullify the California Supreme Court’s approval of Canatella’s probationary status. The court was rightly concerned that asserting jurisdiction might require review of a final state court decision, particularly one potentially subject to revision in the state court system, cf. Richardson v. District of Columbia Court of Appeals, 83 F.3d 1513, 1515 (D.C.Cir.1996), but this situation no longer obtains. On March 18, 2001, Canatella completed his probationary sentence under the stipulated discipline approved by the Supreme Court of California. He has done so without incurring further disciplinary sanction. Review of his First and Fourteenth Amendment claims no longer raises the specter of review of a final state court decision, and the question of whether Rooker-Feldman applies is moot. B. The district court also abstained from jurisdiction on the basis of Younger v. Harris. This court reviews de novo whether abstention is required. Green v. City of Tucson, 255 F.3d 1086 (9th Cir.2001) (en banc). Younger and its progeny teach that federal courts may not, where circumstances dictate, exercise jurisdiction" }, { "docid": "23193101", "title": "", "text": "case, combined with the inference of finality arising from the court’s failure to grant leave to amend and the court’s rejection of a potential, alternative claim, lead us to conclude that the court intended its order to be final and appealable. Accordingly, we have jurisdiction under 28 U.S.C. § 1291. II. Jurisdictional Bar to Cooper’s Claims The Rooker-Feldman doctrine instructs that federal district courts are without jurisdiction to hear direct appeals from the judgments of state courts. Congress, in 28 U.S.C. § 1257, vests the United States Supreme Court, not the lower federal courts, with appellate jurisdiction over state court judgments. Lance v. Dennis, 546 U.S. 459, 463, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) (per curiam). Accordingly, “[r]eview of such judgments may be had only in [the Supreme] Court.” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The doctrine bars a district court from exercising jurisdiction not only over an action explicitly styled as a direct appeal, but also over the “de facto equivalent” of such an appeal. Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir.2003). To determine whether an action functions as a de facto appeal, we “pay close attention to the relief sought by the federal-court plaintiff.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir.2003) (internal quotation marks and citation omitted). “It is a forbidden de facto appeal under Rooker-Feldman when the plaintiff in federal district court complains of a legal wrong allegedly committed by the state court, and seeks relief from the judgment of that court.” Noel, 341 F.3d at 1163; see also Skinner v. Switzer, — U.S. -, 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011) (emphasizing that the Rooker-Feld-man doctrine is limited to cases “brought by state-court losers ... inviting district court review and rejection of the state court’s judgments”) (internal quotation marks, alteration, and citation omitted). We recognize that the Supreme Court has been very sparing in its invocation of the doctrine, see Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d" } ]

[ { "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": "5481679", "title": "", "text": "contend that their negligence and fiduciary duty claims against Schmidt are such claims. We conclude that the Barton doctrine continues to apply regardless of whether the plaintiffs’ claims qualify as Stem claims, for two reasons. First, the Supreme Court has directed appeals courts to abstain from concluding that one of the Court’s later cases has, by implication, limited or overruled one of its earlier cases. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). The plaintiffs’ claim that Stem silently limits Barton is exactly the sort of limitation-by-implication the Court prohibits. Because the Barton doctrine is directly applicable to this case, we must apply that doctrine and allow the Court to impose, or decline to impose, limitations based on Stem. Second, the Court has recently suggested that Stem would not, in fact, limit the Barton doctrine when it stated that “Stem did not ... decide how bankruptcy or district courts should proceed when a ‘Stem claim’ is identified.” Executive Benefits Ins. Agency v. Arkison, — U.S. —, 134 S.Ct. 2165, 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" }, { "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": "21021075", "title": "", "text": "did not have subject matter jurisdiction over his cause of action. B. Federal vs. State Causes of Action Carter argues that the Barton doctrine requires parties to obtain leave of the bankruptcy court only when they wish to pursue a state court remedy. We disagree, and hold that when leave is required, it is required before pursuing remedies in either state or other federal courts. We find no reason to distinguish between instances where the trustee is sued in state court and those in which the trustee is sued in federal court. See Kashani v. Fulton (In re Kashani), 190 B.R. 875, 885 (9th Cir. BAP 1995) (“[L]eave to sue the trustee is required to sue in those federal courts other than the bankruptcy court which actually approves the trustee’s appointment.”); In re Krikava, 217 B.R. 275, 279 (Bankr.D.Neb.1998) (“Consent of the appointing bankruptcy court is required even when the plaintiff seeks to sue in another federal court.”). C. “Related to” Bankruptcy Requirement There also is no merit to Carter’s assertion that his tort claims — breach of fiduciary duty and reasonable care- — are “unrelated to” and “outside the scope” of the bankruptcy proceeding because they do not arise directly from substantive provisions of the Bankruptcy Code. Carter posits the theory that because his claims are unrelated to the bankruptcy proceeding, the bankruptcy court lacks jurisdiction over his lawsuit and, therefore, he was not required to obtain leave of the bankruptcy court before bringing his suit in district court. We disagree. The bankruptcy court has jurisdiction over Carter’s claims because his breach of fiduciary duty and reasonable care claims are “related to” and “within the scope” of the bankruptcy proceeding. Because Carter’s claims are related to the bankruptcy proceeding, we need not determine whether leave of the bankruptcy court is required when a debtor sues a trustee for a tort completely “unrelated to” and “outside the scope” of the bankruptcy proceeding. A proceeding is within the bankruptcy jurisdiction, defined by 28 U.S.C. § 1334(b), if it “arises under” the Bankruptcy Code or “arises in” or is “related to” a" }, { "docid": "10306457", "title": "", "text": "a trustee in the appointing court. For example, in Gollday v. Brady (In re Coburn), No. 00-40496, 2006 WL 2010852, at *2 (Bankr. N.D.Cal. July 6, 2006), the court stated that the Barton doctrine only applies to situations where a party seeks to sue a trustee in the non-appointing court. Similarly, the bankruptcy appellate panel in Kashani v. Fulton (In re Kashani), 190 B.R. 875, 888 (9th Cir. BAP 1995) stated that “the nonappointing court may not entertain suits against the trustee ... without leave from the appointing court.” However, the Kashani court further stated that leave is not required for a party to bring suit against the trustee in the bankruptcy court. Id. These decisions are consistent with the Supreme Court’s opinion in Barton. There, the Supreme Court specifically stated that its opinion applied to situations where one court has appointed a receiver and suit is brought against that receiver in another court. Barton, 104 U.S. at 136 (“We therefore declare it as our opinion that when the court of one State has ... property in its possession for administration as trust assets, and has appointed a receiver ..., a court of another State has not jurisdiction, without leave of the court by which the receiver was appointed.”). So, from this Court’s perspective, when suit is brought in the appointing court, as here, the Barton doctrine is not implicated. Moreover, this Court is persuaded by the policy argument advanced in CIT Communications Finance Corps. v. Maxwell (In re marchFIRST, Inc.), No. 08-CV-121, 2008 WL 4287634 (N.D.Ill. Sept. 12, 2008). In marchFIRST, CIT leased phone equipment to the debtor. Id. at *1. CIT filed an adversary proceeding against the Chapter 7 trustee, alleging that the trustee breached his fiduciary duty by, inter alia, ignoring CIT's request for the return of the phone equipment. Id. at *2. The trustee moved to dismiss, arguing that CIT had not sought leave before filing its suit against him. Id. While the bankruptcy court agreed with the trustee that the Barton doctrine barred the suit, the district court disagreed, stating: When a party sues the" }, { "docid": "13284101", "title": "", "text": "without court approval, the trustee ... may prosecute or may enter an appearance and defend any pending action or proceeding by or against the debtor, or commence and prosecute any action or proceeding in behalf of the estate before any tribunal.” This rule establishes only that a trustee may, with or without court approval, act as a representative of the estate in litigation; it does not address the circumstances under which a third party may bring suit against the trustee. See id. “When the interpretation of federal statutes fails to yield specific answers to procedural issues, federal courts have implicit authority to supply the answers.” In re Linton, 136 F.3d at 545. Thus, although § 323(b) recognizes that a trustee has the capacity to'be sued, the procedures which must be followed before commencing any suit against the trustee not otherwise authorized by 28 U.S.C. § 959(a) have been left to case law. See In re Kashani, 190 B.R. 875, 884 n. 9 (9th Cir. BAP 1995) (explaining that § 323(b) “merely indicates the proper party to sue for purposes of standing”). We therefore reject CGL’s argument that the text of § 323(b) indicates a congressional intent to abrogate the Barton doctrine. In sum, we hold that the Barton doctrine remains valid, and therefore, subject to the exception in § 959(a), 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. B. Although the Bankruptcy Court expressed skepticism as to whether Barton applied, it nevertheless held a hearing on CGL’s motion for leave, and ultimately granted the motion. The Bankruptcy Court therefore complied with Barton and we will consider whether its decision to grant CGL’s motion for leave constituted an abuse of discretion. In re Linton, 136 F.3d at 546; In re Beck Indus., 725 F.2d at 889. Under the deferential abuse of discretion standard, we will reverse “only where the ... court’s decision is arbitrary, fanciful, or clearly unreasonable — in short, where no reasonable person would adopt the ..." }, { "docid": "4551321", "title": "", "text": "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 to hear a claim when leave of the bankruptcy court is not sought. When Harris’s case was removed to the appointing bankruptcy court, all problems under the Barton doctrine vanished. Therefore, the district court erred in affirming the bankruptcy court’s dismissal of Harris’s suit for lack of subject matter jurisdiction under the Barton doctrine. Id. at 742. Without in any way disparaging the utility of an “it’s here now, let’s just deal with it” approach, the fact is that there are many doctrines that have the effect of punishing the unwary, such as filing requirements, statutes of limitations and repose, etc. Despite how inefficiently and even unfairly those policies seem to work sometimes, they continue to be enforced because they implement major policies deemed to be of overriding importance. So here trustees should not face personal liability — both the cost of defense and the possibility of a judgment — unless the action has been filed in the first instance in the bankruptcy court or there has been a determination by the bankruptcy court that" }, { "docid": "21021074", "title": "", "text": "the court’s control by virtue of the Bankruptcy Code.” 136 F.3d at 545. In addition, the policy behind this leave of court requirement was well-stated by the Seventh Circuit: 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 peo- pie 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 bankruptcy judges to monitor the work of the trustees more effectively. Linton, 136 F.3d at 545. Plaintiffs suit is a run-of-the-mill Barton case. Carter sued Defendants in district court for breaches of fiduciary duties stemming from their official bankruptcy duties. He needed leave of the bankruptcy court, and absent that leave, the district court correctly found that it did not have subject matter jurisdiction over his cause of action. B. Federal vs. State Causes of Action Carter argues that the Barton doctrine requires parties to obtain leave of the bankruptcy court only when they wish to pursue a state court remedy. We disagree, and hold that when leave is required, it is required before pursuing remedies in either state or other federal courts. We find no reason to distinguish between instances where the trustee is sued in state court and those in which the trustee is sued in federal court. See Kashani v. Fulton (In re Kashani), 190 B.R. 875, 885 (9th Cir. BAP 1995) (“[L]eave to sue the trustee is required to sue in those federal courts other than the bankruptcy court which actually approves the trustee’s appointment.”); In re Krikava, 217 B.R. 275, 279 (Bankr.D.Neb.1998) (“Consent of the appointing bankruptcy court is required even when the plaintiff seeks to sue in another federal court.”). C. “Related to” Bankruptcy Requirement There also is no merit to Carter’s assertion that his tort claims" }, { "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": "10306456", "title": "", "text": "done in the trustee’s official capacity.”); McDaniel v. Blust, 668 F.3d 153, 157 (4th Cir.2012) (“This principal has been extended to suits against bankruptcy trus-tees_”); Indus. Clearinghouse, Inc. v. Mims (In re Coastal Plains, Inc.), 326 B.R. 102, 111 (Bankr.N.D.Tex.2005) (“The Barton Doctrine ... was expanded to include claims against bankruptcy trustees.”). At first blush, then, it appears that this Court would not have jurisdiction to hear the Counterclaim because it is against Trustees Cunningham, Mims, and Reed, and RPD has not sought leave to bring the Counterclaim. However, RPD argues that because the Counterclaim was asserted in the court that appointed Trustees Cunningham, Mims, and Reed, “it would be absurd to conclude that this Court lacks jurisdiction over those claims-” Objection of RPD Holdings, LLC to Trustee’s Motion to Dismiss [Dkt. No. 64] at 2. Thus, the issue before this Court is whether the Barton doctrine applies to suits brought against a trustee in the appointing court. This Court agrees with those courts that have concluded that a party-does not need leave to sue a trustee in the appointing court. For example, in Gollday v. Brady (In re Coburn), No. 00-40496, 2006 WL 2010852, at *2 (Bankr. N.D.Cal. July 6, 2006), the court stated that the Barton doctrine only applies to situations where a party seeks to sue a trustee in the non-appointing court. Similarly, the bankruptcy appellate panel in Kashani v. Fulton (In re Kashani), 190 B.R. 875, 888 (9th Cir. BAP 1995) stated that “the nonappointing court may not entertain suits against the trustee ... without leave from the appointing court.” However, the Kashani court further stated that leave is not required for a party to bring suit against the trustee in the bankruptcy court. Id. These decisions are consistent with the Supreme Court’s opinion in Barton. There, the Supreme Court specifically stated that its opinion applied to situations where one court has appointed a receiver and suit is brought against that receiver in another court. Barton, 104 U.S. at 136 (“We therefore declare it as our opinion that when the court of one State has ..." }, { "docid": "11309271", "title": "", "text": "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 from the appointing bankruptcy court. Although the Barton doctrine applies to many claims against a bankruptcy trustee, there are exceptions. The doctrine does not apply “if, by mistake or wrongfully, the receiver takes possession of property belonging to another.” Barton, 104 U.S. at 134. An individual whose property is wrongfully seized may bring suit against a receiver “personally as a matter of right; for in such case the receiver would be acting ultra vires.” Id. The question before us is whether Malloy’s allegedly retaliatory actions fall within his scope of authority as trustee or fit within the ultra vires exception. Although this Circuit has not specified the scope of the ultra vires exception to the Barton doctrine, other courts have most commonly relied upon the exception when a trustee wrongfully seizes possession of a third party’s assets. See, e.g., Leonard v. Vrooman, 383 F.2d 556, 560 (9th Cir.1967) (“[A] trustee wrongfully possessing property which is not an asset of the estate may be sued for damages arising out of his illegal occupation in a state" }, { "docid": "10306455", "title": "", "text": "but she did not seek leave of the court that appointed the receiver to bring her suit. Id. at 127. The Supreme Court 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.” Id. Accordingly, the Supreme Court held that “a court of another State has not jurisdiction, without leave of the court by which the receiver was appointed, to entertain a suit against [the receiver].” Id. at 137. Modern courts have extended the Barton doctrine to bankruptcy trustees. See, e.g., Satterfield, 700 F.3d at 1234-35 (“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 from the appointing bankruptcy court.”); VistaCare, 678 F.3d at 232 (“[W]e hold that the Barton doctrine remains valid, and therefore ... 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.”); McDaniel v. Blust, 668 F.3d 153, 157 (4th Cir.2012) (“This principal has been extended to suits against bankruptcy trus-tees_”); Indus. Clearinghouse, Inc. v. Mims (In re Coastal Plains, Inc.), 326 B.R. 102, 111 (Bankr.N.D.Tex.2005) (“The Barton Doctrine ... was expanded to include claims against bankruptcy trustees.”). At first blush, then, it appears that this Court would not have jurisdiction to hear the Counterclaim because it is against Trustees Cunningham, Mims, and Reed, and RPD has not sought leave to bring the Counterclaim. However, RPD argues that because the Counterclaim was asserted in the court that appointed Trustees Cunningham, Mims, and Reed, “it would be absurd to conclude that this Court lacks jurisdiction over those claims-” Objection of RPD Holdings, LLC to Trustee’s Motion to Dismiss [Dkt. No. 64] at 2. Thus, the issue before this Court is whether the Barton doctrine applies to suits brought against a trustee in the appointing court. This Court agrees with those courts that have concluded that a party-does not need leave to sue" }, { "docid": "20394788", "title": "", "text": "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 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 to hear a claim when leave of the bankruptcy court is not sought. When Harris’s case was removed to the appointing bankruptcy court, all problems under the Barton doctrine vanished. Therefore, the district court erred in affirming the bankruptcy court’s dismissal of Harris’s suit for lack of subject matter jurisdiction under the Barton doctrine. However, this error does not affect the result because we affirm on the alternate ground given by both the district court and the bankruptcy court, that is: All of the defendants are entitled to derived quasi-judicial immunity; therefore, Harris fails to state a claim upon which relief can be granted. C. Appellees are entitled" }, { "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": "5481677", "title": "", "text": "issued an insurance policy worth $10 million to BFG, which would have covered many of the creditors’ claims against it; Nationwide denied that it had issued such a policy. According to the plaintiffs, Schmidt’s failure to pursue BFG’s claim against Nationwide for coverage under that policy depleted the estate and deprived the plaintiffs of property. The district court dismissed the case on Schmidt’s motion because the plaintiffs failed to obtain leave from the bankruptcy court that appointed Schmidt as the banfc ruptcy trustee before filing suit against him. The plaintiffs appealed. DISCUSSION “We review de novo a district court’s Rule 12(b)(6) dismissal of a com plaint.” Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 638 (5th Cir.2007). The Supreme Court has held that, “before suit is brought against a receiver leave of the court by which he was appointed must, be obtained.” Barton v. Barbour, 104 U.S. 126, 128, 26 L.Ed. 672 (1881). We have applied this principle to bankruptcy trustees, as have other circuits addressing the issue. See Anderson v. United States, 520 F.2d 1027, 1029 (5th Cir.1975); McDaniel v. Blust, 668 F.3d 153, 156-57 (4th Cir.2012) (collecting cases). The plaintiffs argue that what has become known as the Barton doctrine does not apply in this case for two reasons. First, they contend that the Supreme Court, in Stern v. Marshall, — U.S. —, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), effectively created an exception to the Barton doctrine, and that that exception applies here. Second, they argue that the Barton doctrine does not apply when a party brings suit in the district court that exercises supervisory authority over the bankruptcy court that appointed the trustee. I. Whether Stern creates an exception to the Barton doctrine. In Stem, the Court held that bankruptcy courts lack constitutional authority to enter final judgment on state-law counterclaims unless they “stem[] from the bankruptcy itself or would necessarily be resolved in the claims allowance process.” Id. at 2618. The plaintiffs argue that the Barton doctrine does not apply to “Stem claims” over which the bankruptcy court lacks final adjudicative authority. They further" }, { "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": "21021073", "title": "", "text": "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 the court’s control by virtue of the Bankruptcy Code.” 136 F.3d at 545. In addition, the policy behind this leave of court requirement was well-stated by the Seventh Circuit: 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 peo- pie 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 bankruptcy judges to monitor the work of the trustees more effectively. Linton, 136 F.3d at 545. Plaintiffs suit is a run-of-the-mill Barton case. Carter sued Defendants in district court for breaches of fiduciary duties stemming from their official bankruptcy duties. He needed leave of the bankruptcy court, and absent that leave, the district court correctly found that it" }, { "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": "5481678", "title": "", "text": "F.2d 1027, 1029 (5th Cir.1975); McDaniel v. Blust, 668 F.3d 153, 156-57 (4th Cir.2012) (collecting cases). The plaintiffs argue that what has become known as the Barton doctrine does not apply in this case for two reasons. First, they contend that the Supreme Court, in Stern v. Marshall, — U.S. —, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), effectively created an exception to the Barton doctrine, and that that exception applies here. Second, they argue that the Barton doctrine does not apply when a party brings suit in the district court that exercises supervisory authority over the bankruptcy court that appointed the trustee. I. Whether Stern creates an exception to the Barton doctrine. In Stem, the Court held that bankruptcy courts lack constitutional authority to enter final judgment on state-law counterclaims unless they “stem[] from the bankruptcy itself or would necessarily be resolved in the claims allowance process.” Id. at 2618. The plaintiffs argue that the Barton doctrine does not apply to “Stem claims” over which the bankruptcy court lacks final adjudicative authority. They further contend that their negligence and fiduciary duty claims against Schmidt are such claims. We conclude that the Barton doctrine continues to apply regardless of whether the plaintiffs’ claims qualify as Stem claims, for two reasons. First, the Supreme Court has directed appeals courts to abstain from concluding that one of the Court’s later cases has, by implication, limited or overruled one of its earlier cases. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). The plaintiffs’ claim that Stem silently limits Barton is exactly the sort of limitation-by-implication the Court prohibits. Because the Barton doctrine is directly applicable to this case, we must apply that doctrine and allow the Court to impose, or decline to impose, limitations based on Stem. Second, the Court has recently suggested that Stem would not, in fact, limit the Barton doctrine when it stated that “Stem did not ... decide how bankruptcy or district courts should proceed when a ‘Stem claim’ is identified.” Executive Benefits Ins. Agency v. Arkison, — U.S. —, 134 S.Ct. 2165," }, { "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": "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": "5126670", "title": "", "text": "issues of law are raised in this appeal; there are no factual issues in dispute. We review issues of law de novo. In re Cole, 93 B.R. 707, 708 (9th Cir. BAP 1988). DISCUSSION The California “single action rule” derives from Cal.Code Civ.Proc. § 726(a), which provides in pertinent part: There can be but one form of action for the recovery of any debt ... secured by mortgage upon real property ... which action shall be in accordance with the provisions of this chapter. The California courts have held that § 726 prohibits a mortgagee from suing the mortgagor on the secured obligation without first foreclosing on the real property collateral. Walker v. Community Bank, 10 Cal.3d 729, 733, 111 Cal.Rptr. 897, 899, 518 P.2d 329, 331 (1974). If the mortgagee seeks to enforce the secured obligation without first foreclosing on the collateral, the mortgagor may assert § 726 as an affirmative defense to such ah enforcement action. Walker, 10 Cal.3d at 734, 111 Cal. Rptr. at 900, 518 P.2d at 332. The California courts have also held that under § 726 and the single action rule, if the mortgagee does enforce an obligation which is secured by obtaining a money judgment against the mortgagor without foreclosing on the real property collateral, then the mortgagor is deemed, under the single action rule, to have elected a remedy other than foreclosure, and consequently to have waived its right to foreclose on the real property collateral. Id.; James v. P.C.S. Ginning Co., 276 Cal.App.2d 19, 22, 80 Cal.Rptr. 457, 459 (1969). However, simple institution of an action on the debt does not act as a waiver of the right to foreclose on security for the debt. Brice v. Walker, 50 Cal.App. 49, 194 P. 721 (1920). The foregoing case was cited and followed recently by Tidrick v. General Bank (In re Tidrick), 105 B.R. 584, 586 (Bankr.C.D.Cal.1989). Tidrick was considered determinative by the trial court and will be discussed below. The debtor contends that under California law, entry of default terminates the defendant’s right to file an answer, and entitles the plaintiff" } ]

[ { "docid": "10230629", "title": "", "text": "cannot acquire jurisdiction; 3) at the time the action is commenced, the claim is the subject of another pending action; and 4) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment of that claim and the pleading does not state any counterclaim under Rule 13. Fed. R.Civ.P. 13. Clearly exceptions two and four are not applicable to this case. There are no facts presented in favor of or against exception one. Exception three is not applicable because the claim for collection and foreclosure was not pending when the RICO, Bank Tying Act and usury claims commenced. The non application of the third exception is further addressed below in Section IV. . Although the Thurman court addressed the compulsory counterclaim rule as applied in Texas Rule of Civil Procedure 97(a), it was the underlying substantive state law regarding mortgages which created the exception to the counterclaim rule. The exception should apply with equal force to suits originated in federal court. . Federal rules which may incidentally affect a litigant’s substantive rights do not violate this theory if they are necessary to maintain the integrity of the system of rules. Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 5, 107 S.Ct. 967, 969, 94 L.Ed.2d 1 (1987). . Under Texas law a mortgagee may either sell property via non-judicial foreclosure pursuant to express powers granted in a deed of trust or bring a judicial foreclosure action. See Tex. Prop.Code Ann. § 51.002 (Vernon Supp.1991). Judicial foreclosure and foreclosure under the power of sale in a deed of trust are remedies which cannot be concurrently prosecuted. Gandy v. Cameron State Bank, 2 S.W.2d 971, 973 (Tex.Civ.App.—Austin 1927, writ ref’d). .According to the FDIC, this menu includes: the right to sue on the note; the right to sue on a guaranty; the right to institute judicial foreclosure proceedings; the right to pursue a deficiency, if any, after foreclosure against the maker of the note; the right to pursue a deficiency, if any, after foreclosure pursuant to" }, { "docid": "2914061", "title": "", "text": "New York State Supreme Court, Essex County, where the original action on the mortgage debt was brought. See CMBI’s Memorandum of Law at 7. To the contrary, High Peaks argues that CMBI is foreclosed from commencing or proceeding with a foreclosure action against High Peaks because CMBI chose, pursuant to section 1301, to commence an action against Pascarelli, as guarantor, to recover the mortgage debt. High Peaks argues that because CMBI obtained a final judgment in its action against Pascarelli and executed this judgment against Pascar-elli’s winnings in the New York State Lottery by service upon the Sheriff of Schenectady County, CMBI is foreclosed from commencing a foreclosure action against High Peaks until this execution is returned wholly or partly unsatisfied in December 2005, if at all. The Bankruptcy Court agreed with High Peaks that section 1301 barred CMBI from commencing a foreclosure action against High Peaks at this time. Accordingly, the Bankruptcy Court denied CMBI’s motion to lift the automatic stay. Keeping in mind that this court may overturn the Bankruptcy Court’s decision to maintain the automatic stay only upon a finding of an abuse of discretion, the court must determine whether or not the Bankruptcy Court correctly applied the legal principles embodied in section 1301 to the facts of this case. For the reasons stated below, the court concludes that the Bankruptcy Court did not abuse its discretion in holding that section 1301 barred CMBI from commencing a foreclosure action against High Peaks under the circumstances of this case. Accordingly, the court affirms the Bankruptcy Court’s order denying CMBI’s motion to lift the automatic stay and remands the case to the Bankruptcy Court for further proceedings. New York courts have interpreted section 1301 to require the holder of a note and mortgage to make an election of remedies — either to foreclose on the mortgage or to recover on the note. First Fidelity Bank, N.A., New Jersey v. Best Petroleum, Inc., 757 F.Supp. 293, 296 (S.D.N.Y.1991) (citing Copp v. Sands Point Marina, 17 N.Y.2d 291, 293, 270 N.Y.S.2d 599, 217 N.E.2d 654 (1966)). The purpose of section 1301" }, { "docid": "10230630", "title": "", "text": "court. . Federal rules which may incidentally affect a litigant’s substantive rights do not violate this theory if they are necessary to maintain the integrity of the system of rules. Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 5, 107 S.Ct. 967, 969, 94 L.Ed.2d 1 (1987). . Under Texas law a mortgagee may either sell property via non-judicial foreclosure pursuant to express powers granted in a deed of trust or bring a judicial foreclosure action. See Tex. Prop.Code Ann. § 51.002 (Vernon Supp.1991). Judicial foreclosure and foreclosure under the power of sale in a deed of trust are remedies which cannot be concurrently prosecuted. Gandy v. Cameron State Bank, 2 S.W.2d 971, 973 (Tex.Civ.App.—Austin 1927, writ ref’d). .According to the FDIC, this menu includes: the right to sue on the note; the right to sue on a guaranty; the right to institute judicial foreclosure proceedings; the right to pursue a deficiency, if any, after foreclosure against the maker of the note; the right to pursue a deficiency, if any, after foreclosure pursuant to guaranty agreements; the right to choose when and which of these remedies to pursue; the right to pursue any remedy without waiving the right to pursue any other remedies; and the right to file suit in Kerr County. . Election is often confused with or likened to judicial estoppel, equitable estoppel, ratification, waiver or satisfaction. Id. at 850. . In fact, when the district court entered an order which prohibited CSB from pursuing any type of foreclosure, CSB pursued its right to foreclose (be it judicially or extra-judicially) all the way to the Fifth Circuit and was successful. The FDIC is hardpressed to argue that CSB’s pursuit of the state court collection and foreclosure action does not evidence a desire to accomplish judicial foreclosure. As successor in interest to CSB, the FDIC’s removal of the state court action without receiving relief from the automatic stay likewise supports an intention to pursue judicial foreclosure. . Or to the FDIC. See discussion infra at Sections V and VI. . The FDIC claims that, because the representations regarding" }, { "docid": "16006423", "title": "", "text": "MEMORANDUM-DECISION AND ORDER McCURN, Chief Judge. Introduction This is an action to foreclose on a mortgage pursuant to N.Y. Real Property Actions and Proceedings Law § 1301 et seq. The subject of this litigation is a premises known as the SA & K building in Syracuse, New York. When first instituted, this matter was an ordinary foreclosure action pursuant to state law, instituted in state court. Yankee Bank for Finance and Savings, as mortgagee, had brought suit against the defendant real estate developers, as the mortgagors, who had allegedly defaulted on a loan. The bank also joined, as defendants, persons who had placed mechanic’s liens on the property for uncompensated labor and materials provided in the course of renovating the SA & K building. While the litigation was proceeding, the Federal Home Loan Bank Board found Yankee Bank to be insolvent and appointed the FDIC as its receiver. As a result, the FDIC was effectively substituted as the plaintiff in this action. The participation of the FDIC operated to “federalize” the suit — greatly complicating many of the legal issues. In prior decisions this court has determined, among other things, that the action was properly removed to federal court and that the FDIC was entitled to summary judgment of foreclosure and sale as against defendant Hanover Square Associates-Two Limited Partnership — the real estate developer and mortgagor with respect to the SA & K building. The process for the foreclosure sale of the premises has been set in progress. Presently before the court is the January 2, 1990, report-recommendation of Magistrate Gustave J. Di Bianco which addresses the issue of who has priority of right, as between the plaintiff FDIC and the “mechanic’s lienor” defendants, to the foreclosure sale proceeds. In a thorough report, familiarity with which is assumed, the Magistrate recommended that this court adopt state law as the rule of decision, find the plaintiff to have violated N.Y. Lien Law § 22, and based on this violation, hold that the plaintiffs interest in the foreclosure sale proceeds after the first $610,-000 is inferior to the interest of the" }, { "docid": "5126671", "title": "", "text": "have also held that under § 726 and the single action rule, if the mortgagee does enforce an obligation which is secured by obtaining a money judgment against the mortgagor without foreclosing on the real property collateral, then the mortgagor is deemed, under the single action rule, to have elected a remedy other than foreclosure, and consequently to have waived its right to foreclose on the real property collateral. Id.; James v. P.C.S. Ginning Co., 276 Cal.App.2d 19, 22, 80 Cal.Rptr. 457, 459 (1969). However, simple institution of an action on the debt does not act as a waiver of the right to foreclose on security for the debt. Brice v. Walker, 50 Cal.App. 49, 194 P. 721 (1920). The foregoing case was cited and followed recently by Tidrick v. General Bank (In re Tidrick), 105 B.R. 584, 586 (Bankr.C.D.Cal.1989). Tidrick was considered determinative by the trial court and will be discussed below. The debtor contends that under California law, entry of default terminates the defendant’s right to file an answer, and entitles the plaintiff to obtain a judgment upon ex parte request. The debtor argues that for these reasons, the entry of default was “the functional equivalent” of a judgment, and should be sufficient to constitute an election of remedies by Potrans, citing Cal.Code of Civ.Proc.Sec. 585(a) relating to judgment by default: That the clerk shall enter the default and immediately thereafter enter judgment for the principal amount demanded in the complaint or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and costs. Appellant contends that the • duty of the clerk is a mandatory one, citing the following: For the same reason, failure to enter judgment is of no consequence. Plaintiffs proper request for Entry of Default is the important step. Once the default is entered the time to answer or demur is cut off, regardless of whether the clerk delays or fails to take the final step of entry of judgment. After default is entered, it is then, or thereafter, the ministerial" }, { "docid": "18545313", "title": "", "text": "court whether ... the respondent appears, shall determine ... the fair and reasonable market value of the mortgaged premises ... and shall make an order directing the entry of a deficiency judgment.... 3. If no motion for a deficiency judgment shall be made as herein prescribed the proceeds of the sale regardless of amount shall be deemed to be injfull satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist. N.Y.Real Prop.Acts. § 1371 (McKinney 1979) (emphasis added). Section 1301 of the RPAPL requires holders of a note and a mortgage to choose between one of two remedies — proceed at law on the note or proceed in equity to foreclose the mortgage. The legislative intent was to provide for one action to determine a mortgagee’s right to payment. Contemporary Mortgage Bankers, Inc. v. High Peaks Base Camp, Inc. (In re High Peaks Base Camp, Inc.), 156 B.R. 890, 894 (N.D.N.Y.1993); United States v. Whitney, 602 F.Supp. 722, 730 (W.D.N.Y.1985); see also N.Y.Real Prop.Acts. §§ 1301(1), (3) (McKinney 1979). Upon Debtors’ default, PCSB commenced an action at law on the note, which culminated with entry of the Money Judgment against the Debtors. A subsequent action in equity to foreclose the mortgage would be prohibited unless the Money Judgment had been executed upon and returned unsatisfied. See High Peaks Base Camp, Inc., 156 B.R. at 895; see also RPAPL § 1301(1). PCSB did not execute upon the Money Judgment. Rather, it moved in the court where the judgment on the note had been obtained for an order granting it leave to commence a mortgage foreclosure action. Notwithstanding the prohibition against a subsequent action to foreclose the mortgage unless the Money Judgment was executed upon and returned unsatisfied, PCSB was granted leave to foreclose. By pursuing the foreclosure action, PCSB elected its remedy. As a result of the foreclosure judgment, the Money Judgment was rendered voidable. See Mariani v. J.KI.F. Management, 158 Misc.2d 938, 602 N.Y.S.2d 84, 86 (Sup.Ct.1993); see also First Fidelity Bank, N.A v. Best Petroleum, Inc., 757 F.Supp. 293, 296" }, { "docid": "7983346", "title": "", "text": "contends that the purpose of subsection (C) is restricted to the circumstance where an unavoidable consensual mortgage lien on the exempted property has, through foreclosure, been converted to a judgment lien on the same property. The creditor contends that the provision prohibits the avoidance of any judgment lien on exempt property arising from a mortgage-deficiency judgment, not restricted to a mortgage on the exempted property. B. Decisional Law To Date In In re Pascucci, 225 B.R. 25 (Bankr.D.Mass.1998), abrogated on other grounds by Nelson v. Scala, 192 F.3d 32, 35 (1st Cir.1999), the mortgagee brought a separate action against the debtor to obtain a deficiency judgment and then filed a judgment lien against the debtor’s exempted residence. See 225 B.R. at 28. The bankruptcy court ruled that, under the Massachusetts foreclosure procedure that the mortgagee utilized, the deficiency judgment did not arise under an action to foreclose, and granted the debtor’s motion to avoid the deficiency-judgment lien filed against the debtor’s residence, the non-mortgaged property. See id. at 28-29. Similarly, the Ninth Circuit Court of Appeals in In re Been, 153 F.3d 1034 (9th Cir.1998), ruled that under California procedure, where a junior mortgagee was “sold-out” when a senior mortgagee conducted a non-judicial foreclosure, and the junior mortgagee thereafter obtained a judgment on its mortgage note, such a judgment was not a judgment arising out of a mortgage foreclosure within the meaning of § 522(f)(2)(C). See 153 F.3d at 1036. This is so, the court observed, notwithstanding that California law permits “sold-out junior lienholders ... to bring an independent action on the underlying promissory note for the balance that the debtor still owes after the senior lienholder’s foreclosure sale.” Id. In this district, a bankruptcy court, in In re Vincent, 260 B.R. 617 (Bankr.D.Conn.2000), determined that “the words, ‘judgment arising out of ... a mortgage foreclosure,’ more naturally suggest the mechanics of a Connecticut deficiency judgment rather than that of mortgage transmutation.” 260 B.R. at 621-22. The court noted that “[i]n Connecticut a deficiency judgment is part and parcel of a mortgage foreclosure action ... [and] no instate person may" }, { "docid": "18545320", "title": "", "text": "142, 142 (1980); Citibank, N.A. v. Covenant Ins. Co., 150 Misc.2d 129, 567 N.Y.S.2d 983, 985 (Sup.Ct. 1991) (“In special circumstances, the court might exercise its discretion to permit a later suit on the bond where no deficiency could be obtained in the foreclosure action.”); Stein v. Nellen Dev. Corp., 123 Misc.2d 268, 473 N.Y.S.2d 331, 333 (Sup.Ct.1984) (“Whether ... leave of court should be granted to com-, menee the separate action to recover upon the mortgage debt is conditioned upon the applicant demonstrating that special circumstances exist to justify a separate proceeding at law.”). Although considerable case law has developed with respect to when leave of court will be granted, the New York courts have not determined whether special circumstances exist upon facts similar to ours. In Manufactures Hanover Trust Co. v. 400 Garden City Assocs., 150 Misc.2d 247, 568 N.Y.S.2d 505, 506 (Sup.Ct.1991), the court held that the filing of bankruptcy by the mortgagor did not give rise to special circumstances as the mortgagee was not “permanently frustrated in foreclosure.” Id. There, the mortgagee was seeking leave of court to proceed against a guarantor of the note, not the debtor. Presumably, the mortgagee in that case would have recourse against the guarantor once the bankruptcy case was closed. Here, however, because the obligor/Debtors may be granted a discharge, PCSB will be permanently frustrated if leave of court is not granted. 5. Determination of Special Circumstances Acknowledging that this appears to be a case of first impression, Debtors urge this Court here to conclude that the special circumstances exception to the single-action rule does not apply. RPAPL § 1301(3) provides that if a foreclosure action is pending or a final foreclosure judgment is rendered, the mortgagee may commence an action to recover any part of the mortgage debt only upon “leave of the court in which the [foreclosure] action was brought.” RPAPL § 1301(3). “[T]he aim of RPAPL Article 13 is ‘to confine all proceedings to collect the mortgage debt to one court and one action.’ ” Stein v. Blatte, 118 Misc.2d 633, 461 N.Y.S.2d 189, 191 (Sup.Ct.1983). In" }, { "docid": "18545310", "title": "", "text": "at the commencement of the bankruptcy case. After the debtor filed for bankruptcy, the mortgagee completed its foreclosure action without seeking a deficiency judgment. Like New York, applicable state law required mortgagees to elect between an action at law on the note or in equity to foreclose. The mortgagee was thus precluded from bringing an action on the note and, therefore, could not enforce its claim. Nevertheless, the bankruptcy court held that the mortgagee had standing to object to the debtor’s discharge. It reasoned that although the claim was unenforceable, the underlying debt had not been extinguished and, therefore, the mortgagee remained a creditor, albeit a creditor without a remedy for enforcement. I respectfully disagree. In my view, once an obligation is entirely unenforceable under applicable law, creditor status in bankruptcy is lost. See Davenport, 495 U.S. at 559, 110 S.Ct. at 2131; Vahlsing, 829 F.2d at 567. If PCSB does not have a right to payment under state law, it cannot be a creditor in bankruptcy and, thus, lacks the requisite standing. 2. New York Foreclosure Law — The Single-Action Rule Article 13 of the RPAPL governs a mortgagee’s right to payment in a foreclosure action. RPAPL § 1301 provides in pertinent part: 1. Where final judgment for the plaintiff has been rendered in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution against the property of the defendant has been issued upon the judgment to the sheriff ... and has been returned wholly or partly unsatisfied. 3. While [a foreclosure] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought. N.Y.Real Prop. Acts. § 1301 (McKinney 1979). RPAPL § 1371 governs a mortgagee’s right to a deficiency judgment. It provides in pertinent part: 1. If a person who is hable to the plaintiff for the payment of the debt secured by the mortgage" }, { "docid": "13949194", "title": "", "text": "finding because (1) the bank, not having taken an assignment of the lien, did not acquire the legal title to it, (2) it showed as matter of law that the bank knew, or was charged with knowledge, of the existence of the equitable title in these defendants, and (3) having purchased the notes after maturity, the bank was not a purchaser in due course, and it took the notes and lien, as the mercantile company had taken them, charged with notice of any defects in the title to, and defenses against, them, and that this included notice of secret equities in the title to the property secured by the lien. The opinion of the district judge fully and correctly sets out the facts and states the issues, and we can, without restating them, proceed directly to a determination of the questions this appeal raises. We shall do this, where the district judge has made a determination and expressed an opinion, by stating our agreement or disagreement with his views, and, where he has not, by making and stating ours. Upon its first contention so vigorously argued by the appellant, that, because in the foreclosure proceeding the judgment was against those sued as defendants in this cause for the amount of the'debt sued for and for foreclosure of the lien for that amount against the property described, it must be held that the district judge erred in holding that the judgment, execution, order of sale, and sheriff’s deed did not pass to the bank their interest as heirs of their mother, we are in no doubt that Faubion v. Rogers, 66 Tex. 472, 1 S.W. 166 and the other cases cited, supra, settle the law to the contrary. -This is not only becaüse of the general rule estáblished by the cases, that “The only proper parties to a suit to foreclose a mortgage are the mortgagor and mortgagee and those whose interests have been acquired subsequently to the date of the mortgage”-, but because, in the amended petition by which, upon the death of their father, the original defendant in the" }, { "docid": "2914060", "title": "", "text": "returned wholly unsatisfied, its first execution of this judgment, served upon the Sheriff of Schenectady County, should be ignored as irrelevant with respect to the issue of whether the requirements of section 1301 have been satisfied in this case. This is so, argues CMBI, because section 1301 permits a mortgagee (CMBI) to commence a subsequent foreclosure action against a mortgagor (High Peaks) once an execution against the property of the guarantor (Pascarelli) obtained as a result of an action on the mortgage debt is issued to the sheriff of the county in which the guarantor resides; i.e., Essex County, and is thereafter returned wholly or partly unsatisfied. This, urges CMBI, is exactly what has occurred in the present case. In the alternative, CMBI argues that even if the Bankruptcy Court correctly concluded that it had not satisfied the conditions of section 1301, it still should have granted CMBI’s motion to lift the automatic stay so that CMBI could litigate the issue of whether it was entitled to bring a foreclosure action against High Peaks in New York State Supreme Court, Essex County, where the original action on the mortgage debt was brought. See CMBI’s Memorandum of Law at 7. To the contrary, High Peaks argues that CMBI is foreclosed from commencing or proceeding with a foreclosure action against High Peaks because CMBI chose, pursuant to section 1301, to commence an action against Pascarelli, as guarantor, to recover the mortgage debt. High Peaks argues that because CMBI obtained a final judgment in its action against Pascarelli and executed this judgment against Pascar-elli’s winnings in the New York State Lottery by service upon the Sheriff of Schenectady County, CMBI is foreclosed from commencing a foreclosure action against High Peaks until this execution is returned wholly or partly unsatisfied in December 2005, if at all. The Bankruptcy Court agreed with High Peaks that section 1301 barred CMBI from commencing a foreclosure action against High Peaks at this time. Accordingly, the Bankruptcy Court denied CMBI’s motion to lift the automatic stay. Keeping in mind that this court may overturn the Bankruptcy Court’s decision to" }, { "docid": "149536", "title": "", "text": "an action attacking the collectibility of a secured debt the compulsory counterclaim rule does not require the secured party to counterclaim to collect on the debt if he has chosen to exercise his bargained for right to pursue extra-judicial foreclosure. This principle was first articulated in Kaspar v. Keller, 466 S.W.2d 326 (Tex.Civ.App.—Waco 1971, writ ref’d n.r.e.). Kaspar executed an installment deed of trust note to Keller as part consideration for the purchase of realty. Kaspar later sued Keller, alleging the purchase had been induced by fraud and requesting recision of the purchase transaction, recovery of a $75,000.00 down payment, and cancellation of the note. When Keller indicated his intention to foreclose under the power of sale in the deed of trust, Kaspar sought and obtained a temporary injunction. Keller answered but filed no counterclaim on the note. The case was tried to a jury which found that the sale had not been induced by fraud. With Kaspar’s suit out of the way, Keller foreclosed on his collateral and credited the purchase price against the outstanding balance of Kaspar’s note. Keller then sued Kaspar for the deficiency. As a defense to the collection action, Kaspar asserted that Keller’s claim under the note was barred by Tex.R.Civ.P. 97(a) because it was a compulsory counterclaim which should have been asserted in the prior action. Although the court noted that Keller’s claim “undoubtedly meets the literal requirements of the Rule so as to constitute it, by its terms, a compulsory counterclaim,” it refused to apply Rule 97(a) to bar the collection action. Id. at 328. The court recognized that “the power of sale in a deed of trust is a valuable contract right which ‘cannot be impaired by any subsequent act of the mortgagor’ ” and that \"[jjudicial foreclosure and foreclosure under the power of sale in a deed of trust are remedies which cannot be concurrently prosecuted” under Texas law. Id. (citations omitted). Kaspar’s argument, the court reasoned, would have the effect of requiring Keller to forfeit his contractual rights by requiring Keller to elect judicial foreclosure in the previous suit to" }, { "docid": "16940195", "title": "", "text": "Loan and then some. See In re Whittemore, 37 B.R. 93, 94 (Bankr.D.Or.1984)(holding proceeds from sale of debtor’s property should be applied toward liens in order of their priority); Union Central Life Ins. Co. v. Austin, 52 S.W.2d 536, 538-39 (Tex.Civ.App.-El Paso writ ref'd) (holding $759.47 payment on $4,000.00 note given as renewal of two notes was properly applied toward senior secured note); Marshall v. G.A. Stowers Furniture Co., 167 S.W. 230, 231 (Tex.Civ.App.-San Antonio 1914, no writ)(holding debt payments should be applied to senior mortgage). Fire Eagle claims these state foreclosure cases don’t apply in a § 363(k) bid context alleging that a bankruptcy sale in which the creditor bids against his debt to purchase the property secured by that debt is somehow different from that same event when it occurs in a foreclosure on the courthouse steps under state law. However, Fire Eagle cannot, and does not, tell us what that difference is. Perhaps that is because there is no difference. In both situations the “credit bid” is required to be applied against the debt. And, to the extent the debt is reduced in the process, so is any outstanding liability on such debt. One cannot waive payment as a defense, and a credit bid by the secured lender, whether in the context of state law foreclosure or of a § 363(k) bid, is payment on the debt. It can, in fact, be nothing else. A lender’s full credit bid will prevent pursuit of additional collateral. Bank of America v. Quackenbush, 56 Cal.App.4th 1167, 66 Cal.Rptr.2d 81 (4th Dist. Div. 3 1997)(Lender’s full credit bid at nonjudicial foreclosure sale conclusively establishes value of the property, extinguishes lien, and precludes lender from pursu ing any other remedy based on diminution of value in property); Oklahoma P.A.C. First Limited Partnership v. Metropolitan Mortgage & Securities Co., Inc., (In re Oklahoma P.A.C. First Limited Partnership), 168 B.R. 212 (Bankr.D.Ariz.1993)(deed of trust holders who credit bid full amount of indebtedness then due and owing on promissory notes and deeds of trust had to be regarded as “paid in full” and could not" }, { "docid": "4728422", "title": "", "text": "$2,537,995.78 under the assigned Chase Manhattan mortgage, which was senior to the blanket mortgage. Hence, the May 30, 1979 order of this court, approving the trustee’s sale to Leucadia, and the foreclosure judgment issued by the Supreme Court, Westchester County on October 25, 1978, both of which have not been appealed, present insurmountable stumbling blocks along the road to the so-called surplus for the bankrupt. The bankrupt correctly notes that under the law of the State of New York, where a holder of a blanket mortgage elects to foreclose the mortgage and omits one or more subject parcels from the foreclosure the mortgagee is deemed to have waived its lien on the omitted parcels. Bankers Trust Co. v. G. A. Equities, Inc., 57 A.D.2d 601, 394 N.Y.S.2d 30 (2nd Dept. 1977); Bodner v. Brickner, 29 A.D.2d 441, 288 N.Y.S.2d 342 (1st Dept. 1968). Thus, by omitting a portion of the mortgaged premises from the foreclosure, a New York mortgagee is precluded from obtaining a deficiency judgment against the mortgagor. See Carmo-dy-Wait 2d, 92:397. The rationale for this conclusion is that the mortgagee must first resort to all of the assets available as collateral before the mortgagor can be held personally liable for any deficiency. Leuca-dia’s omission of the Westchester properties from its foreclose under the blanket mortgage stems from the fact that it had already obtained an earlier foreclosure judgment against the Westchester properties in its foreclosure under the assigned senior Chase Manhattan mortgage on October 25, 1978. In the circumstances, Leucadia has resorted to all of the collateral available to it under the two separate mortgages. Having asserted its secured position against the Westchester properties under a senior mortgage, it cannot now be said that Leucadia’s omission of such properties in its foreclosure action under a junior blanket mortgage constitutes a waiver of its lien against such properties. Leucadia exercised its secured senior’s interest in the Westchester properties when the Westchester properties were sold on May 27,1980 at the foreclosure sale held pursuant to the October 25, 1978 judgment of the Supreme Court, Westches-ter County. Thus Leucadia has completely" }, { "docid": "18545312", "title": "", "text": "is made a defendant in the action, and has appeared or has been personally served with the summons, the final judgment may award payment by him of the whole residue, or so much thereof as the court may determine to be just and equitable, of the debt remaining unsatisfied, after a sale of the mortgaged property and the application of the proceeds, pursuant to the directions contained in such judgment, the amount thereof to be determined by the court as herein provided. 2. Simultaneously with the making of a motion for an order confirming the sale, provided such motion is made within ninety days after the date of consummation of the sale by the delivery of the proper deed of conveyance to the purchaser, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action. Upon such motion the court whether ... the respondent appears, shall determine ... the fair and reasonable market value of the mortgaged premises ... and shall make an order directing the entry of a deficiency judgment.... 3. If no motion for a deficiency judgment shall be made as herein prescribed the proceeds of the sale regardless of amount shall be deemed to be injfull satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist. N.Y.Real Prop.Acts. § 1371 (McKinney 1979) (emphasis added). Section 1301 of the RPAPL requires holders of a note and a mortgage to choose between one of two remedies — proceed at law on the note or proceed in equity to foreclose the mortgage. The legislative intent was to provide for one action to determine a mortgagee’s right to payment. Contemporary Mortgage Bankers, Inc. v. High Peaks Base Camp, Inc. (In re High Peaks Base Camp, Inc.), 156 B.R. 890, 894 (N.D.N.Y.1993); United States v. Whitney, 602 F.Supp. 722, 730 (W.D.N.Y.1985); see also N.Y.Real Prop.Acts. §§ 1301(1)," }, { "docid": "18545314", "title": "", "text": "(3) (McKinney 1979). Upon Debtors’ default, PCSB commenced an action at law on the note, which culminated with entry of the Money Judgment against the Debtors. A subsequent action in equity to foreclose the mortgage would be prohibited unless the Money Judgment had been executed upon and returned unsatisfied. See High Peaks Base Camp, Inc., 156 B.R. at 895; see also RPAPL § 1301(1). PCSB did not execute upon the Money Judgment. Rather, it moved in the court where the judgment on the note had been obtained for an order granting it leave to commence a mortgage foreclosure action. Notwithstanding the prohibition against a subsequent action to foreclose the mortgage unless the Money Judgment was executed upon and returned unsatisfied, PCSB was granted leave to foreclose. By pursuing the foreclosure action, PCSB elected its remedy. As a result of the foreclosure judgment, the Money Judgment was rendered voidable. See Mariani v. J.KI.F. Management, 158 Misc.2d 938, 602 N.Y.S.2d 84, 86 (Sup.Ct.1993); see also First Fidelity Bank, N.A v. Best Petroleum, Inc., 757 F.Supp. 293, 296 (S.D.N.Y.1991) (concluding foreclosure action would be affirmative defense to pending action on note). In Maria-ni after the mortgagee failed to obtain a deficiency judgment in the foreclosure action, it sought to enforce a money judgment entered prior to the foreclosure. The court concluded that the mortgagee’s decision to pursue foreclosure estopped it from enforcing the money judgment and, thus, the mon ey judgment was unenforceable. Under Maviani, entry of the foreclosure judgment would render PCSB’s Money Judgment unenforceable. Unable to enforce its Money Judgment, PCSB nevertheless contends that it may pursue its claim under RPAPL § 1371, which provides that a “mortgagee may recover from the mortgagor the debt remaining unsatisfied after foreclosure, but only if the person hable for the payment of the debt secured by the mortgage was made a defendant in the action, and appeared or was personally served with the summons in the action.” United States v. Whitney, 602 F.Supp. 722, 731 (W.D.N.Y.1985). Thus, assuming the Debtors had been named as defendants in the foreclosure action and appeared or were properly" }, { "docid": "10230596", "title": "", "text": "borrower files an action attacking the collectability of a secured debt, the compulsory counterclaim rule does not require the secured party to counterclaim to collect on the debt if he has chosen to exercise his bargained for right to pursue extra-judicial foreclosure.” Thurman, 889 F.2d at 1444 (emphasis added). Thurman recognized that a lender has various remedies available to it under a note and adopted the reasoning of a Texas case, Kaspar v. Keller, which precluded a borrower from compelling the lender to pursue a judicial foreclosure remedy through a counterclaim by merely filing an action to cancel the note. See Thurman, 889 F.2d at 1445 (citing Raspar v. Keller, 466 S.W.2d 326, 329 (Tex.Civ.App.-Waco 1971, writ ref’d n.r.e.)). Raspar stated that: the mortgagor should not be permitted to destroy or impair the mortgagee’s contractual right to foreclose under the power of sale by the simple expedient of instituting a suit, whether groundless or meritorious, thereby compelling the mortgagee to abandon the extra-judicial foreclosure which he had the right to elect, nullifying his election, and permitting the mortgagor to control the option as to the remedies. Raspar, 466 S.W.2d at 329. The court’s reasoning for the rule was that the power of sale in a deed of trust is a valuable contract right which cannot be impaired by any subsequent act of the mortgagor. Id. at 328 (quoting Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147, 150 (1912)). The court also reasoned that the rules of civil procedure shall not enlarge or diminish any substantive rights or obligations of any parties to any civil action. Id. at 329; Tex. Rule Civ.P. 815; see also 28 U.S.C. § 2072. Following the logic of Raspar, the court in Stille v. Colbom specifically construed the language found in a deed of trust to allow the lender the option of commencing one remedy (non-judicial foreclosure), and before completion, change to the other. Stille, 740 S.W.2d 42, 44 (Tex. App.—San Antonio 1987, writ denied). Phillips argues that the language in Thurman and Raspar imply that if a lender waives its right to non-judicial foreclosure," }, { "docid": "13949195", "title": "", "text": "making and stating ours. Upon its first contention so vigorously argued by the appellant, that, because in the foreclosure proceeding the judgment was against those sued as defendants in this cause for the amount of the'debt sued for and for foreclosure of the lien for that amount against the property described, it must be held that the district judge erred in holding that the judgment, execution, order of sale, and sheriff’s deed did not pass to the bank their interest as heirs of their mother, we are in no doubt that Faubion v. Rogers, 66 Tex. 472, 1 S.W. 166 and the other cases cited, supra, settle the law to the contrary. -This is not only becaüse of the general rule estáblished by the cases, that “The only proper parties to a suit to foreclose a mortgage are the mortgagor and mortgagee and those whose interests have been acquired subsequently to the date of the mortgage”-, but because, in the amended petition by which, upon the death of their father, the original defendant in the foreclosure suit, the defendants in this cause were brought into it, the defendants were sued and judgment was sought against them as children and heirs at law of R. J. Williams, their father. While, therefore, as was held in Walraven v. Farmers & Merchants Nat. Bank, supra, if it had been shown that the defendants’ title, as heirs of their mother, was in fact litigated in the cause, it would be proper to hold that the validity of that title was now res judicata, there is no basis under the pleading and record in this case for the claim that the title they took from their mother was, or could have been, there litigated and adjudicated against them. Finally appellant’s reliance on McDonald v. Powell Lumber Co., Tex.Civ.App., 243 S.W.2d 192, will not do for Gilbert McDonald, Jr., was, as maker of the notes, a primary defendant. Finding ourselves also in agreement with the district judge’s finding that the Jasper Mercantile Company, from whom the bank acquired the note and lien, was on notice of" }, { "docid": "4728421", "title": "", "text": "as penniless because the Westchester properties should really belong to the estate, and to the bankrupt to the extent of any surplus after full payment to all creditors. As the bankrupt wends his way along the tortuous path that he has outlined to arrive at the surplus at the end of his rainbow, the bankrupt has set up a straw man in the form of a single blanket mortgage held by Leucadia, which the bankrupt then attempts to knock down with the conclusion that: “... when Talcott [now Leucadia] foreclosed its blanket consolidated mortgage and omitted Westchester parcels covered by the blanket consolidated mortgage from foreclosure it waived its lien on the omitted parcels and it abandoned its right to obtain a deficiency judgment. Because of the omission, Talcott [now Leucadia] is deemed to have been paid in full ...”. This position elides the point that Leucadia also holds a judgment of foreclosure on the so-called omitted Westchester properties issued by the Supreme Court in Westchester County on October 25,1978 for the principal amount of $2,537,995.78 under the assigned Chase Manhattan mortgage, which was senior to the blanket mortgage. Hence, the May 30, 1979 order of this court, approving the trustee’s sale to Leucadia, and the foreclosure judgment issued by the Supreme Court, Westchester County on October 25, 1978, both of which have not been appealed, present insurmountable stumbling blocks along the road to the so-called surplus for the bankrupt. The bankrupt correctly notes that under the law of the State of New York, where a holder of a blanket mortgage elects to foreclose the mortgage and omits one or more subject parcels from the foreclosure the mortgagee is deemed to have waived its lien on the omitted parcels. Bankers Trust Co. v. G. A. Equities, Inc., 57 A.D.2d 601, 394 N.Y.S.2d 30 (2nd Dept. 1977); Bodner v. Brickner, 29 A.D.2d 441, 288 N.Y.S.2d 342 (1st Dept. 1968). Thus, by omitting a portion of the mortgaged premises from the foreclosure, a New York mortgagee is precluded from obtaining a deficiency judgment against the mortgagor. See Carmo-dy-Wait 2d, 92:397. The rationale" }, { "docid": "149538", "title": "", "text": "cancel the note, rather than pursuing extra-judicial foreclosure and a separate collection action following foreclosure to collect any deficiency. Id. The court concluded: We adopt the logic of the trial court that the mortgagor should not be permitted to destroy or impair the mortgagee’s contractual right to foreclosure under the power of sale by the simple expedient of instituting a suit, whether groundless or meritorious, thereby compelling the mortgagee to abandon the extra-judicial foreclosure which he had the right to elect, nullifying his election, and permitting the mortgagor to control the option as to remedies. Rule 815, Texas Rules of Civil Procedure directs that ‘these rules shall not be construed to enlarge or diminish any substantive rights or obligations of any parties to any civil action.’ We agree with the trial court that Rule 97(a) is modified by this Rule, and yields to it in the present case. We agree also that since the mortgagee elected the remedy of a trustee’s sale, his claim was not ripe for judicial action until the sale was completed and the amount of deficiency determined. Id. at 329. Accord Stille v. Colborn, 740 S.W.2d 42, 44 (Tex.App.—San Antonio 1987, writ denied). CSA bargained for and obtained the right to pursue the remedy of extra-judicial foreclosure. CSA had the bankruptcy court lift the stay and took steps to foreclose upon the properties securing the two promissory notes. Thurman and TEI then filed the state court action obtaining a temporary injunction enjoining that foreclosure and attacking the notes. Under Kaspar, CSA had the right, at that point, to refrain from filing a counterclaim and to wait until after a resolution of the claims of Thurman and TEI before foreclosing upon its collateral; Thurman and TEI could not force CSA to elect judicial foreclosure by filing a suit to cancel the notes. We also disagree with the district court’s ruling that all of the intervenor’s proposed defenses were lost because they were not affirmatively pleaded by CSA. FSLIC Corporate’s motion for a new trial asserts state law grounds which were properly asserted and not waived by CSA." } ]

[ { "docid": "12297298", "title": "", "text": "§ 1001. Defendants allege that Count 1 of C 143-289 is identical with the counts of C 142-126 and so Count 1 of C 143-289 should be dismissed. In Pinkerton v. United States, 328 U.S. 640, at page 643, 66 S.Ct. 1180, at page 1182, 90 L.Ed. 1489, the court stated that “it has been long and consistently recognized by the Court that the commission of the substantive offense and a' conspiracy to commit it are separate and distinct offenses.” It is also true that the crime of conspiracy is a separate and distinct offense from aid-’ ing and abetting the commission of the substantive offense. Louie v. United States, 9 Cir., 218 F. 36. Aiding and abetting’ “makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy.” Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919. ■Although the defendants • rely on United States v. Zeuli, 2 Cir., 1943, 137 F.2d 845, as .the court stated in United States v. Loew, 2 Cir., 1944, 145 F.2d. 332, 333: “The appellant misunderstands the doctrine to which we referred in United States v. Zeuli [2 Cir.], 137 F.2d 845. It is limited to cases . in which the substantive crime involves the mutual co-operation of two or more persons and cannot be committed by a single individual. All of the substantive crimes, contemplated by the conspiracy charged in the indictment at bar could have been committed by one person.” There is no doubt but that Count 1 of indictment C 143-289 charges a conspiracy which is a distinct offense from the substantive crimes charged in C 142-126. cf. Colosacco v. United States, 10 Cir., 1952, 196 F.2d 165. Part (b) of the motion is denied. The defendants allege that Count 1 of the indictment C 143-289 is barred by the three year statute of limitations provided in Title 18 U.S.C.A. § 3282. The last overt act alleged, is said to have occurred in March, 1950, and the indictment C 143-289 was handed down" } ]

[ { "docid": "23207305", "title": "", "text": "‘defense’ would necessarily negate an essential element of the crime charged.” 18 U.S.C. § 371 provides: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. The statute, as long construed, requires the prosecution to prove (1) that the alleged conspiracy existed; (2) that an overt act was committed in furtherance of the conspiracy; and (3) that the defendant knowingly and intentionally became a member of the conspiracy. Prosecution for conspiracy is also subject to a five-year statute of limitations, 18 U.S.C. § 3282, which runs from the date of the last overt act. Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946). In practice, to convict a defendant the prosecution must prove that the conspiracy existed and that each defendant was a member of the conspiracy at some point in the five years preceding the date of the indictment. Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 969, 1 L.Ed.2d 931 (1957); 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). Withdrawal marks a conspirator’s disavowal or abandonment of the conspiratorial agreement. Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912). By definition, after a defendant withdraws, he is no longer a member of the conspiracy and the later acts of the conspirators do not bind him. The defendant is still liable, however, for his previous agreement and for the previous acts of his co-conspirators in pursuit of the conspiracy. United States v. Hickey, 360 F.2d at 140. Withdrawal is not, therefore, a complete defense to the crime of conspiracy. Withdrawal becomes a complete defense only when coupled with the defense of" }, { "docid": "23155947", "title": "", "text": "the government satisfies the statute of limitations, see 18 U.S.C. § 3282(a), if it establishes that the conspiracy operated within the five-year period preceding the indictment, and a conspirator knowingly committed at least one overt act in furtherance of the scheme within that period. See Grunewald v. United States, 353 U.S. 391, 396-97, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); United States v. Ben Zvi, 242 F.3d at 97. Benussi acknowledges this test but asserts that (1) unilateral receipt of proceeds cannot establish an ongoing conspiracy, and (2) passive receipt of proceeds cannot constitute an overt act in furtherance of the scheme. We review these legal claims de novo. See United States v. Coriaty, 300 F.3d 244, 249 (2d Cir.2002). In evaluating Benussi’s twin challenges, we look to the scope of the charged conspiracy. As the Supreme Court explained in Grunewald v. United States, 353 U.S. at 397, 77 S.Ct. 963, “the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.” 1. A Conspirator’s Receipt of Anticipated Economic Proceeds Evidences the Continued Operation of a Conspiracy Benussi argues that the scope of the charged conspiracy extended only to the conspirators’ receipt of stripped warrants or, at the latest, to April 8, 1996, when their manipulation of the market for Gay-lord and Thermo-Mizer warrants ended. He insists that the conspiracy alleged in the indictment did not extend to the conspirators’ unilateral sales of their stripped warrants after that April date. See Appellant’s Br. at 32-39. The argument, however, is not supported by the indictments, which specifically allege that the ultimate conspiratorial goal was the sale of fraudulently acquired and inflated securities and the receipt of substantial cash profits. In both Indictments S2 and S5, the grand jury states that defendants engaged in deceptive and manipulative sales practices in order to sell securities of the Subject IPOs to their retail customers," }, { "docid": "53966", "title": "", "text": "charged or to defraud the United States; and (3) at least one overt act was committed in furtherance of the common scheme.” United States v. Treadwell, 760 F.2d 327, 333 (D.C.Cir.1985); see also United States v. Wilson, 160 F.3d 732, 737 (D.C.Cir.1998); United States v. Gatling, 96 F.3d 1511, 1518 (D.C.Cir.1996). The five-year statute of limitations for a § 371 prosecution, see 18 U.S.C. § 3282, begins running “from the last overt act during the existence of the conspiracy.” Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 91 L.Ed. 196 (1946); see also Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). For the indictment to be timely with respect to Hitt, it must show that no more than five years prior to the filing of the indictment (i.e., at a point no earlier than October 19, 1994) (1) the conspiracy, as contemplated by the agreement, still existed, and (2) at least one overt act in furtherance of the conspiracy occurred. See Grünewald, 353 U.S. at 397, 77 S.Ct. 963. In examining whether these conditions are fulfilled, “the crucial question ... is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.” Id. at 397, 77 S.Ct. 963; see also United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947). Key to determining the scope of the conspiracy — and dispositive in the instant appeal — is the extent to which there was a “meeting of minds” concerning the object of the conspiracy. United States v. Rosenblatt, 554 F.2d 36, 38 (2d Cir.1977) (quoting Krulewitch v. United States, 336 U.S. 440, 448, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring)); see also Treadwell, 760 F.2d at 336. “This does not mean that the conspirators must be shown to have agreed on the details of their criminal enterprise, but it does mean that the ‘essential nature of" }, { "docid": "8662517", "title": "", "text": "In that count the government alleges that during 1976 to 1978 Saltiel and Blumhof violated the FCA, § 3729(3), by conspiring together and with others to defraud the United States by getting false claims allowed or paid. (Complaint II, ¶ 13.) The government argues that in applying the FCA statute of limitations in § 3731(b) to violations of the FCA conspiracy provision, the “last overt act” rule should apply. That rule is applied to the federal five-year criminal statute of limitations, 18 U.S.C. § 3282, and provides that a defendant may be punished for participating even earlier in a conspiracy so long as one overt act in furtherance of the conspiracy occurred within five years of the filing of the indictment. See Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 970, 1 L.Ed.2d 931 (1957); United States v. Mennuti, 679 F.2d 1032, 1035 (2d Cir.1982). However, the last overt act rule is not applicable to actions for civil conspiracy. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 549-551, 63 S.Ct. 379, 386-388, 87 L.Ed. 443 (1943) (claim for civil penalty under FCA is civil, not criminal in nature). Under § 3729(3) the act which begins the running of the limitations period is the formation of the conspiracy. The fact that acts in furtherance of the conspiracy alleged in this case may have occurred within six years of the government’s suit does not alter the application of the limitations period to the 3729(3) claim. The principle is well settled in this circuit that the occurrence of an act in furtherance of a civil conspiracy within the limitations period does not render every related but otherwise time barred conspiratorial act actionable. See Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.1956); Rodrigues v. Village of Larchmont, New York, 608 F.Supp. 467, 477 n. 11 (S.D.N.Y.1985); Chodos v. Federal Bureau of Investigation, 559 F.Supp. 69, 74 (S.D.N.Y.), aff'd mem., 697 F.2d 289 (2d" }, { "docid": "11886115", "title": "", "text": "which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy”. Grunewald v. United States, supra, 353 U.S. at 397, 77 5. Ct. at 970, 1 L.Ed.2d at 939. Essentially the indictment here charged that the appellants conspired to violate Title 18, U.S.C., Section 1001, by agreeing to make false, fictitious, and fraudulent statements and representations to the Department of Labor, Manpower Administration, The indictment alleged and the government sought to prove at trial that five of the signatures on the Consortium Agreements and Definitions of a Consortium submitted to the Department of Labor were forged, and that none of the alleged Consortium members had agreed to hire and train the number of trainees represented in Baccus’ letter of August 13, 1969, to the Department. All of these representations and statements, however, were made to the Department on or before August 13, 1969, and were incorporated into the Consortium’s contract proposal. Thus, these acts occurred beyond the five year, limit of the statute, and although they were competent to show the formation of the conspiracy and its continuation, in order to convict the government must have alleged and proved an overt act in furtherance of the conspiracy occurring on or after September 5, 1969, and thus within the five years prior to the return date of the indictment. Pinkerton v. United States, supra, 145 F.2d at 254. Only two of the eight overt acts set forth in the indictment were alleged as occurring after September 5,1969, and within the five year period of limitations. The allegation of these two overt acts in the indictment was as follows: “7. On or about September 8, 1969, SAMMIE LEE DAVIS and JASPER EDWARD BACCUS induced the Department of Labor, Manpower Administration to enter into the Contract. “8. On or about September 22, 1969, SAMMIE LEE DAVIS and JASPER EDWARD BACCUS induced Harvey George Davisson to withdraw Behavioral Science Research Laboratories from the contract.” Paragraphs 18 and 19 of the indictment contained the only other references to" }, { "docid": "20692698", "title": "", "text": "offense shall have been committed.” 18 U.S.C. § 3282. In a conspiracy charge, the limitations period begins to run from the occurrence of the last overt act committed in furtherance of the conspiracy that is set forth in the indictment. See Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946); accord Buford v. Tremayne, 747 F.2d 445, 448 (8th Cir.1984); United States v. Alexander, 736 F.Supp. 968, 995 (D.Minn.1990). The government, to prevent the indictment from being found defective on its face, “must allege and prove the commission of at least one overt act by one of the conspirators within [the five-year] period in furtherance of the conspiratorial agreement.” United States v. Davis, 533 F.2d 921, 926 (5th Cir.1976) (citations omitted). The indictment in this case was returned on August 18, 1994. Thus, to satisfy the statute of limitations as to the conspiracy count, the indictment must set forth at least one overt act that occurred on or after August 18,1989. Count I of the indictment alleges that from on or about July 26, 1988, and continuously thereafter until on or about September 5, 1989, in the District of Nebraska, the defendant, Gary Dolan, knowingly and willingly did ... conspire ... with David Anderson to ... conceal ... property belonging to the bankruptcy estate____ In furtherance of the said conspiracy and to affect the objects thereof, in the District of Nebraska and elsewhere, one or more of the co-conspirators committed and caused to be committed one or more of the following overt acts. 12. On or about September 5, 1989, the United States Bankruptcy Court for the District of Nebraska dismissed the bankruptcy proceeding captioned In Re, David R. Anderson, Docket No. BK87-40028. (R. at 1-2, 4.) The district court, which had deferred ruling on Dolan’s motion to dismiss the indictment on statute of limitations grounds until the close of evidence, found that the indictment alleged at least one overt act within the limitations period and that the government had proved the existence of a conspiracy by a preponderance of the evidence. The" }, { "docid": "11886113", "title": "", "text": "their agreements with the Consortium and to accept the number of trainees agreed upon. For this reason, according to Baccus, he was unable to submit a list of the number of trainees and the Consortium members to whom they were assigned. Upon receipt of Baccus’ letter the contracting of ficer on behalf of the Department of Labor on May 1, 1974, cancelled the contract, and notified the Consortium of his action. II. THE STATUTE OF LIMITATIONS In Roberts v. United States, 5 Cir. 1969, 416 F.2d 1216, 1220, we stated the essential elements of the crime of conspiracy under § 371 to be “an agreement by two or more persons to combine efforts for an illegal purpose and an overt act by one of the members in furtherance of the agreement,” citing United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128; Nelson v. United States, 5 Cir. 1969, 415 F.2d 483; Castro v. United States, 5 Cir. 1961, 296 F.2d 540; Duke v. United States, 5 Cir. 1956, 233 F.2d 897. In a conspiracy prosecution brought under § 371 the government in order to avoid the bar of the limitation period of § 3282 must show the existence of the conspiracy within the five years prior to the return of the indictment, and must allege and prove the commission of at least one overt act by one of the conspirators within that period in furtherance of the conspiratorial agreement. Grunewald v. United States, 1957, 353 U.S. 391, 396-97, 77 S.Ct. 963, 969-70, 1 L.Ed.2d 931, 939-40; Fiswick v. United States, 1946, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196, 200; Pinkerton v. United States, 5 Cir. 1944, 145 F.2d 252, aff'd 1946, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1002; United States v. Albanese, S.D.N.Y.1954, 123 F.Supp. 732, 734, aff'd, 2 Cir. 1955, 224 F.2d 879. Hence, preliminary to a determination of whether the statute of limitations bars prosecution for a conspiracy it is essential to delimit the scope of the conspiratorial agreement alleged in the indictment, “for it is that" }, { "docid": "6706793", "title": "", "text": "as contemplated in the agreement as finally formulated, was still in existence” on July 9, 1964, and whether “at least one overt act in furtherance of the conspiracy was performed after that date.” Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 970, 1 L.Ed.2d 931 (1957). See also Toussie v. United States, 397 U.S. 112, 122, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). The crucial question, therefore, “is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.” Grunewald v. United States, supra, 353 U.S. at 397, 77 S.Ct. at 970. On the facts of this ease, it is clear that the limitations period had not run on count 3 by the time the indictment was filed. The “scope of the conspiratorial agreement” here included as a principal objective the obtaining of permanent residence for Sassalos. That objective had not been secured by July 9, 1964, which indicates on the surface at least that the conspiracy had not terminated by that date. Any doubts on that question, however, are dispelled by Sassalos’ appearance before the INS in August 1964 for the purpose of giving false information to obtain permanent residence. His appearance constituted an overt act committed within the scope of the original agreement and in furtherance of its objectives. Thus, under Grünewald we think the trial court correctly concluded that an instruction on the statute of limitations was unwarranted. In his brief to this court, Makris argues that he cannot be held accountable for the appearance by Sassalos before the INS in August 1964 because he was unaware that “an additional affidavit . . . would have to be submitted” beyond the visa petition which was filed in January. He claims that the August 1964 false statement “was clearly outside of any understanding he might have had with regard to the application and petition for permanent residence.” Whether it is in fact true that Makris did not know" }, { "docid": "22161073", "title": "", "text": "payment to Wilson by having it disguised as a bogus scholarship to UAB. PUGH argues that Count 75 falls outside of the five-year limitations period because the latest overt act by a co-conspirator charged in the Indictment — Grady Pugh’s sending a $4,500 check to UAB— was committed no later than August 24, 1999, which was outside the limitations period of February 7, 2000 to February 7, 2005. The government responds that the Indictment charged Wilson’s receipt of the benefit of UAB’s four quarterly disbursements to his son as four separate overt acts, and the last two disbursements (March 17 and June 7, 2000) were made to the son within five years of PUGH’s indictment on February 7, 2005. In reply, PUGH stresses that it is undisputed that UAJB and Wilson’s son were not members of the bribery conspiracy, and thus there was no overt act by a co-conspirator within the limitations period. “In a conspiracy prosecution brought under § 371 the government in order to avoid the bar of the limitation period of § 3282 must show the existence of the conspiracy within the five years prior to the return of the indictment, and must allege and prove the commission of at least one overt act by one of the conspirators within that period in furtherance of the conspiratorial agreement.” United States v. Davis, 533 F.2d 921, 926 (5th Cir.1976); see Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 969-70, 1 L.Ed.2d 931 (1957) (addressing a three-year limitations period and concluding the government must prove that conspiracy was still in existence at beginning of limitations period and that at least one overt act was performed after that date); United States v. Dynalectric Co., 859 F.2d 1559, 1564 n. 6 (11th Cir.1988) (stating if an overt act is necessary for the commission of the conspiracy, then “the indictment must charge and the evidence at trial must show that an overt act in furtherance of the conspiracy was made within the limitations period”). By contrast, for “conspiracy statutes that do not require proof of an overt act, the" }, { "docid": "6706792", "title": "", "text": "lived with Sassalos at that or any other residence. The final events in this scheme took place several months later. On August 13, 1964, Sassalos appeared at an INS office to provide further information so that the Service could determine whether he was eligible for an immigrant visa. Again he falsely stated that he and his wife, Luz, were living together at the address previously given in the visa petition. Obviously unaware of the falsehood, the INS issued Sassalos a permanent residence visa on August 27, 1964. Before the case went to the jury, defendant’s attorney unsuccessfully requested the trial judge to instruct the jury on questions relating to two defenses, the first of which was the statute of limitations. As to that defense, the parties agree that the Government is barred from prosecuting Makris on count 3 if the conspiracy there alleged terminated prior to July 9, 1964. The only issue in dispute is whether the crime, which clearly originated prior to July 9, 1964, continued past that date, i. e., whether “the conspiracy, as contemplated in the agreement as finally formulated, was still in existence” on July 9, 1964, and whether “at least one overt act in furtherance of the conspiracy was performed after that date.” Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 970, 1 L.Ed.2d 931 (1957). See also Toussie v. United States, 397 U.S. 112, 122, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). The crucial question, therefore, “is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.” Grunewald v. United States, supra, 353 U.S. at 397, 77 S.Ct. at 970. On the facts of this ease, it is clear that the limitations period had not run on count 3 by the time the indictment was filed. The “scope of the conspiratorial agreement” here included as a principal objective the obtaining of permanent residence for Sassalos. That objective had not been secured by July" }, { "docid": "13613366", "title": "", "text": "house, which had been a subject of the first indictment. Following a jury verdict of guilty, the district court sentenced Mennuti to a term of two and one-half years imprisonment and fined him $5,000. DISCUSSION In addition to claiming that this prosecution was barred by the statute of limitations, Mennuti argues that the district court erred in ruling that the government could cross-examine him concerning the 1975 destruction of another house and in permitting the government to introduce evidence of his profit from the conspiracy. Mennuti also contends that his sentence is “excessive.” I. Statute of Limitations Mennuti argues that the five-year statute of limitations in this case began to run on December 22, 1975 when the CNA insurance check was issued. Because the indictment was filed on February 23, 1981, he urges us to reverse his conviction. In Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 970, 1 L.Ed.2d 931 (1957), the Supreme Court stated: the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy. (emphasis added). The government was therefore obliged to show that the conspiracy, as contemplated by the agreement, still existed and that “one overt act in furtherance of the conspiracy occurred” no more than five years prior to the filing of the indictment. United States v. Brasco, 516 F.2d 816, 818 (2d Cir.), cert. denied, 423 U.S. 860, 96 S.Ct. 116, 46 L.Ed.2d 88 (1975). Mennuti asserts that the object of the conspiracy was to acquire control over the CNA check and that when the check was acquired, concededly outside of the limitations period, the conspiracy ended. We think it abundantly clear, however, that the scope of the conspiracy was not limited to receipt of the insurance check. The conspiratorial agreement also included a payoff to each conspirator, which in Mennuti’s case was the exclusive right to purchase the property at" }, { "docid": "53965", "title": "", "text": "about March 1995. The district court ruled as a matter of law that the conspiracy alleged in the indictment ended when the United States issued the export licenses, and that prosecution of Hitt was therefore barred by the five-year statute of limitations for conspiracy. See Hitt, 107 F.Supp.2d at 30; 18 U.S.C. § 3282. The government appeals pursuant to 18 U.S.C. § 3731 (2000). II. “A conspiracy is a partnership in criminal purposes.” United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 54 L.Ed. 1168 (1910). The general federal conspiracy statute prohibits conspiracies “to commit any offense against the United States” or “to defraud the United States ... in any manner or for any purpose.” 18 U.S.C. § 371. To prosecute a defendant under § 371, “the government must prove beyond a reasonable doubt that: (1) two or more persons formed an agreement either to commit an offense against or defraud the United States; (2) the defendant knowingly participated in the conspiracy with the intent to commit at least one of the offenses charged or to defraud the United States; and (3) at least one overt act was committed in furtherance of the common scheme.” United States v. Treadwell, 760 F.2d 327, 333 (D.C.Cir.1985); see also United States v. Wilson, 160 F.3d 732, 737 (D.C.Cir.1998); United States v. Gatling, 96 F.3d 1511, 1518 (D.C.Cir.1996). The five-year statute of limitations for a § 371 prosecution, see 18 U.S.C. § 3282, begins running “from the last overt act during the existence of the conspiracy.” Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 91 L.Ed. 196 (1946); see also Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). For the indictment to be timely with respect to Hitt, it must show that no more than five years prior to the filing of the indictment (i.e., at a point no earlier than October 19, 1994) (1) the conspiracy, as contemplated by the agreement, still existed, and (2) at least one overt act in furtherance of the conspiracy occurred. See Grünewald, 353 U.S. at" }, { "docid": "22161074", "title": "", "text": "3282 must show the existence of the conspiracy within the five years prior to the return of the indictment, and must allege and prove the commission of at least one overt act by one of the conspirators within that period in furtherance of the conspiratorial agreement.” United States v. Davis, 533 F.2d 921, 926 (5th Cir.1976); see Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 969-70, 1 L.Ed.2d 931 (1957) (addressing a three-year limitations period and concluding the government must prove that conspiracy was still in existence at beginning of limitations period and that at least one overt act was performed after that date); United States v. Dynalectric Co., 859 F.2d 1559, 1564 n. 6 (11th Cir.1988) (stating if an overt act is necessary for the commission of the conspiracy, then “the indictment must charge and the evidence at trial must show that an overt act in furtherance of the conspiracy was made within the limitations period”). By contrast, for “conspiracy statutes that do not require proof of an overt act, the indictment satisfies the requirements of the statute of limitations if the conspiracy is alleged to have continued into the limitations period.” United States v. Gonzalez, 921 F.2d 1530, 1548 (11th Cir. 1991) (citation and quotation marks omitted) (determining RICO conspiracy statute, unlike the general federal conspiracy statute, does not require an overt act). Unlike conspiracy statutes that do not require proof of an overt act, the conspiracy statute PUGH was charged under, 18 U.S.C. § 371, does require proof of an overt act. See 18 U.S.C. § 371 (requiring that “one or more [co-conspirators] do any act to effect the object of the conspiracy”). As recounted above, Wilson solicited the bribe to help pay his son’s college expenses in mid-1999, and Grady Pugh mailed a $4,500 check to UAB on August 24, 1999. Because the tuition had already been paid by FWDE, Wilson did not actually receive the full benefit of the $4,500 check until UAB disbursed the final installment to Wilson’s son in June 2000. The money disbursed to the son was a benefit" }, { "docid": "22162027", "title": "", "text": "been ongoing within the five year period preceding the indictment, and (2) “at least one overt act in furtherance of the conspiratorial agreement [must have been] performed within that period.” Grunewald v. United States, 353 U.S. 391, 396-97, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (“[T]he crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.”); see Brown v. Elliott, 225 U.S. 392, 401, 32 S.Ct. 812, 56 L.Ed. 1136 (1912) (“[In the case of an alleged conspiracy,] the period of limitations must be computed from the date of the last [overt act] of which there is an appropriate allegation and proof.” (internal quotation marks omitted)); see also United States v. Davis, 533 F.2d 921, 929 (5th Cir.1976). 1. Timeliness of First Indictment Ben Zvi argues that the wire fraud conspiracy as charged in the First Indictment was time barred because none of the alleged overt acts occurred within five years of the indictment’s return. We agree. The First Indictment was not returned until August 11, 1993, and its latest overt act was on April 12, 1988, well beyond the five year limitations period. The Government argues that the wire fraud conspiracy count is timely because it charged Ben Zvi with “caus[ing]” an electronic funds transfer to be made on August 15, 1988 from Lloyd’s of London to its attorney in New York, Alan J. Martin, and that this is an overt act even if it was not expressly charged as one. See, e.g., United States v. Smith, 197 F.3d 225, 228 (6th Cir.1999). The Government’s reliance on the wiring of funds from Lloyd’s to Martin fails to cure the untimeliness, however, because the wiring of the funds was not an overt act by Ben Zvi or her co-conspirators. To constitute an overt act for purposes of the statute of limitations the act must involve some affirmative conduct or deliberate" }, { "docid": "23155946", "title": "", "text": "Benussi was charged. Id. at 314. Nevertheless, the district court concluded that it had not been necessary for the jury to determine exactly which May warrant trades out of the Feehan account involved the 2,250 stripped warrants because trading records plainly showed that the Feehan account received the proceeds for all May sales on or after May 8, 1996. Citing this court’s opinion in United States v. Ben Zvi, 242 F.3d 89, 98 (2d Cir.2001), the district court ruled that such “knowing receipt” of conspiracy proceeds satisfied the requirement for an overt act within the limitations period. See United States v. Benussi, 216 F.Supp.2d at 317-19. II. Discussion A. A Co-Conspirator’s Knowing Receipt of Conspiracy Proceeds into a Brokerage Account Under His Control Can Constitute an Overt Act in Furtherance of the Charged Scheme Benussi asserts that receipt of conspiracy proceeds into the Feehan account on or after May 8, 2003, cannot, as a matter of law, bring the charged conspiracy within the statute of limitations. When a conspiracy requires proof of an overt act, the government satisfies the statute of limitations, see 18 U.S.C. § 3282(a), if it establishes that the conspiracy operated within the five-year period preceding the indictment, and a conspirator knowingly committed at least one overt act in furtherance of the scheme within that period. See Grunewald v. United States, 353 U.S. 391, 396-97, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); United States v. Ben Zvi, 242 F.3d at 97. Benussi acknowledges this test but asserts that (1) unilateral receipt of proceeds cannot establish an ongoing conspiracy, and (2) passive receipt of proceeds cannot constitute an overt act in furtherance of the scheme. We review these legal claims de novo. See United States v. Coriaty, 300 F.3d 244, 249 (2d Cir.2002). In evaluating Benussi’s twin challenges, we look to the scope of the charged conspiracy. As the Supreme Court explained in Grunewald v. United States, 353 U.S. at 397, 77 S.Ct. 963, “the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which" }, { "docid": "22162026", "title": "", "text": "superseding indictments were not independently timely since none asserted an overt act that was both within the statute of limitations and undertaken in furtherance of the conspiracy; and (3) the First Indictment was “facially invalid,” thus precluding the wire fraud conspiracy count in the superseding indictments from relating back to it for tolling of the statute of limitations. To establish a “reasonable probability” that her counsels’ failure to raise these statute of limitations arguments led to her conviction on the wire fraud conspiracy count, Ben Zvi must succeed on each of these arguments; that is, a conclusion against her on any one of these arguments would alone defeat her untimeliness challenge. If the wire fraud conspiracy was timely, there was no prejudice in counsel’s failure to argue untimeliness and her ineffective assistance claim fails. The applicable limitations period for a wire fraud conspiracy charge is five years. See 18 U.S.C. § 3282. For a conspiracy charge that requires proof of overt acts to be within the statute of limitations, the (1) conspiracy must still have been ongoing within the five year period preceding the indictment, and (2) “at least one overt act in furtherance of the conspiratorial agreement [must have been] performed within that period.” Grunewald v. United States, 353 U.S. 391, 396-97, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (“[T]he crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.”); see Brown v. Elliott, 225 U.S. 392, 401, 32 S.Ct. 812, 56 L.Ed. 1136 (1912) (“[In the case of an alleged conspiracy,] the period of limitations must be computed from the date of the last [overt act] of which there is an appropriate allegation and proof.” (internal quotation marks omitted)); see also United States v. Davis, 533 F.2d 921, 929 (5th Cir.1976). 1. Timeliness of First Indictment Ben Zvi argues that the wire fraud conspiracy as charged in the" }, { "docid": "14141472", "title": "", "text": "element of the crime.” Ianneili v. United States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 1290, 43 L.Ed.2d 616 (1975). “Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it.” United States v. Peoni, 100 F.2d 401, 403 (2d Cir. 1938). A conspirator’s liability for substantive crimes committed by his co-conspirators depends on whether the crimes were committed “in furtherance of the unlawful agreement or conspiracy.” Pinkerton v. United States, 328 U.S. 640, 645, 66 S.Ct. 1180, 1183, 90 L.Ed. 1489 (1946). Similarly, the admissibility against a defendant of a co-conspirator’s declaration depends on whether the declaration was made “during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). This determination can be made only after the scope of the agreement has been defined. The question of whether single or multiple conspiracies have been pled or proved depends on the nature of the agreement. United States v. Dardi, 330 F.2d 316, 327 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964). Because overt acts are acts “to effect the object of the conspiracy,” 18 U.S.C. § 371 (emphasis added), they are defined by reference to the conspiratorial agreement. United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947). In addition, when questions arise concerning matters such as venue, Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912), or the statute of limitations, Grunewald v. United States, 353 U.S. 391, 396-97, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), which depend on the formation of the agreement or the occurrence of overt acts, it becomes “crucial,” id. at 397, 77 S.Ct. 963, to determine the scope of the conspiratorial agreement. See Bridges v. United States, 346 U.S. 209, 224, 73 S.Ct. 1055, 97 L.Ed. 1557 (1953) (statute of limitations). Finally, the punishment that may be imposed under § 371, for a conspiracy to commit an offense against the United States, depends on whether the “object” of the conspiracy is a felony or a misdemeanor." }, { "docid": "54010", "title": "", "text": "two different ports (some 600 miles apart) in China. Id. at ¶ ¶ 51(21)-(23). During approximately the next four months, CATIC diverted six machines (licensed for export to Beijing) to a factory in Nanchang. Id. at ¶ 51(25). At the request of the Commerce Department, McDonnell Douglas inspected the machine tools in China and reported that the terms of the licenses had been violated — setting off a Commerce Department investigation that ultimately led to the October 19, 1999 indictment before us. See United States v. Hitt, 107 F.Supp.2d 29, 31 (D.D.C.2000). The key issue here is whether Count One of the indictment alleges a conspiracy continuing beyond October 19, 1994 and is thus properly chargeable under the five-year statute of limitations. See Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 91 L.Ed. 196 (1946) (statute “runs from the last overt act during the existence of the conspiracy.”). Count One explicitly alleges five overt actions taken after that date, see Count One ¶ 51 (21-25), but these five acts would not count for our purposes unless performed pursuant to the conspiracy. “[T]he crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.” Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). In fact the indictment provides ample signs that the claimed conspiracy extended not merely to the securing of export licenses (issued September 14, 1994) but also to the shipment of the equipment to China through actions that bring the conspiracy well within the five-year .window. An indictment need not be perfectly crafted to survive judicial scrutiny. “The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be" }, { "docid": "8243678", "title": "", "text": "term loan.” App. at 17. The applicable statute of limitations specifies a five year limitations period. 18 U.S.C. § 3282. Bornman insists that the statute of limitations on Count One began to run of April 24, 1998, the date he received the $25,000. Since the indictment was not returned until August 7, 2003, he contends that it was untimely. For a conspiracy indictment to fall within the statute of limitations, it is “incumbent on the Government to prove that ... at least one overt act in furtherance of the conspiracy was performed” within five years of the date the Indictment was returned. Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). “[T]he crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.” Id. at 397, 77 S.Ct. 963. The agreement of Luke and Bornman alleged in Count One is an agreement to commit a federal crime; namely, “to enrich themselves by corruptly soliciting and accepting payments from contractors with the intent of being influenced and rewarded in connection with the HPRP roofing program.” App. at 16. Once those payments had been solicited and accepted with the requisite intent to be influenced, the crime had been committed and the object of the conspiracy accomplished. The statute of limitations thus began to run on April 24, 1998. While it is true, as the government stresses, that the last two overt acts are alleged to have occurred later than that date, the government has failed to explain how either of those acts — the returning of one payment and the refusal to return the other — could have been in furtherance of an agreement to solicit and to accept payments from contractors. The government’s brief asserts only that because “Bornman and Luke conspired to take money from contractors in the ‘guise’ of short-term loans [in order] to" }, { "docid": "11886114", "title": "", "text": "897. In a conspiracy prosecution brought under § 371 the government in order to avoid the bar of the limitation period of § 3282 must show the existence of the conspiracy within the five years prior to the return of the indictment, and must allege and prove the commission of at least one overt act by one of the conspirators within that period in furtherance of the conspiratorial agreement. Grunewald v. United States, 1957, 353 U.S. 391, 396-97, 77 S.Ct. 963, 969-70, 1 L.Ed.2d 931, 939-40; Fiswick v. United States, 1946, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196, 200; Pinkerton v. United States, 5 Cir. 1944, 145 F.2d 252, aff'd 1946, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1002; United States v. Albanese, S.D.N.Y.1954, 123 F.Supp. 732, 734, aff'd, 2 Cir. 1955, 224 F.2d 879. Hence, preliminary to a determination of whether the statute of limitations bars prosecution for a conspiracy it is essential to delimit the scope of the conspiratorial agreement alleged in the indictment, “for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy”. Grunewald v. United States, supra, 353 U.S. at 397, 77 5. Ct. at 970, 1 L.Ed.2d at 939. Essentially the indictment here charged that the appellants conspired to violate Title 18, U.S.C., Section 1001, by agreeing to make false, fictitious, and fraudulent statements and representations to the Department of Labor, Manpower Administration, The indictment alleged and the government sought to prove at trial that five of the signatures on the Consortium Agreements and Definitions of a Consortium submitted to the Department of Labor were forged, and that none of the alleged Consortium members had agreed to hire and train the number of trainees represented in Baccus’ letter of August 13, 1969, to the Department. All of these representations and statements, however, were made to the Department on or before August 13, 1969, and were incorporated into the Consortium’s contract proposal. Thus, these acts occurred beyond the five" } ]

[ { "docid": "1679368", "title": "", "text": "on the premises and pose a danger to the police. Id. at 334-36, 110 S.Ct. 1093. Such a protective sweep “may be no more than ‘a cursory inspection of those spaces where a person may be found’ ” and “may Tast[ ] no longer than is necessary to dispel the reasonable suspicion of danger’ ... [nor] longer than the police are justified in remaining on the premises.” United States v. Gould, 364 F.3d 578, 587 (5th Cir.), cert. denied, 543 U.S. 955, 125 S.Ct. 437, 160 L.Ed.2d 317 (2004) (en banc) (quoting Buie, 494 U.S. at 1099, 110 S.Ct. 1093). The protective sweep may even occur after the suspect is arrested. Buie, 494 U.S. at 334, 110 S.Ct. 1093; Gould, 364 F.3d at 587. Additionally, the plain view doctrine allows police to seize items without a search warrant. Such a warrantless seizure is permissible if: (1) the police lawfully entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was “immediately apparent;” and (4) the police had a lawful right of access to the item. United States v. Buchanan, 70 F.3d 818, 825-26 (5th Cir.1995) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). (S) Analysis Virgil argues that the protective sweep was not supported by reasonable suspicion. Alternatively, Virgil argues that even a valid protective sweep would not include the space behind the door where the shotgun was discovered. Virgil’s arguments are unavailing. a. Reasonable Suspicion The police went to Virgil’s residence to arrest him on a firearm charge. They heard sounds coming from inside the rear of the residence; Virgil then opened the front door. When asked if anyone else was inside the residence, Virgil responded that he did not know. Additionally, standing in the doorway at the time of the arrest, police observed a rifle-type weapon inside the house. The officers, therefore, had a reasonable suspicion, based on specific and articulable facts, that both a firearm and another person might be at the residence, and had authority to perform" } ]

[ { "docid": "20635768", "title": "", "text": "Webster, 750 F.2d 307, 328 (5th Cir.1984). “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276 (1990). The protective sweep doctrine may apply even if the arrest occurs outside the home. See Watson, 273 F.3d 599; see also United States v. Merritt, 882 F.2d 916, 921 (5th Cir.1989); Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir.1989). Maldonado does not assert that the agents exceeded the acceptable scope of a protective sweep. Maldonado argues that the agents’ entry into the trailer was invalid because they lacked a search warrant, no exigent circumstances were present and even if exigent circumstances were present, the agents created any exigency. A. The government has the burden of proving the existence of exigent circumstances. Rico, 51 F.3d at 501. To justify a protective sweep, the government must show “articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. at 1098. Exigent circumstances include hot pursuit of a suspected felon, the possibility that evidence may be removed or destroyed, and danger to the lives of officers or others. Richard, 994 F.2d at 247-48. There is no set formula for determining when exigent circumstances justify a warrantless entry. United States v. Blount, 123 F.3d 831, 837 (5th Cir.1997). In evaluating exigency, we “consider the appearance of the scene of the search in the circumstances presented as it would appear to reasonable and prudent men standing in the shoes of the officers.” United States v. Rodea, 102 F.3d 1401, 1405 (5th Cir.1996) (internal quotations and citation omitted). If reasonable minds could differ, we do “not second-guess the judgment of experienced law enforcement officers concerning the" }, { "docid": "3729988", "title": "", "text": "just as Cruz omitted mention of the children in the trailer, she also may have failed to disclose the presence of others, including even the young man. Further, the officers had been told that a gun was in the house. Thus, the officers reasonably could have suspected that an unaccounted-for person, in the context of a volatile domestic dispute situation, might access the firearm and use it against them or other occupants of the trailer. These facts and reasonable inferences drawn therefrom could warrant a “ ‘reasonably prudent officer in believing that the area to be swept harbor[ed] an individual posing a danger to those on the ... scene.’ ” Id. at 393 (quoting Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). In light of the presence of a firearm at the scene of a domestic altercation, the officers acted reasonably in securing the scene by sweeping the trailer to determine whether other persons were present who might access that firearm. See, e.g:, United States v. Virgil, 444 F.3d 447, 451 (5th Cir.2006) (finding a protective sweep reasonable where police observed a firearm inside the front door of a house and heard noises near the back door of the house indicating that other persons might be present). B Rodriguez also contends that the seizure of the shotgun was not permissible under the plain-view doctrine because it was not immediately apparent that the shotgun was illegal. The district court found that the officers “would have been derelict in their duty, having once been informed that there was a weapon on the premises, ... if they had not taken steps to secure that firearm before they completed their investigation.” While the Fourth Amendment generally prohibits warrantless seizures, see Buie, 494 U.S. at 331, 110 S.Ct. 1093, the “plain view” exception allows police to seize items where: (1) the police lawfully entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was “immediately apparent;” and (4) the police had a lawful right of access to" }, { "docid": "23272613", "title": "", "text": "years’ imprisonment. Defendant appealed (No. 88-2354) to this court and the case was remanded. At resentencing, the court determined that under § 5Gl.l(b) of the Sentencing Guidelines, defendant would receive a “guideline sentence” of 15 years. The court then departed upward and sentenced defendant to 30 years. The defendant filed a second notice of appeal (No. 88-2689). Defendant first contends that the evidence upon which he was convicted was obtained illegally through a warrantless search and seizure. There is no dispute that Tsoodle seized the firearms without a warrant. The government, however, contends the search was justified as a “protective sweep” of the trailer. We agree. Search and seizures without a warrant are unlawful in violation of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “Protective sweeps” are an exception to the warrant requirement under the Fourth Amendment permitted to ensure an arresting officer’s safety. Maryland v. Buie, — U.S. —, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); United States v. Owens, 782 F.2d 146, 151 (10th Cir.1986). “A protective sweep is a quick and cursory viewing to check for other persons who might present a security risk.... ” United States v. Smith, 797 F.2d 836, 841 (10th Cir.1986). A protective sweep is reasonable if there are: “articulable facts which, taken together with the rational inferences from those facts, ... warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, — U.S. at —, 110 S.Ct. at 1098. Defendant contends that no reasonable person could perceive danger after watching him flee in his underwear, chased by sheriff deputies. Contrary to defendant’s assertion, however, the danger which justifies a protective sweep comes from the possible presence of other armed and dangerous persons in the vicinity. See Owens, 782 F.2d 146, 151. When Tsoodle went to defendant’s trailer to execute an arrest warrant he was aware that defendant had a history of firearm violations and might be armed and dangerous. Tsoodle testified at the suppression hearing that" }, { "docid": "18287478", "title": "", "text": "protects “[t]he right of the people to be secure in their persons, houses, papers, and .effects, against unreasonable searches :and seizures.” U.S. Const. amend. IV. The Supreme Court has long held that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quotation marks and citation omitted). “Because the prophylaxis of the Fourth Amendment is at its zenith with respect to an individual’s home, a warrantless search of a private residence is presumptively unreasonable unless one of a few well-delineated exceptions applies.” United States v. Infante, 701 F.3d 386, 392 (1st Cir. 2012) (quotation marks and citation omitted); see also Payton, 445 U.S. at 586, 100 S.Ct. 1371. One of those exceptions, and the one at issue with respect to the initial and indisputably non-consensual search of Delgado’s residence, is the exception for protective sweeps. The Supreme Court set out the rules governing protective sweeps in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). A protective sweep is “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others,” that “is narrowly confined to a .cursory visual inspection of those places in which a person might be hiding.” Id at 327, 110 S.Ct. 1093. Many protective sweeps take place following an arrest within a home, We .have also allowed protective sweeps, however, when an arrest “occurs just outside the home,” because such an arrest “can pose an equally serious threat to arresting officers as one that occurs in the home.” United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005). Buie instructs that a protective sweep is permissible only where there .are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. 1093. In" }, { "docid": "21869571", "title": "", "text": "S.Ct. 2408, 57 L.Ed.2d 290 (1978), as “[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate • governmental interests.’ ” United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)). In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the Supreme Court applied the Fourth Amendment reasonableness test and permitted a limited warrantless search, or protective sweep, in a home by officers who were executing an arrest warrant inside the home and who had a reasonable suspicion that an individual posing a threat to the officers was present elsewhere on the premises. Id. at 334, 110 S.Ct. 1093. The Supreme Court explained that the Fourth Amendment did not prohibit the officers from “tak[ing] reasonable steps to ensure their safety after, and while making, the arrest.” Id. Accordingly, the officers could search beyond the area immediately adjoining the place of arrest if they had “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. The Court emphasized, however, that any such warrantless sweep may not be unnecessarily invasive and “may extend only to a cursory inspection of those spaces where a person may be found.” Id. at 335, 110 S.Ct. 1093. Moreover, the sweep must “last[ ] no longer than is necessary to dis pel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Id. at 335-36, 110 S.Ct. 1093. Buie’s protective sweep exception to the warrant requirement was constructed on the foundational reasoning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20" }, { "docid": "20007758", "title": "", "text": "of a person’s home is a search incident to arrest, an exception first recognized in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Under this exception, police officers may, incident to arrest, conduct a plenary search of the arrestee’s person and the area within his immediate control, that is, “the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763, 89 S.Ct. 2034. Another such exception is the protective sweep, first described in Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Under the protective sweep exception, officers may, incident to arrest and “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Id. at 334, 110 S.Ct. 1093. A search beyond those parameters is justified when there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.; Leaf v. Shelnutt, 400 F.3d 1070, 1086 (7th Cir.2005). It is important to note that a protective sweep is “not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.” Buie, 494 U.S. at 335, 110 S.Ct. 1093; Leaf, 400 F.3d at 1086. The justification for a protective sweep is to protect “the safety of police officers, who have an interest in ensuring their safety when they lawfully enter a house. That interest justifies their ensuring that the dwelling does not harbor another person who is dangerous and who unexpectedly could launch an attack.” Leaf, 400 F.3d at 1087 (alteration omitted) (internal quotation marks omitted). Mr. Peals contends that the district court improperly granted summary judgment on his claim that the defendants’ search of his garage and home was unreasonable. He submits that the warrantless search of his garage and home" }, { "docid": "23272614", "title": "", "text": "(10th Cir.1986). “A protective sweep is a quick and cursory viewing to check for other persons who might present a security risk.... ” United States v. Smith, 797 F.2d 836, 841 (10th Cir.1986). A protective sweep is reasonable if there are: “articulable facts which, taken together with the rational inferences from those facts, ... warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, — U.S. at —, 110 S.Ct. at 1098. Defendant contends that no reasonable person could perceive danger after watching him flee in his underwear, chased by sheriff deputies. Contrary to defendant’s assertion, however, the danger which justifies a protective sweep comes from the possible presence of other armed and dangerous persons in the vicinity. See Owens, 782 F.2d 146, 151. When Tsoodle went to defendant’s trailer to execute an arrest warrant he was aware that defendant had a history of firearm violations and might be armed and dangerous. Tsoodle testified at the suppression hearing that after entering the trailer he saw the defendant flee out the window and heard three gunshots. He testified that he secured the premises to protect himself from the possibility of weapons or armed and dangerous persons inside the trailer. Under these circumstances Tsoodle’s actions were reasonable. The fact that defendant fled, along with the sounds of gunshots, was ample justification for a protective sweep. Given defendant’s actions and background it was not unreasonable for Tsoodle to believe that other dangerous people might be present or that defendant would return. Once lawfully inside the trailer, the plain view doctrine applies to support Tsoo-dle’s seizure of the three guns. “Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.” Horton v. California, — U.S. —, —, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 [1971]). Here," }, { "docid": "9610309", "title": "", "text": "that the search of the room was unreasonable, and the government bears the burden of demonstrating that it fits within an exception to the warrant requirement. Id. Citing the officers’ concern over the possible presence of an injured person in the room, the government contends that the warrantless entry and search was justified by the protective sweep doctrine. The district court agreed, relying on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, the Supreme Court recognized an exception to the warrant requirement for a protective sweep accompanying an in-home arrest. The Court held that when the police arrest an individual at his home, they may conduct a limited search of the premises without a warrant and without probable cause if there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. at 1098. This protective sweep doctrine derives from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which authorized a limited, pat-down search of an individual’s outer clothing during a street encounter where specific, articulable facts would lead a reasonable law enforcement officer to believe that the individual might be armed and dangerous. Buie, 494 U.S. at 331-34, 110 S.Ct. at 1096-98. Buie permits a similarly narrow search at the scene of an in-home arrest: [A] protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Id. at 335-36, 110 S.Ct. at 1099 (footnote omitted); see also id. at 327, 110 S.Ct. at 1094. At the same time, the investigating officer need not" }, { "docid": "23210718", "title": "", "text": "statutory prohibition on possession — a claim that we do not concede — does not vitiate its incriminating character at the time the officers saw it lying on the coffee table in plain view. The remaining question is whether the officers’ conduct after finding the stem was reasonable in the context of the Fourth Amendment. The officers concluded that the marijuana stem, considered in conjunction with the KVET investigation report, the shuffling noises they heard from the hallway, and Hill’s overtly nervous behavior, constituted probable cause to believe that a search of the apartment would reveal drugs. They therefore decided to send one of their number to obtain a search warrant. However, they concluded that they needed to secure the premises pending the issuance of the warrant. Accordingly, they conducted a “protective sweep” of the premises to ensure that there were no other persons hiding in the apartment who might pose a threat to the safety of the officers remaining on the scene. During the protective sweep, they found Mr. Taylor hiding in the bathroom and a duffle bag full of marijuana in the front closet. The United States Supreme Court has endorsed the practice of conducting a protective sweep of an area to ensure police officer safety when arresting suspects. See Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, the Court concluded: [T]he Fourth Amendment would permit the protective sweep undertaken here if the searching officer “possesse[d] a reasonable belief based on ‘specific and ar-ticulable facts which, taken together with the rational inferences from those facts, reasonably warranted]’ the officer in believing” that the area swept harbored an individual posing a danger to the officer or others. Id. at 327, 110 S.Ct. 1093 (quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). Citing Buie, we have said that “[i]n order for officers to undertake a protective sweep of an area they must articulate facts that would warrant a reasonably prudent officer to believe" }, { "docid": "3729987", "title": "", "text": "home, even though they had not specifically been told that there were other people in the residence. We agree. The officers were dispatched to the trailer on a 911 report of a domestic disturbance. The district court credited the officers’ testimony that Cruz gave permission to enter the trailer, and Rodriguez does not dispute that the officers were present for the legitimate law enforcement purpose of investigating Cruz’s 911 call. One of the officers testified that the first priority in responding to a domestic disturbance report is to secure the scene and create a safe environment in which to investigate the report. Upon entering the trailer the officers saw children. At that point, they knew that Cruz had not told the 911 operator about everyone who was present in the trailer. Indeed, as it turned out, Rodriguez’s father was also in the trailer. Moreover, the officers were aware of a previous domestic disturbance call (albeit a year earlier) at the trailer involving Rodriguez and a young man. They might have had a reasonable concern that just as Cruz omitted mention of the children in the trailer, she also may have failed to disclose the presence of others, including even the young man. Further, the officers had been told that a gun was in the house. Thus, the officers reasonably could have suspected that an unaccounted-for person, in the context of a volatile domestic dispute situation, might access the firearm and use it against them or other occupants of the trailer. These facts and reasonable inferences drawn therefrom could warrant a “ ‘reasonably prudent officer in believing that the area to be swept harbor[ed] an individual posing a danger to those on the ... scene.’ ” Id. at 393 (quoting Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). In light of the presence of a firearm at the scene of a domestic altercation, the officers acted reasonably in securing the scene by sweeping the trailer to determine whether other persons were present who might access that firearm. See, e.g:, United States v. Virgil, 444 F.3d" }, { "docid": "630307", "title": "", "text": "the safety of police officers and others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.... Beyond that, however, ... there must be articu-lable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), quoted in United States v. Biggs, 70 F.3d 913, 915 (6th Cir.1995). According to the Government, Fisher was a known felon, and the police had good reason to believe that he might present a danger to them. However, this argument is flawed, in that the challenged search was conducted after Fisher had been involuntarily removed from the bathroom. At the time of the search, no one had been arrested on any purported federal or state criminal charge even though everyone was in handcuffs. Indeed, no charges were ever brought against Hister and Thomas in relation to the incident. Thus, the search did not follow a lawful arrest. Instead, it precipitated the arrest in question. Moreover, it was immediately apparent that no one was hiding in the bathroom. Thus, the Government has a heavy burden to articulate further facts as to why a protective sweep would be appropriate. Each man was within the control of the arresting officers, and Fisher was outside the bathroom with his pants around his knees or ankles. On these facts and without more, the Court finds that the officers’ protective interests did not justify their search of the bathroom. The Government also maintains that when Karls reentered the bathroom, the firearm was in plain view and thus it was subject to a seizure. “The plain view doctrine allows a warrantless seizure of items if: (1) the officer is lawfully on the premises; (2) the discovery is inadvertent; and (3) the incriminating nature of the items is immediately apparent.” Brindley v. Best, 192 F.3d 525, 534 (6th Cir.1999) (citing United States v." }, { "docid": "5135668", "title": "", "text": "novo the ultimate question of whether the Fourth Amendment has been violated.” United States v. Walsh, 299 F.3d 729, 730 (8th Cir.2002) (internal quotation marks omit ted). The parties agree that there was no warrant for the search of Williams’s home. Therefore, the firearm is admissible only if the search falls into an exception to the warrant requirement. In Maryland v. Buie, the Supreme Court held that a properly limited warrantless protective sweep may be conducted “in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). A protective sweep must be quick and limited to a cursory look at places where a person could be found. Id. at 335-36, 110 S.Ct. 1093. The government alleges that the search of the bedroom did not require the officers to demonstrate any suspicion because the search was incident to arrest and the bedroom was adjacent to the living room, where Williams was arrested. See id. at 334, 110 S.Ct. 1093 (officers may, “without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched”). The district court made no findings of fact regarding the proximity of the two rooms or whether the scope of the search complied with this standard, nor did it rely on this basis for the admission of the challenged evidence. We need not address this contention on appeal, however, because we conclude that the officers had the reasonable suspicion required by Buie in order for a protective search to come within the limits of the Fourth Amendment. In coming to the conclusion that the protective sweep was justified by reasonable suspicion that dangerous accomplices may have been present, the district court found the following “articulable facts and resulting rational inferences:” (1) [T]he child who came to the door when police first knocked called" }, { "docid": "7407277", "title": "", "text": "the shotgun because the warrantless search of his residence was unlawful. The government, however, insists that the district court correctly found that the search was justified pursuant to both the protective sweep and emergency doctrines. Because we believe that the search was a lawful protective sweep, we need not, and do not, consider the applicability of the emergency doctrine. For a search to be lawful, it must be reasonable. See U.S. Const. amend. IV. And, “[a] warrantless search of a private residence is presumptively unreasonable.” United States v. Tibolt, 72 F.3d 965, 968 (1st Cir.1995). There are, however, exceptions to this general rule. One exception, announced by the Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), is that following an in-home arrest, police officers may conduct a protective sweep of the premises if “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. 1093. Such a search is limited to “a cursory inspection of those spaces where a person may be found.” Id. at 335, 110 S.Ct. 1093. Buie did not address whether a protective sweep can follow an arrest made just outside of the home (the situation we have here), and we have not previously spoken on the issue. Nevertheless, a number of our sister circuits allow protective sweeps in this situation. See, e.g., United States v. Cavely, 318 F.3d 987, 995-96 (10th Cir.2003); United States v. Wilson, 306 F.3d 231, 238 (5th Cir.2002); United States v. Colbert, 76 F.3d 773, 776-77 (6th Cir.1996); United States v. Henry, 48 F.3d 1282, 1284 (D.C.Cir.1995); United States v. Oguns, 921 F.2d 442, 446 (2d Cir.1990). In announcing the protective sweep doctrine in Buie, the Supreme Court found significant the “risk of danger in the context of an arrest in the home” due primarily to the reality that there may be “unseen third parties in the house.” 494 U.S. at 333," }, { "docid": "21869563", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge. We consider here whether a law enforcement officer who is lawfully present in a particular area of a home for a purpose other than the execution of an arrest warrant may conduct a protective sweep pursuant to Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), if he has reasonable suspicion that an individual present in another area of the home poses a threat to those on the premises. We conclude that an officer in a home under lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party, may conduct a protective sweep when the officer possesses “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the ... scene.” Id. at 334, 110 S.Ct. 1093. Defendant Alfred G. Miller appeals from his conviction following a bench trial in the United States District Court for the Southern District of New York (Lewis A. Kap-lan, Judge) for possessing a firearm after having been convicted previously of a felony, in violation of 18 U.S.C. § 922(g)(1). In advance of trial, Miller moved to suppress the admission of two firearms and Miller’s post-arrest custodial statement admitting possession of the firearms on the ground that they were procured in violation of the Fourth Amendment. At an evidentiary hearing held by the District Court, the evidence showed that a police officer, who was lawfully present in Miller’s apartment to carry out a protective order issued to Miller’s roommate, had followed Miller into his bedroom “[f]or safety,” Tr. of Suppression Hr’g, Jan. 30, 2004 (“Tr.”), at 24, and there encountered a firearm in plain view. The officer then arrested Miller, who turned over another firearm and admitted possession of both firearms while in custody. In the District Court, the parties disputed whether the seizure of the initially-recovered firearm violated the Fourth Amendment. Miller moved to suppress the evidentiary use of that" }, { "docid": "2737710", "title": "", "text": "had the right not to consent to the search. Under the totality of the circumstances we conclude that the government did not sustain its burden of proving that the consent was voluntarily given. Consequently, the district court’s determination that Grant voluntarily consented was ■ clearly erroneous. B. The Warrantless Search Was neither a Protective Sweep nor Justified by Exigent Circumstances In attempting to salvage the unconstitutional search of apartment 101, the government argues that the warrantless search of apartment 101 was valid as a protective sweep and that it was justified by exigent circumstances. In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) the Supreme Court defined “protective sweep” as “a quick and limited search of premises, incident to an arrest and conducted ■ to protect the safety of police officers or others.” 494 U.S. at 327,110 S.Ct. 1093. The Court further explained that: as an incident to the■ arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 334, 1Í0 S.Ct. 1093 (emphasis added); see also United States v. Noushfar, 78 F.3d 1442, 1448 (9th Cir.1996) (quoting Buie and noting that “[a] protective sweep may last ‘no longer than it takes to complete the arrest and depart the premises’ ”). In the present case, Deputy Kitts testified that when the officers detained Grant in the back of the apartment, Grant was not under arrest. Additionally, the government did not point to any facts that demonstrated that a reasonably prudent officer would have believed that the apartment “harbor[ed] an individual posing a danger to those on the arrest scene.” See Buie, 494 U.S. at 334, 110 S.Ct. 1093. Therefore,, the officers were" }, { "docid": "630306", "title": "", "text": "679—680 (6th Cir.1994) (upon responding to call that woman was being held against her will in apartment, the police were not justified in searching the apartment after the woman was freed), or (2) a search of an area that is more intrusive than is necessary to address the immediate danger, see United States v. Pierson, 219 F.3d 803 (8th Cir.2000) (warrantless entry of hotel room on basis of exigency did not justify search of garment bag therein). The evidence in the present case supports a finding that, once the bathroom door was open and it became apparent to the investigating officer that there was no woman in danger, the initial exigency evaporated. Thus, under these circumstances, the Government must set forth a different ground for the seizure of the weapon. In its pleadings, the Government contends that the search was necessary in order to protect the officers against some possible act of physical violence. Under federal law, [a] ‘protective sweep’ is a quick and limited search of premises, incident to an arrest, conducted to protect the safety of police officers and others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.... Beyond that, however, ... there must be articu-lable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), quoted in United States v. Biggs, 70 F.3d 913, 915 (6th Cir.1995). According to the Government, Fisher was a known felon, and the police had good reason to believe that he might present a danger to them. However, this argument is flawed, in that the challenged search was conducted after Fisher had been involuntarily removed from the bathroom. At the time of the search, no one had been arrested on any purported federal or state criminal charge even though everyone was in handcuffs. Indeed, no charges were ever brought against" }, { "docid": "11780126", "title": "", "text": "II. When reviewing a district court’s decision on a motion to suppress evidence, the court’s legal conclusions are reviewed de novo and its factual findings are upheld unless clearly erroneous. United States v. Lewis, 231 F.3d 238, 241 (6th Cir.2000). The district court granted Bishop’s motion to suppress the handgun, concluding that the exigent circumstances exception to the Fourth Amendment warrant requirement (specifically, the plain view exception) did not apply because Deputy Julian lacked a basis- for assuming that the handgun was contraband. The Fourth Amendment prohibits unreasonable searches and seizures. Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In delineating the contours of the Fourth Amendment’s warrant and probable cause requirements for searches and seizures, the Supreme Court has recognized several exceptions that acknowledge the need for police officers to protect themselves and the public from violence in circumstances where it would not be practical to require the officer to secure a warrant and where probable cause may be lacking. E.g., Buie, 494 U.S. at 334, 110 S.Ct. 1093 (incident to an in-home arrest, a police officer may look beyond “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” if “there [are] articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing the area to be swept harbors an individual posing a danger to those on the arrest scene”); Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (in context of a roadside stop, “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and that the suspect may gain immediate control of weapons”); Cady v. Dombroski, 413 U.S. 433, 447-48, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (automobile search" }, { "docid": "3729989", "title": "", "text": "447, 451 (5th Cir.2006) (finding a protective sweep reasonable where police observed a firearm inside the front door of a house and heard noises near the back door of the house indicating that other persons might be present). B Rodriguez also contends that the seizure of the shotgun was not permissible under the plain-view doctrine because it was not immediately apparent that the shotgun was illegal. The district court found that the officers “would have been derelict in their duty, having once been informed that there was a weapon on the premises, ... if they had not taken steps to secure that firearm before they completed their investigation.” While the Fourth Amendment generally prohibits warrantless seizures, see Buie, 494 U.S. at 331, 110 S.Ct. 1093, the “plain view” exception allows police to seize items where: (1) the police lawfully entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was “immediately apparent;” and (4) the police had a lawful right of access to the item. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In this case, the only element in question is whether the incriminating nature of the shotgun was “immediately apparent.” “The incriminating nature of an item is ‘immediately apparent’ if the officers have ‘probable cause’ to believe that the item is either evidence of a crime or contraband. Probable cause does not require certainty.” United States v. Waldrop, 404 F.3d 365, 369 (5th Cir.2005) (internal quotation marks omitted). However, if an officer has only a “reasonable suspicion,” then he does not have probable cause. Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). “If ... the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object,” then its incriminating nature is not immediately apparent and “the plain-view doctrine cannot justify its seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The shotgun was illegal because it was" }, { "docid": "9610308", "title": "", "text": "suppress the cocaine, contending that the packages had been seized in violation of the Fourth Amendment. The district court denied the motion after an evidentiary hearing. A jury subsequently convicted Arch at the conclusion of a one-day trial. II. ANALYSIS We review the denial of a motion to suppress for clear error. United States v. Rice, 995 F.2d 719, 722 (7th Cir.1993) (collecting cases). Because the resolution of such a motion is typically fact-dependent, we must “give particular deference to the district court that had the opportunity to hear the testimony and observe the demeanor of the witnesses.” United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990) (citations omitted). Motel guests enjoy the same constitutional protection against unreasonable searches and seizures as do the occupants of a private residence. United States v. Napue, 834 F.2d 1311, 1326 (7th Cir.1987); see also United States v. Rivera, 825 F.2d 152, 156 (7th Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d. 492 (1987). Because the deputies entered Arch’s room without a warrant, we presume that the search of the room was unreasonable, and the government bears the burden of demonstrating that it fits within an exception to the warrant requirement. Id. Citing the officers’ concern over the possible presence of an injured person in the room, the government contends that the warrantless entry and search was justified by the protective sweep doctrine. The district court agreed, relying on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, the Supreme Court recognized an exception to the warrant requirement for a protective sweep accompanying an in-home arrest. The Court held that when the police arrest an individual at his home, they may conduct a limited search of the premises without a warrant and without probable cause if there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. at 1098. This" }, { "docid": "14424485", "title": "", "text": "warrantless search might be reasonable under the Fourth Amendment if supported by some independent exception to the warrant requirement. One such exception “authoriz[es] officers making arrests in the home to conduct a ‘protective sweep’ — a ‘quick and limited search of the premises, incident to an arrest and conducted to protect the safety of the police officers and others.’ ” Id. (quoting Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). The record in the present case indicates that the officers did conduct a protective sweep of the residence, but given that El Bey has not challenged that aspect of the officers’ actions, we have no need to analyze whether such a search was justified under the circumstances. In any event, the alleged search of El Bey’s papers could not possibly fall within this exception to the warrant requirement, which permits officers to secure only those “spaces immediately adjoining the place of arrest from which an attack could be immediately launched” and, sometimes, to search more extensively if they reasonably believe “that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. 1093. But Officer Roop claims that he saw El Bey’s Social Security number on a piece of paper within plain view, and that his actions therefore fall within another well-established exception to the warrant requirement. “Under the plain view doctrine, ‘if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.’ ” United States v. Herndon, 501 F.3d 683, 692 (6th Cir.2007) (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). There are, however, at least two problems with the officers’ reliance on the plain-view doctrine to justify the seizure of El Bey’s Social Security number. First, we doubt that El Bey’s Social Security number was an object whose “incriminating character” was so “immediately" } ]

[ { "docid": "3713009", "title": "", "text": "would be required as a matter of law. Intervenor expected too much in these circumstances even if its request had been well pleaded. That problem can only be an issue for further collective bargaining between the parties. Intervenor also argues that the interlocutory appeal from the preliminary injunction which was pending in this court at the time of settlement divested the trial court of jurisdiction to dismiss the case as settled, citing International Paper Co. v. Whitson, 595 F.2d 559, 561 (10th Cir.1979). International Paper states the general rule that a timely notice of appeal divests the trial court of jurisdiction although it applied one of the exceptions. The interlocutory appeal which existed in this case involved only a limited issue leaving the case itself still pending on its merits in the district court. International Paper does not hold that the notice of appeal extinguishes the rights of the parties properly before the court to settle their lawsuit. The district court retains the authority to dismiss the case as settled, thereby bringing to an end any pending interlocutory appeal. The exception is plainly stated in 9 Moore’s Federal Practice 1Í 203.11 (2d ed. 1986) (footnote omitted): But where an appeal is taken from a judgment which does not finally determine the entire action, the appeal does not prevent the district court from proceeding with matters not involved in the appeal. Thus an appeal from an order granting or denying a preliminary injunction does not divest the district court of jurisdiction to proceed with the action on the merits. If the district court still had jurisdiction to proceed with the case on its merits without interfering with the issues involved in the interlocutory appeal, it also had jurisdiction to recognize that the parties had resolved the case between themselves. If intervenor SIBA has remaining problems now that this case has been settled between the original parties, it will have to resolve those problems elsewhere by other means than this case. Affirmed. . The settlement between plaintiffs and defendants in relevant part provided as follows: (1) All existing building and heavy and" } ]

[ { "docid": "22768356", "title": "", "text": "1329-34. Thus, the associational plaintiffs have standing to bring this action as representatives of their members. C. City of New York In its intervenor complaint, the City asserted that Operation Rescue’s activities constituted a public nuisance endangering the public safety and welfare, and caused a drain on the public fisc due to the need to respond to demonstrations without advance notice. In light of the ample proof at trial supporting these allegations, it is clear that the City has standing to intervene. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109-10, 99 S.Ct. 1601, 1612-13, 60 L.Ed.2d 66 (1979). II Jurisdiction On appeal, defendants renew their argument that their timely filed notices of appeal divested the district court of jurisdiction to consider plaintiffs’ motion for summary judgment and permanent injunctive relief. Defendants appealed from (1) the October 27 preliminary injunction, (2) the August 31 order awarding plaintiffs fees and expenses under Fed.R.Civ.P. 37(a)(4), (3) the November 4 order directing payment of contempt sanctions to plaintiff N.O.W., and (4) the December 9 order directing Operation Rescue to pay expenses associated with its violation of the TRO to the City of New York. As a general rule, an appeal may be taken only from a final judgment. Because it is a waste of judicial resources for two courts to be considering the same issues in the same case at the same time, the filing of a notice of appeal is jurisdictionally significant; it terminates the district court’s consideration and control over those aspects of the case that are on appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982). Actions thereafter taken by the district court are taken without jurisdiction. See Weiss v. Hunna, 312 F.2d 711, 7¡13 (2d Cir.) (appeal filed divests district court of power to grant or deny relief except with Court of Appeals permission), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). Congress permits, as an exception to the general rule, an immediate appeal from an interlocutory order that either grants or" }, { "docid": "7779825", "title": "", "text": "an appeal to the court of appeals; “manner” in § 636(c)(4) incorporates at least some jurisdictional filing rules, because nothing else sets the time limit for filing a notice of appeal from the magistrate’s decision. Although adjustments must be made (the Rules of Appel late Procedure call for papers to be filed with the clerk of the court of appeals, an insane “manner” for a case under § 636(c)(4)), these should be confined to trivia. See Adams v. Heckler, 794 F.2d 303 (7th Cir.1986); Gregg v. Manno, 667 F.2d 1116 (4th Cir.1981). On the other hand, we might say that § 2253 deals with appeals from one court to another, and that although the magistrate and district judge are different judicial officers, both are part of the same court. We need not decide. Section 2253 does not set a time limit on obtaining a CPC. Judge Duff issued one after the state flagged the question in its appellate brief. Although this “retroactively” creates jurisdiction, a retroactive effect is not itself sufficient to spoil the broth if, by the time the court decides, jurisdiction has been securely established. Newman-Green, Inc. v. Alfonzo-Larrain, — U.S. -, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). The only impediment to the belated CPC is that the notice of appeal transferred the case to this court, potentially blocking the district judge from taking steps of any kind. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). The principle that a case may be in only one court at a time has its exceptions, though. United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S.Ct. 2039, 2051 n. 42, 80 L.Ed.2d 657 (1984); Apostol v. Gallion, 870 F.2d 1335 (7th Cir.1989). District judges retain authority over questions not presented by the appeal and may take steps that do not present risks of duplicative action. Apostol, 870 F.2d at 1337-38; cf. United States v. Hocking, 841 F.2d 735 (7th Cir. 1988). So when the court of appeals hears an appeal from a “collateral order” the district judge" }, { "docid": "14846038", "title": "", "text": "that a quality integrated vocational education system will be achieved promptly- We will not recount the long history of this case here, as it is imperative that the SSD be prepared to serve all city and SSD students at the opening of school in September 1991. We will instead address the objections raised by the Board of Education of the City of St. Louis (City Board), the St. Louis Teachers Union (Union), and the Lid-dell plaintiffs to the plan approved by the district court. I. THE DISTRICT COURT’S JURISDICTION. As a preliminary matter, the City Board contends that the district court lacked jurisdiction to enter its 1991 order assigning full responsibility to the SSD for the operation of the metropolitan-area vocational schools. The City Board argues that the pending appeals of the district court’s 1990 order deprived the district court of jurisdiction to further supervise the vocational education programs. The City Board relies on the general rule, discussed in Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982), that the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over matters involved in the appeal. Id. at 58, 103 S.Ct. at 402. This reliance is misplaced. The district court’s orders in this desegregation case are injunctive in nature. See Liddell v. Board of Educ. of City of St. Louis (Liddell IV), 693 F.2d 721, 724 (8th Cir.1981). The Federal Rules of Civil Procedure provide that when an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the district court may “suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.” Fed.R.Civ.P. 62(c). The general rule that an appeal deprives a district court of jurisdiction over the issues appealed therefore is not absolute, and under certain circumstances, the district court retains jurisdiction to modify an injunction pending appeal. See 11 C." }, { "docid": "3773892", "title": "", "text": "Thus, this appeal would have to be dismissed for lack of jurisdiction. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67-74, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Wright et al., supra, § 3533.10, at 436. Such a result, however, depends on whether May’s second and third amended complaints supersede his original Amended Complaint, a question that turns on the district court’s authority to accept the second and third amended complaints despite the pendency of this appeal. As a general matter, a notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Under this rule, the district court retains jurisdiction to act only if the order being appealed or the proceeding before the district court is a discrete matter ancillary to the issues under consideration in the other court. Kusay v. United States, 62 F.3d 192, 193-94 (7th Cir.1995). Applying this rule to interlocutory qualified immunity appeals under Mitchell v. Forsyth, supra, Apostol v. Gallion, 870 F.2d 1335, 1337-38 (7th Cir.1989), held that a notice of appeal presumptively deprives the district court of jurisdiction to proceed with a trial on the merits of the claims on appeal. The Apostol court concluded that whether a public official asserting immunity should face a trial “is precisely the aspect of the case involved in the appeal” because the ultimate question in a Forsyth appeal is whether a public official should have to undergo the burdens of litigation. 870 F.2d at 1338 (internal quotations omitted). In this appeal, we face the related but unresolved issue of whether a district court retains jurisdiction to allow proceedings short of trial to go for- Applying this rule to interlocutory qualified immunity appeals under Mitchell v. Forsyth, supra, Apostol v. Gallion, 870 F.2d 1335, 1337-38 (7th Cir.1989), held that a notice of appeal presumptively deprives the district court of jurisdiction to proceed with a trial on the merits of the claims on appeal. The Apostol court concluded that whether" }, { "docid": "12376299", "title": "", "text": "of the motion to suppress. The general rule, and it is applicable to appeals under section 3731, is that an appeal transfers jurisdiction from the district court to the court of appeals, so that the two courts will not be stepping on each other’s toes. (For the general rule, see Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982) (per curiam), and for its application to appeals under section 3731 see United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir.1995).) There are exceptions, however, for situations in which the danger of such a collision is remote, as when the only issue for decision in the trial court is a motion for attorneys’ fees. For a list of examples see Kusay v. United States, 62 F.3d 192, 194 (7th Cir.1995). Since the right to appeal conferred by section 3731 is pinpointed on particular evidentiary rulings, there will be many cases in which the taking of the appeal will not require the district court to relinquish jurisdiction; that court will be able to continue getting the case ready for trial. This case, however, involves an almost complete overlap between the appealed and the retained issues, Ced’s Inc. v. U.S. E.P.A., 745 F.2d 1092, 1095 (7th Cir.1984) — indeed, the district judge thought that his ruling on the evidence in the van had predetermined his ruling on the other classes of evidence sought to be suppressed. The motion to dismiss the appeal for lack of jurisdiction is denied. But since the district judge has already ruled, albeit in excess of his jurisdiction, on the retained issues, no purpose would be served by requiring him to certify his intention to so rule. We therefore remand the case with instructions that the district court enter an order granting the motion to suppress in its entirety. The appeal from that order will bring up to us all the issues the government wants to appeal. So Ordered." }, { "docid": "11571246", "title": "", "text": "the plaintiffs’ motion for a preliminary injunction. In Weaver I this court found that the procedures outlined in the May 3 letter were constitutionally defective in at least three respects. First, the disclosure concerning payments by District 925 to affiliated unions was inadequate. Second, the objection procedure requiring notice by certified mail was unconstitutionally burdensome. Third, the internal union appeal procedure failed to satisfy Hudson’s requirements. 942 F.2d at 1046-47. On the basis of these findings, the court held that the district court erred in concluding that the plaintiffs had failed to establish that they and other nonunion employees represented by the union had suffered irreparable injury. This court reversed the district court’s order and remanded the case for the district court to grant the preliminary injunction. Id. Upon receiving this court’s mandate in the preliminary injunction appeal the district court entered an order directing the defendants “to cease collecting fair share fees from the wages of Plaintiffs and to return to them all such charges that have been collected to this date together with interest thereon.” No notice of appeal was filed from this order, and the defendants filed with the district court a notice of compliance. III. When the district court entered its final decision on the merits while the interlocutory appeal was pending, the parties should have made a motion in this court to consolidate the two appeals. Ordinarily, the district court is divested of jurisdiction in a case when one or more of the parties files a notice of appeal. There is authority, however, which holds that an appeal from an interlocutory order does not divest the trial court of jurisdiction to eon- tinue deciding other issues involved in the case. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (per curiam)); NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir.1987). Judicial economy is served by merging an appeal from denial of a preliminary" }, { "docid": "13022986", "title": "", "text": "immunity grounds or on the ground that McMath did not adequately allege the violation of a protectible liberty interest. Although we do not necessarily agree with the magistrate judge’s determination that the immunity claim was frivolous, we do believe that the factual allegations contained within the complaint are sufficient to defeat the immunity defense and survive the motion to dismiss. In his amended complaint, McMath alleged, among other things, that the defendants’ conduct violated his occupational liberty interest because (1) his discharge was accompanied by false and stigmatizing public charges, and (2) he was not given the opportunity for a “name clearing” hearing. The defendants raised a qualified immunity defense — except for the City of Gary, which could not, see Hedge v. County of Tippecanoe, 890 F.2d 4, 8 (7th Cir.1989)— and moved to dismiss the complaint. The magistrate judge denied the motion. The defendants then filed a notice of appeal, seeking interlocutory review of the judge’s order. The magistrate judge certified the claim as frivolous, see Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir.1989), and declined to stay the trial pending the appeal. McMath v. City of Gary, No. H 89-0179, slip op. at 5 (N.D.Ind. June 6, 1990). Thereafter, we entered an order denying the defendants’ motion for stay of the trial. In Apostol, we admonished district courts to act with restraint in using their power to certify the frivolity of an appeal, 870 F.2d at 1339, and we reiterate that admonition here. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), authorized pre-trial appeals for defendants claiming qualified immunity; that right would be eviscerated if district courts, cloaked with the authority of Apostol, could too easily certify even potentially meritorious appeals as frivolous. The stamp of frivolity should only be used when a Forsyth appeal is “unfounded.” Apostol, 870 F.2d at 1339. Given the rather spartan factual pleadings in the plaintiffs amended complaint, we do not with confidence pronounce that the defendants’ interlocutory appeal was frivolous. It is for the district court, and not us, to determine in the first instance" }, { "docid": "10469050", "title": "", "text": "permitted by prison rules) to write and to receive letters and visits from family, friends and attorneys. DISCUSSION No material facts are in dispute, and the Court finds that the Defendants are entitled to judgment as a matter of law. Even viewing the record in the light most favorable to the Plaintiffs, no reasonable person could find that the telephone system at W.I.C.C. violates the Plaintiffs’ constitutional rights. The Defendants have not unduly infringed upon either the Plaintiffs’ right of association, or their right of access to the courts. Generally, the effective filing of a notice of appeal transfers jurisdiction from the district court to the court of appeals with respect to all matters involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982). However, it is a well-recognized exception to the general rule that appeals from an order granting or denying a preliminary injunction do not divest the district court of jurisdiction. See Shevlin v. Schewe, 809 F.2d 447, 450-51 (7th Cir.1987); Chrysler Motors Corp. v. International Union, 909 F.2d 248, 250 (7th Cir.1990). This Court has, in fact, already certified that the Plaintiffs’ pending appeal is frivolous. See Order dated December 6, 1995; McMath v. City of Gary, Ind., 976 F.2d 1026, 1030 (7th Cir.1992); Apostol v. Gallion, 870 F.2d 1335, 1338-39 (7th Cir.1989). Any appeal of this decision can be consolidated with the appeal of the order-denying the Plaintiffs’ motion for a preliminary injunction. The Court should also note at the outset that this case has not been certified as a class action and will not be treated as such. The caption of the complaint indicated that the Plaintiffs were suing “on behalf of all similarly situated and affected” inmates. However, the Plaintiffs have clarified in their brief opposing summary judgment that they do not intend “and have not at any time alleged” that they were maintaining a class action. Because the Plaintiffs do not meet the criteria of Fed.R.Civ.P. 23(a) and because this case cannot survive summary judgment, class certification would be inappropriate. The" }, { "docid": "14977756", "title": "", "text": "Cooper & Eugene Gressman, Federal Practice & Procedure § 3949 at 359 (1977). Griggs notes an important limitation on the rule that just one court at a time possesses jurisdiction: the doctrine applies only to “those aspects of the case involved in the appeal.” A district court therefore may award attorneys’ fees while the merits are on appeal, Terket v. Lund, 623 F.2d 29, 33-34 (7th Cir.1980), and may consider whether to grant permanent injunctive relief while an appeal from a preliminary injunction is pending, Chrysler Motors Corp. v. International Workers Union, 909 F.2d 248, 250 (7th Cir.1990). A district court may address ancillary questions such as costs, the registration of judgments, and motions for certificates of probable cause. Chicago Truck Drivers Pension Fund v. Central Transport, Inc., 935 F.2d 114, 119-20 (7th Cir.1991); Wilson v. O’Leary, 895 F.2d 378, 382 (7th Cir.1990). And when a notice of appeal from an interlocutory order is a frivolous effort to block the normal progress of litigation, the district judge may so certify and continue with the case. McMath v. Gary, 976 F.2d 1026 (7th Cir.1992); Apostol, 870 F.2d at 1338-39. The hearing the district court conducted cannot be described as an ancillary or unrelated matter — it was the nub of the case, the very thing we directed the court to do on remand, but done before the remand occurred. Citing United States v. Stafford, 29 F.3d 181 (5th Cir.1994), the prosecutor asks us to cast aside technicalities such as the allocation of jurisdiction among tribunals. We do not think the mandate’s role in transferring jurisdiction some arcane precept that has outlived its usefulness; jurisdiction is power to act, and it is essential to have clear rules that define who, if anyone, possesses this power. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988); Helm v. RTC, 18 F.3d 446 (7th Cir.1994). We grant that Stafford offers the prosecutor strong support. The court of appeals remanded for resentencing, a step the district court accomplished before the mandate issued. The court of appeals disapproved this action but held that the district" }, { "docid": "9744785", "title": "", "text": "divests the trial court of jurisdiction over the case, but this is overbroad. As we explained in United States v. Ienco, 126 F.3d 1016, 1018 (7th Cir.1997), “the general rule, and it is applicable to appeals under section 3731, is that an appeal transfers jurisdiction from the district court to the court of appeals, so that the two courts will not be stepping on each other’s toes. (For the general rule, see Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982) (per curiam), and for its application to appeals under section 3731 see United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir.1995).) There are exceptions, however, for situations in which the danger of such a collision is remote, as when the only issue for decision in the trial court is a motion for attorneys’ fees. For a list of examples see Kusay v. United States, 62 F.3d 192, 194 (7th Cir.1995). Since the right to appeal conferred by section 3731 is pinpointed on particular evidentiary rulings, there will be many cases in which the taking of the appeal will not require the district court to relinquish jurisdiction; that court will be able to continue getting the case ready for trial.” See also Apostol v. Gallion, 870 F.2d 1335, 1337-38 (7th Cir.1989). Section 3731 requires the government, in appeals based on the second paragraph of the section (appeals from orders “suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding”), to file the notice of appeal before jeopardy attaches to the defendant. In a jury trial that occurs when the jury is sworn; and courts have ruled that the filing of the notice of appeal bars the district court from proceeding to the swearing in of the jury, lest by doing so the court make it difficult for the government to obtain relief (for example, that the trial start over again with the evidence whose exclusion had been challenged by the appeal). E.g., United States v. Brooks, 145 F.3d 446, 453-54 (1st Cir.1998); United States v." }, { "docid": "2463209", "title": "", "text": "good faith and presented irrelevant evidence at trial. On June 10, 1986, the district court denied the motion. While denying the motion, the court noted that the situation presented a close question. Most of the court's discussion centered upon whether the plaintiffs and their attorneys had violated Fed.R.Civ.P. 11. The court noted that the broad or “shotgun” allegations contained in the plaintiffs’ complaint appeared to evidence a lack of inquiry by the plaintiffs’ attorneys into the law and supporting facts. The court, however, stated that it was reluctant to impose sanctions because of the unsettled nature of the law in regard to the breadth of a judicial complaint based upon a narrower EEOC complaint. On July 8 Capital perfected an appeal to this court challenging the denial of its motion for attorneys fees. II. Since federal courts are forums of limited jurisdiction, we first address, sua sponte, whether the district court had jurisdiction to consider the motion for attorney’s fees/sanctions in light of the plaintiffs’ prior appeal of the case-in-chief. As a general rule the effective filing of a notice of appeal transfers jurisdiction from the district court to the court of appeals with respect to all matters involved in the appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59, 103 S.Ct. 400, 402, 74 L.Ed.2d 225, 228 (1982) (per curiam); Newball v. Offshore Logistics Int’l, 803 F.2d 821, 825 (5th Cir.1986). This general rule however is not absolute. See generally 9 Moore’s Federal Practice II 203.11 (1987). One well-recognized exception is that even though the judgment on the merits has been properly appealed and is pending in the courts of appeal, the district court retains jurisdiction to entertain and resolve a motion requesting attorney’s fees or sanctions. The basis for this exception is that attorney’s fees/sanctions are matters collateral to the merits of the action. See West v. Keve, 721 F.2d 91, 95 n. 5 (3d Cir.1983) (en banc); Masalosalo v. Stonewall Insurance Co., 718 F.2d 955, 956 (9th Cir.1983); Jones v. Illinois Dept, of Rehabilitation Services, 689 F.2d 724, 731-32 (7th Cir.1982); Rothenberg v. Security" }, { "docid": "10469049", "title": "", "text": "problem within our system.” The Defendant Cross contacted the woman at the number in question to advise her to obtain a new telephone and see if that would remedy the problem. Stroud had not given Cross permission to contact the woman. On March 27, 1995, AT & T corporate security placed a block on a telephone number on Stroud’s list. The reason provided for the block was “high toll to a new number.” AT & T advised the owner of that phone line that a block had been placed, why, and what she needed to do if she wanted the block removed. Between November of 1994 (when the new phone system was implemented) and October 1995: Stroud made 904 calls and used 14,348 minutes of phone time; Carter made 104 calls and used 890 minutes of phone time; Wren made 21 calls and used 147 minutes of phone time; and Lemons made 3 calls and used 40 minutes of phone time. During the time period in question, the Plaintiffs also were able (to the extent permitted by prison rules) to write and to receive letters and visits from family, friends and attorneys. DISCUSSION No material facts are in dispute, and the Court finds that the Defendants are entitled to judgment as a matter of law. Even viewing the record in the light most favorable to the Plaintiffs, no reasonable person could find that the telephone system at W.I.C.C. violates the Plaintiffs’ constitutional rights. The Defendants have not unduly infringed upon either the Plaintiffs’ right of association, or their right of access to the courts. Generally, the effective filing of a notice of appeal transfers jurisdiction from the district court to the court of appeals with respect to all matters involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982). However, it is a well-recognized exception to the general rule that appeals from an order granting or denying a preliminary injunction do not divest the district court of jurisdiction. See Shevlin v. Schewe, 809 F.2d 447, 450-51 (7th Cir.1987);" }, { "docid": "23585805", "title": "", "text": "to carry out eight tasks. For example, the first was to “[o]btain the services of a qualified health physics consultant approved by IDNS.” Although the Leavells did not seek a stay from either the district court or this court, their lawyer informed us at oral argument that they have not performed any of these tasks and have no intention of doing so now or in the future. Surprisingly, the district judge has declined to enforce the order, stating that the notice of appeal deprives him of jurisdiction. This is not so. A notice of appeal does not stay enforcement of a district court’s order. Thornton v. Wahl, 787 F.2d 1151 (7th Cir.1986). A judge may—and should—enforce an un-stayed injunction while an appeal proceeds. Resolution Trust Corp. v. Smith, 53 F.3d 72, 76 (5th Cir.1995); Chrysler Motor Corp. v. Allied Industrial Workers, 909 F.2d 248, 250 (7th Cir.1990); Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 16 Federal Practice and Procedure § 3921.2 (2d ed.1996). Otherwise the judge deprives the prevailing parties of the benefit of their judgment and rewards defiance. A notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal.\" Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (emphasis added), but whether the addressee of an injunction has complied is not a subject “involved in the appeal.” Whether the judge should have held a contempt hearing last year is water under the bridge, however. Because the third-party claim remains pending in the district court, appellate jurisdiction is questionable. Although the idns should have been dismissed immediately—for the eleventh amendment bars the claim to the extent it relies on state law, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 117, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), and the federal law to which the Leavells allude does not treat states and their agencies as “persons” subject to suit, see Arizonans for Official English v. Arizona, 520 U.S. 43, 69, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997);" }, { "docid": "10469051", "title": "", "text": "Chrysler Motors Corp. v. International Union, 909 F.2d 248, 250 (7th Cir.1990). This Court has, in fact, already certified that the Plaintiffs’ pending appeal is frivolous. See Order dated December 6, 1995; McMath v. City of Gary, Ind., 976 F.2d 1026, 1030 (7th Cir.1992); Apostol v. Gallion, 870 F.2d 1335, 1338-39 (7th Cir.1989). Any appeal of this decision can be consolidated with the appeal of the order-denying the Plaintiffs’ motion for a preliminary injunction. The Court should also note at the outset that this case has not been certified as a class action and will not be treated as such. The caption of the complaint indicated that the Plaintiffs were suing “on behalf of all similarly situated and affected” inmates. However, the Plaintiffs have clarified in their brief opposing summary judgment that they do not intend “and have not at any time alleged” that they were maintaining a class action. Because the Plaintiffs do not meet the criteria of Fed.R.Civ.P. 23(a) and because this case cannot survive summary judgment, class certification would be inappropriate. The Plaintiffs did file a motion for appointment, of counsel to investigate the possibility of class certification. Aside from mootness of the class certification issue, there is no indication that the Plaintiffs attempted on their own to retain an attorney prior to seeking court appointment, as required by Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir.1992). The Court additionally notes that the Plaintiffs are highly experienced litigators and finds that they do not need a lawyer to assist them in presenting their case. See Merritt v. Faulkner, 697 F.2d 761, 764 (7th Cir.1983). Inmate Stroud has litigated eleven civil rights actions in the U.S. District Court for the Central District of Illinois alone since 1989; Carter and Wren have filed four suits; and Lemons, three. The Plaintiffs’ motion for appointment of counsel “for determination of class certification” will accordingly be denied. Turning to the substantive merits of the case, the Court finds that the Plaintiffs improperly equate mere inconvenience with a violation of their civil rights. Prisoners, of course, are not entitled to" }, { "docid": "16450552", "title": "", "text": "and divests the district court of control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). The district court does not regain jurisdiction over those issues until the court of appeals issues its mandate. Courts have carved out a few narrow exceptions to this rule, such as where the defendant frivolously appeals or takes an interlocutory appeal from a non-appealable order. United States v. DeFries, 129 F.3d 1293, 1302-03 (D.C.Cir.1997) (emphasis added). These exceptions to the jurisdictional rule recited in DeFries figure prominently in the post -Forsyth jurisprudence of several circuits. In Apostol v. Gallion, 870 F.2d 1335 (7th Cir.1989), the court of appeals observed that although [Forsyth ] protects the interests of the defendants claiming qualified immunity, it may injure the legitimate interests of other litigants and the judicial system.... Defendants may seek to stall because they gain from delay at plaintiffs’ expense, an incentive yielding unjustified appeals. Defendants may take Forsyth appeals for tactical as well as' strategic reasons: disappointed by the denial of a continuance, they may help themselves to a postponement by lodging a notice of appeal. Id at 1338-39. In a subset of interlocutory appeals of qualified immunity rulings, the “notice of appeal may be so baseless that it does not invoke appellate jurisdiction” even when filed. Id at 1339. To address other “sham” appeals whose lack of merit is not so transparent as to preclude the transfer of jurisdiction to the appellate court in the first instance, the Seventh Circuit developed a “certification” process whereby “a district court may certify to the court of appeals that the appeal is frivolous and [retrieve jurisdiction to] get on with the trial.” Id The court admonished that [s]uch a power must be used with restraint, just as the power to dismiss a complaint for lack of jurisdiction because it is frivolous is anomalous and must be used with restraint. But it is there, and it may be valuable in cutting short the deleterious effects of unfounded appeals." }, { "docid": "11571247", "title": "", "text": "interest thereon.” No notice of appeal was filed from this order, and the defendants filed with the district court a notice of compliance. III. When the district court entered its final decision on the merits while the interlocutory appeal was pending, the parties should have made a motion in this court to consolidate the two appeals. Ordinarily, the district court is divested of jurisdiction in a case when one or more of the parties files a notice of appeal. There is authority, however, which holds that an appeal from an interlocutory order does not divest the trial court of jurisdiction to eon- tinue deciding other issues involved in the case. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (per curiam)); NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir.1987). Judicial economy is served by merging an appeal from denial of a preliminary injunction with the appeal from final judgment in a case where an appeal from the final judgment is taken prior to a decision on the interlocutory appeal. See, e.g., Ex parte National Enameling & Stamping Co., 201 U.S. 156, 162, 26 S.Ct. 404, 406, 50 L.Ed. 707 (1906); Phoenix Engineering, Inc. v. MK-Ferguson of Oak Ridge Co., 966 F.2d 1513 (1992); United States v. City of Chicago, 534 F.2d 708, 711 (7th Cir.1976). If that had been done in this case a single panel of the court could have decided all the issues. It might have required a second argument, given the sequence of events, but judicial time would have been saved by having all the issues considered and decided by one three-judge panel. Nevertheless, we now have the entire record before us and we will decide all of the issues presented by the parties in this appeal. A. The plaintiffs contend that the district court erred in denying their motion for class certification. They argue that they seek to represent all nonmember employees who" }, { "docid": "14977754", "title": "", "text": "reflect its actions. When the error comes to light, the court corrects the file to show what actually happened.” In re Singson, 41 F.3d 316, 318 (7th Cir.1994). The power to correct erroneous records does not imply ability to revise the substance of what transpired or to backdate events. See In re Jarvis, 53 F.3d 416, 418-19 n. 2 (1st Cir.1995); King v. Ionization International, Inc., 825 F.2d 1180, 1188 (7th Cir.1987); United States v. Taylor, 841 F.2d 1300, 1305 (7th Cir.1988). Cf. United States v. Caswell, 36 F.3d 29, 31 (7th Cir.1994). The United States does not ask us to correct records to show what happened; it wants us to change history. Incantation of Latin phrases does not bestow such an Orwellian power. We must decide whether the district judge had jurisdiction given the state of affairs when it acted. “[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982). See also Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985); Hovey v. McDonald, 109 U.S. 150, 157, 3 S.Ct. 136, 139-40, 27 L.Ed. 888 (1883); Apostol v. Gallion, 870 F.2d 1335, 1337 (7th Cir.1989); Henry v. Farmer City State Bank, 808 F.2d 1228, 1240 (7th Cir.1986). Just as the notice of appeal transfers jurisdiction to the court of appeals, so the mandate returns it to the district court. Until the mandate issues, the case is “in”-the court of appeals, and any action by the district court is a nullity. United States v. Wells, 766 F.2d 12, 19 (1st Cir.1985); Zaklama v. Mt. Sinai Medical Center, 906 F.2d 645, 649 (11th Cir.1990); 16 Charles Alan Wright, Arthur R. Miller, Edward H." }, { "docid": "13022987", "title": "", "text": "(7th Cir.1989), and declined to stay the trial pending the appeal. McMath v. City of Gary, No. H 89-0179, slip op. at 5 (N.D.Ind. June 6, 1990). Thereafter, we entered an order denying the defendants’ motion for stay of the trial. In Apostol, we admonished district courts to act with restraint in using their power to certify the frivolity of an appeal, 870 F.2d at 1339, and we reiterate that admonition here. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), authorized pre-trial appeals for defendants claiming qualified immunity; that right would be eviscerated if district courts, cloaked with the authority of Apostol, could too easily certify even potentially meritorious appeals as frivolous. The stamp of frivolity should only be used when a Forsyth appeal is “unfounded.” Apostol, 870 F.2d at 1339. Given the rather spartan factual pleadings in the plaintiffs amended complaint, we do not with confidence pronounce that the defendants’ interlocutory appeal was frivolous. It is for the district court, and not us, to determine in the first instance whether an appeal is frivolous. In light of our July 5 order, however, we reject the defendants’ argument that the filing of the notice of appeal divested the district court of jurisdiction over the qualified immunity issue. A baseless notice of appeal does not divest the district court of its jurisdiction. See id. That digression aside, we find that the immunity defense, even if not frivolous, is without merit. Although raising qualified immunity in a motion to dismiss— rather than in the more typical vehicle, a summary judgment motion, which has the benefit of additional factual development— is permissible, it means that the only facts before us in ruling on the motion are those alleged in the complaint, which we must take as true — although, of course, this does not mean they necessarily are true. McDonald v. Haskins, 966 F.2d 292, 292 (7th Cir.1992); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 847 (7th Cir.1990); Patton v. Przybylski, 822 F.2d 697, 698 (7th Cir.1987). In addition, we view all allegations in the light" }, { "docid": "14977755", "title": "", "text": "it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982). See also Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985); Hovey v. McDonald, 109 U.S. 150, 157, 3 S.Ct. 136, 139-40, 27 L.Ed. 888 (1883); Apostol v. Gallion, 870 F.2d 1335, 1337 (7th Cir.1989); Henry v. Farmer City State Bank, 808 F.2d 1228, 1240 (7th Cir.1986). Just as the notice of appeal transfers jurisdiction to the court of appeals, so the mandate returns it to the district court. Until the mandate issues, the case is “in”-the court of appeals, and any action by the district court is a nullity. United States v. Wells, 766 F.2d 12, 19 (1st Cir.1985); Zaklama v. Mt. Sinai Medical Center, 906 F.2d 645, 649 (11th Cir.1990); 16 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice & Procedure § 3949 at 359 (1977). Griggs notes an important limitation on the rule that just one court at a time possesses jurisdiction: the doctrine applies only to “those aspects of the case involved in the appeal.” A district court therefore may award attorneys’ fees while the merits are on appeal, Terket v. Lund, 623 F.2d 29, 33-34 (7th Cir.1980), and may consider whether to grant permanent injunctive relief while an appeal from a preliminary injunction is pending, Chrysler Motors Corp. v. International Workers Union, 909 F.2d 248, 250 (7th Cir.1990). A district court may address ancillary questions such as costs, the registration of judgments, and motions for certificates of probable cause. Chicago Truck Drivers Pension Fund v. Central Transport, Inc., 935 F.2d 114, 119-20 (7th Cir.1991); Wilson v. O’Leary, 895 F.2d 378, 382 (7th Cir.1990). And when a notice of appeal from an interlocutory order is a frivolous effort to block the normal progress of litigation, the district judge may so certify and continue with the case." }, { "docid": "16450551", "title": "", "text": "the district court’s decision to deny qualified immunity. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court ruled that a defendant denied qualified immunity by a district court could file an interlocutory appeal to obtain review of any disputed question of law. “[W]e hold that a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Forsyth, Id. at 530, 105 S.Ct. 2806. The Forsyth Court reasoned that “the entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id. at 526, 105 S.Ct. 2806 (emphasis in original). The act of filing an interlocutory appeal has jurisdictional implications: The filing of ... an interlocutory appeal, “confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). The district court does not regain jurisdiction over those issues until the court of appeals issues its mandate. Courts have carved out a few narrow exceptions to this rule, such as where the defendant frivolously appeals or takes an interlocutory appeal from a non-appealable order. United States v. DeFries, 129 F.3d 1293, 1302-03 (D.C.Cir.1997) (emphasis added). These exceptions to the jurisdictional rule recited in DeFries figure prominently in the post -Forsyth jurisprudence of several circuits. In Apostol v. Gallion, 870 F.2d 1335 (7th Cir.1989), the court of appeals observed that although [Forsyth ] protects the interests of the defendants claiming qualified immunity, it may injure the legitimate interests of other litigants and the judicial system.... Defendants may seek to stall because they gain from delay at plaintiffs’ expense, an incentive yielding unjustified appeals. Defendants may take Forsyth appeals for" } ]

[ { "docid": "22746322", "title": "", "text": "affidavits described the challenged conditions and charged that the authorities, after notification, had failed to take remedial action. Respondents’ affidavits denied that some of the alleged conditions existed, and described efforts by prison officials to improve the others. The District Court granted summary judgment for respondents. The Court of Appeals for the Sixth Circuit affirmed, 893 F. 2d 861 (1990), and we granted certiorari, 498 U. S. 808 (1990). I The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amend ment, Robinson v. California, 370 U. S. 660, 666 (1962), prohibits the infliction of “cruel and unusual punishments” on those convicted of crimes. In Estelle v. Gamble, 429 U. S. 97 (1976), we first acknowledged that the provision could be applied to some deprivations that were not specifically part of the sentence but were suffered during imprisonment. We rejected, however, the inmate’s claim in that case that prison doctors had inflicted cruel and unusual punishment by inadequately attending to his medical needs — because he had failed to establish that they possessed a sufficiently culpable state of mind. Since, we said, only the ‘“unnecessary and wanton infliction of pain’” implicates the Eighth Amendment, id., at 104 (quoting Gregg v. Georgia, 428 U. S. 153, 173 (1976) (joint opinion) (emphasis added)), a prisoner advancing such a claim must, at a minimum, allege “deliberate indifference” to his “serious” medical needs. 429 U. S., at 106. “It is only such indifference” that can violate the Eighth Amendment, ibid, (emphasis added); allegations of “inadvertent failure to provide adequate medical care,” id., at 105, or of a “negligent . . . diagnoses],” id., at 106, simply fail to establish the requisite culpable state of mind. Estelle relied in large measure on an earlier case, Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), which involved not a prison deprivation but an effort to subject a prisoner to a second electrocution after the first attempt failed by reason of a malfunction in the electric chair. There Justice Reed, writing for a plurality of the Court, emphasized that" } ]

[ { "docid": "22258552", "title": "", "text": "a satisfactory supply of bandages and kindred materials and that he was capable of changing his dressings without assistance. The court also found, in substance, that the level of care which DesRosiers received was adequate, if not ideal. Based on these findings, the court concluded that DesRosi-ers had failed to prove an Eighth Amendment violation. II Having reviewed the record with care, we believe that the district court’s findings and conclusions are supportable both legally and factually. We elaborate, albeit briefly. A. The Eighth Amendment, by its terms, prohibits the infliction of “cruel and unusual punishment.” When, as here, a convict claims that state prison officials violated the Eighth Amendment by withholding essential health care, he must prove that the defendants’ actions amounted to “deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Deliberate indifference is conduct that offends evolving standards of decency in a civilized society. See Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); Estelle, 429 U.S. at 102-03, 97 S.Ct. at 290-91. As such, it has both an objective component (was there a sufficiently serious deprivation?) and a subjective component (was the deprivation brought about in wanton disregard of the inmate’s rights?). See Wilson v. Setter, — U.S. -, 111 S.Ct. 2321, 2324-25, 115 L.Ed.2d, 271 (1991). In prac tice, as this case illustrates, these components may overlap or merge. In evaluating the quality of medical care in an institutional setting, courts must fairly weigh the practical constraints facing prison officials. See id. Ill S.Ct. at 2326. Moreover, inadvertent failures to provide medical care, even if negligent, do not sink to the level of deliberate indifference. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986); Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir.1981); Ferranti v. Moran, 618 F.2d 888, 890-91 (1st Cir.1980). In order to establish deliberate indifference, the complainant must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. See Wilson, 111" }, { "docid": "22944028", "title": "", "text": "jury’s verdict. See Gasperini v. Center for Humanities, Inc., 149 F.3d 137, 141-42 (2d Cir.1998) (a district court abuses its discretion when its decision to deny a motion for a new trial “results from an erroneous view of the law”). B. Eighth Amendment Standard “In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove ‘deliberate indifference to [his] serious medical needs.’” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). This standard incorporates both objective and subjective elements. The objective “medical need” element measures the severity of the alleged deprivation, while the subjective “deliberate indifference” element ensures that the defendant prison official acted with a sufficiently culpable state of mind. See id; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation. See Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; Snipes v. DeTella, 95 F.3d 586, 590-91, (7th Cir.1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 980, 136 L.Ed.2d 863 (1997). In Estelle v. Gamble, the Supreme Court explained that the Eighth Amendment’s prohibition on cruel and unusual punishments encompasses the deliberate failure to treat “a prisoner’s serious illness or injury” resulting in the infliction of unnecessary pain and suffering. Estelle, 429 U.S. at 105, 97 S.Ct. 285 (emphasis added). “Because society does not expect that prisoners will have unqualified access to health care,” a prisoner must first make this threshold showing of serious illness or injury in order to state an Eighth Amendment claim for denial of medical care. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); see also Chance, 143 F.3d at 702 (not all claims of inadequate medical care are “constitutionally cognizable”). Similarly, a prisoner must demonstrate more than “an inadvertent failure to provide adequate medical care” by prison officials to successfully" }, { "docid": "23378095", "title": "", "text": "“deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Recently, the Supreme Court held that the deliberate indifference standard includes both an objective and a subjective component. See Wilson v. Seiter, — U.S. —, 111 S.Ct. 2321, 2324-25, 115 L.Ed.2d 271 (1991). As to the former — the objective component, a court must ask whether there has been a sufficiently serious deprivation of the prisoner’s constitutional rights. With respect to the latter, a court must consider whether the deprivation was brought about by the defendants in wanton disregard of those rights. Id. To establish deliberate indifference, therefore, plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. See Wilson, 111 S.Ct. at 2324-25; Steading v. Thompson, 941 F.2d 498, 500 (7th Cir.1991); DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991). In my view, analysis of whether prison officials and medical personnel acted with “deliberate indifference” to plaintiff’s “medical needs” must begin with Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In Estelle, the Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. at 291. The Court cautioned, however, that mere negligence is not actionable. “A [prisoner’s] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” 429 U.S. at 106, 97 S.Ct. at 292. Rather, the plaintiff must allege conduct that is “repugnant to the conscience of mankind” or “incompatible with the evolving standards of decency that mark the progress of a maturing society.” Id. at 102, 105-06, 97 S.Ct. at 290, 291-92. Estelle is strikingly similar to the case at bar. There, the Court found that the plaintiff’s claims against a prison physician were not cognizable under § 1983." }, { "docid": "21165297", "title": "", "text": "WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997)). “[W]here the prisoner is receiving appropriate on-going treatment for his condition, but ... brings a ... denial of medical care claim based on a temporary delay or interruption in treatment,” the Second Circuit has explained that the “serious medical need inquiry can properly take into account the severity of the temporary deprivation alleged by the prisoner.” Smith v. Carpenter, 316 F.3d 178, 186(2d Cir.2003) (footnote omitted). The court in Smith added that “it’s the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner’s underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes.” Id. Nevertheless, the court added, significant “risks may be absent ... where the alleged lapses in treatment are minor and inconsequential,” id., and that “in most cases, the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm.” Id. at 187. The “deliberate indifference” component, as explained by the Supreme Court, includes both an objective and subjective element. Wilson v. Seiter, 501 U.S. 294, 298-299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). With respect to the objective aspect, the court must ask whether there has been a sufficiently serious deprivation of the prisoner’s constitutional rights. Id. “[O]nly those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Id. at 298, 111 S.Ct. 2321 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Thus, Eighth Amendment protection is limited to “a condition of urgency that may result in degeneration or extreme pain.” Chance, 143 F.3d at 702. With respect to the subjective aspect, the court must consider whether the deprivation was brought about by defendants in wanton disregard of those rights. Wilson, 501 U.S. at 298-99, 111 S.Ct. 2321. To establish indifference of a constitutional magnitude, plaintiff must prove" }, { "docid": "22922633", "title": "", "text": "v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). We share the Magistrate Judge’s skepticism over whether the Turner standard is applicable to the Cost Recovery Program, which by its own title might be more properly understood as a transfer of funds than a way to regulate prison behavior. We need not determine whether Turner is controlling because in either case, no constitutional violation has occurred. The complaint charged a violation of 42 U.S.C. § 1983 from the alleged “swindling [of) state prisoner[s]” under the Cost Recovery Program. The parties now focus on the Cruel and Unusual Punishments and Excessive Fines Clauses of the Eighth Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. We will address these provisions in turn. A. Eighth Amendment 1. Cruel and Unusual Punishments The Cruel and Unusual Punishments Clause of the Eighth Amendment proscribes “punishments which are incompatible with the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotes omitted). Prohibited are punishments that “involve the unnecessary and wanton infliction of pain, or are grossly disproportionate to the severity of the crime.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) (citations and internal quotes omitted). Prison conditions may amount to cruel and unusual punishment if they cause “unquestioned and serious deprivations of basic human needs .... [that] deprive inmates of the minimal civilized measure of life’s necessities.” Id. at 347, 101 S.Ct. 2392. Accordingly, when the government takes a person into custody against his or her will, it assumes responsibility for satisfying basic human needs such as food, clothing, shelter, medical care, and reasonable safety. DeShaney v. Winnebago Co. Dep’t of Social Svcs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). To demonstrate a deprivation of his basic human needs, a plaintiff must show a sufficiently serious objective deprivation, and that a prison official subjectively acted with a sufficiently culpable state of mind, i.e., deliberate indifference. Nami v." }, { "docid": "4099212", "title": "", "text": "adequate medical treatment was violated by Dr. Organ. A plaintiff may state an Eighth Amendment claim when he alleges that prison officials denied, delayed, or interfered with necessary medical treatment with deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment claim.... Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quotations and citations omitted). Additionally, it is only that conduct which is incompatible with “the evolving standards of decency that mark the progress of a maturing society,” Estelle, 429 U.S. at 102, 97 S.Ct. 285, or constitute the “unnecessary and wanton infliction of pain,” id. at 104, 97 S.Ct. 285, that rises to the level of deliberate indifference toward an inmate’s serious medical needs. There is a two-pronged test that a plaintiff must satisfy to state a cognizable claim under the Eighth Amendment. The test contains both an objective and a subjective component. First, as to the objective prong, the medical condition for which the plaintiff alleges he was denied treatment must be “sufficiently serious” to raise Eighth Amendment concerns. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). Ordinarily, a health condition is sufficiently serious to state a claim when it involves some urgency, risk of degeneration or death, or extreme pain. See id. Moreover, as noted above, a “sufficiently serious” deprivation occurs when a “prison official’s acts or omission ... results] in the denial of ‘the minimal civilized measure’ of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Second, as to the subjective prong, the plaintiff must allege that the charged official acted with a “sufficiently culpable state" }, { "docid": "12310355", "title": "", "text": "In this case, it is undisputed that the defendants named in Andrews’ complaint acted under color of state law. In order to succeed in his § 1983 claims, then, Andrews must establish that defendants operated with either “deliberate indifference” to his injuries or had “knowing willingness” that harm would occur. Unwin v. Campbell, 863 F.2d 124, 135-39 (1st Cir.1988) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). He also must be able to prove “specific conduct violating the plaintiffs rights, the time and the place of that conduct, and the identity of the responsible officials.” Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). C. Deliberate Indifference to Medical Needs The Eighth Amendment to the United States Constitution, applicable to the individual states through the Fourteenth Amendment, prohibits the states from inflicting “cruel and unusual punishments” on those convicted of crimes. Rhodes v. Chapman, 452 U.S. 387, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). This prohibition against cruel and unusual punishment requires that prison officials provide inmates with adequate medical care. Estelle, 429 U.S. at 103-04, 97 S.Ct. 285. In order to set forth a cognizable claim for a violation of his right to adequate medical care, an inmate must allege: (1) a serious medical need; and (2) behavior on the part of prison officials that constitutes deliberate indifference to that need. Id. at 106, 97 S.Ct. 285. The Court first addresses defendant CMS’s motion for judgment against plaintiffs claims for failure to meet Estelle ’s first prong: seriousness of medical needs. To satisfy the first prong of the Estelle inquiry, the inmate must demonstrate that his medical needs are serious. “[B]eeause society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’ ” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)." }, { "docid": "3850091", "title": "", "text": "relief he requested through the administrative process. See Murphy v. Magnusson, 98-CV-439, 1999 WL 615895, *2 (D.Me. July 27, 1999). Based upon the foregoing, plaintiffs Eighth Amendment claims must be dismissed. Even if I were to reach the merits, I would not find any Eighth Amendment liability. In order to establish that prison medical treatment was so inadequate as to amount to cruel and unusual treatment, a plaintiff must prove “deliberate indifference to [his] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The standard of deliberate indifference includes both objective and subjective components. “First, the alleged deprivation must be, in objective terms, ‘sufficiently serious.’” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.) (citations omitted), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995); Ramos v. O’Connell, 28 F.Supp.2d 796, 802 (W-D.N.Y.1998). Second, with respect to the subjective component, the defendant “must act with a sufficiently culpable state of mind.” Hathaway, 37 F.3d at 66. An official acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to an inmate’s health and safety. Rangolan v. County of Nassau, 217 F.3d 77, 79 (2d Cir.2000). The official “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Second Circuit has stated that a medical need is “serious” for constitutional purposes if it presents “ ‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain.’” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Hathaway, 37 F.3d at 66). Among the relevant factors are “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Id. (quoting, McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992)). With respect" }, { "docid": "21165298", "title": "", "text": "to a significant risk of serious harm.” Id. at 187. The “deliberate indifference” component, as explained by the Supreme Court, includes both an objective and subjective element. Wilson v. Seiter, 501 U.S. 294, 298-299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). With respect to the objective aspect, the court must ask whether there has been a sufficiently serious deprivation of the prisoner’s constitutional rights. Id. “[O]nly those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Id. at 298, 111 S.Ct. 2321 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Thus, Eighth Amendment protection is limited to “a condition of urgency that may result in degeneration or extreme pain.” Chance, 143 F.3d at 702. With respect to the subjective aspect, the court must consider whether the deprivation was brought about by defendants in wanton disregard of those rights. Wilson, 501 U.S. at 298-99, 111 S.Ct. 2321. To establish indifference of a constitutional magnitude, plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. See id. at 299, 111 S.Ct. 2321; DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991); Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040, 113 S.Ct. 828, 121 L.Ed.2d 698 (1992). The Court in Estelle also cautioned that mere negligence is not actionable. “A [prisoner’s] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eight Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. Rather, the plaintiff must allege conduct that is “repugnant to the conscience of mankind,” id. at 102, 97 S.Ct. 285, or “incompatible with the evolving standards of decency that mark the progress of a maturing society,” id. at 105-06, 97 S.Ct. 285. It is clear, then, that allegations of malpractice alone do not state" }, { "docid": "16685891", "title": "", "text": "pain medication to which Plaintiff was allergic. Second, Plaintiff claims that Dr. Supple acted in retaliation for a grievance Plaintiff had previously filed against Dr. Supple, in violation of the First Amendment. i. Deliberate Indifference to a Serious Medical Need Plaintiff claims that Dr. Supple was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment as a result of his February 14, 2006 appointment with Dr. Supple. “[D]e-liberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 101, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To sufficiently plead a claim of deliberate indifference, Plaintiff must allege facts showing both an objective and a subjective element: “(1) that the alleged deprivation of medical care is, objectively, ‘sufficiently serious’; and (2) that the official in question had a ‘sufficiently culpable state of mind,’ ” Sweeper v. Tavera, No. 08 Civ. 6372(HB), 2009 WL 2999702, at *5 (S.D.N.Y. Sept. 21, 2009) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)), because he “act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm will result.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006) 1. Objective Seriousness of the Underlying Medical Need To be “sufficiently serious” under the objective prong of the deliberate indifference standard, a deprivation of medical care must present a “condition of urgency, one that may produce death, degeneration, or extreme pain,” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), or possibly “result in further significant injury or the unnecessary and wanton infliction of pain.” Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir.2003) (internal quotations omitted). “[0]nly those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (citation and internal quotations omitted). Though “[tjhere is no settled, precise metric [to determine the objective seriousness] of a prisoner’s medical condition,” Brock v. Wright, 315 F.3d 158," }, { "docid": "918729", "title": "", "text": "no citation to any previous litigation in which Long presented issues or claims (supposedly dismissed) identical to the ones before the Court. Defendants have not pinpointed any final determination on an issue of ultimate fact litigated by the present parties. The parties raised the issue of preclusion in the Final Pretrial Order. The parties have neither discussed nor provided any support in fact or law for their contentions on this issue. The defendants have not established a record that demonstrates the elements required for claim or issue preclusion. Therefore, Defendants’ Motion to Dismiss on the basis of preclusion is denied. B. The Eighth Amendment The constitutional right of inmates to be free from cruel and unusual punishment is well established. The Supreme Court has held punishments which “ ‘involve the unnecessary and wanton infliction of pain’ ” repugnant to the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976). The Eighth Amendment protects inmates from prison officials’ “deliberate indifference to [their] serious medical needs.” Estelle, 429 U.S. at 104, 97 S.Ct. at 291. Thus, the government must provide medical care for its prison inmates. Id. at 103, 97 S.Ct. at 290. Failure to treat an inmate’s medical needs may produce unnecessary pain and suffering prohibited by the Eighth Amendment. Id. To prevail on an Eighth Amendment claim, an inmate must prove that (1) the deprivation was sufficiently serious and (2) the defendant officials acted with a sufficiently culpable state of mind. Choate v. Lockhart, 7 F.3d 1370, 1373 (8th Cir.1993). To be guilty of an Eighth Amendment violation a defendant must act with “deliberate indifference” to plaintiffs serious medical needs. Estelle, 429 U.S. at 104, 97 S.Ct. at 290. A “serious” medical need is one which (a) has been diagnosed by a physician as mandating treatment or (b) is so obvious that even a lay person would easily recognize the necessity for medical attention. Johnson v. Busby, 953 F.2d 349, 351 (8th Cir.1991). Courts have expanded the reach of" }, { "docid": "10571830", "title": "", "text": "when eight of the Defendants allegedly “conspired to deprive [him] of his personal property.” Complaint 94-2558 at ¶¶ 61-62. Because Plaintiff fails to state a cognizable claim under the Eighth Amendment, the Court will GRANT the Defendants’ Motion to Dismiss Plaintiffs claims thereunder with respect to the shipment of his property home. As noted above, to state a claim under the Eighth Amendment, Plaintiff must plead sufficient facts to satisfy both an objective and subjective test. To satisfy the objective test the Plaintiff must show that the “deprivation [is] sufficiently serious” to be considered cruel and unusual, and to satisfy the subjective test the Plaintiff must show that the “officials aet[ed] with a sufficiently culpable state of mind.” Wilson, 501 U.S. at 297, 111 S.Ct. at 2324. The standard of the objective test enunciated by the Supreme Court for prison conditions is that the deprivation deny “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). For example, the denial of necessary medical care for a serious medical condition is cruel and unusual because denial of such could result in torture or pain without penological purpose. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). In the instant complaint, Plaintiff alleges only that he was deprived of personal property that other prisoners were allowed. See Complaint 94^-2558 at ¶ 52. Plaintiff does not allege that he has been denied “the minimal measure of life’s necessities,” nor has he pleaded facts from which the Court could possibly conclude as much. Thus, Plaintiff does not satisfy the threshold objective showing necessary to state a cognizable claim under the Eighth Amendment. Neither does Plaintiff satisfy the requisite subjective showing that the Defendants acted with “ ‘deliberate indifference’.” Wilson, 501 U.S. at 303, 111 S.Ct. at 2327 (1991) (quoting LaFaut v. Smith, 834 F.2d 389, 391-92 (4th Cir.1987)). “Deliberate indifference” is tantamount to recklessness or the conscious disregard of a substantial risk of serious harm. Farmer, — U.S. at- -, 114 S.Ct. at 1979-80. Plaintiff" }, { "docid": "8243308", "title": "", "text": "the Eighth Amendment for use of excessive force. The motion for summary judgment is granted as to plaintiffs claims relating to deliberate indifference to his medical needs and the due process and equal protections claims, and those claims are dismissed. I. Medical “Deliberate Indifference” Claims To show that prison medical treatment was so inadequate as to amount to “cruel or unusual punishment” prohibited by the Eighth Amendment, plaintiff must prove that defendants’ actions or omissions amounted to “deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A medical need is “serious” for constitutional purposes if it presents “ ‘a condition of urgency1 that may result in ‘degeneration’ or ‘extreme pain.’ ” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995)). See also Harrison v. Barkley, 219 F.3d 132, 136-137 (2d Cir.2000) (“A serious medical condition exists where ‘the failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain’ ”) (quoting Chance, 143 F.3d at 702). The Supreme Court has explained that the “deliberate indifference” component includes both an objective and a subjective prong. See Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). With respect to the objective aspect, the court must ask whether there has been a sufficiently serious deprivation of the prisoner’s constitutional rights. With respect to the subjective element, the court must consider whether the deprivation was brought about by defendants in wanton disregard of those rights. Id. To establish deliberate indifference, then, plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. See id. at 299, 111 S.Ct. 2321; Anderson v. Burge, 539 F.Supp.2d 684, 687 (W.D.N.Y.2008). The Court in Estelle also cautioned that mere negligence is not actionable. A prisoner’s complaint that a medical professional “has been negligent in diagnosing or treating a medical condition does not state" }, { "docid": "21274850", "title": "", "text": "medical treatment was so inadequate as to amount to “cruel or unusual punishment” prohibited by the Eighth Amendment, plaintiff must prove that defendants’ actions or omissions amounted to “deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Second Circuit has stated that a medical need is “serious” for constitutional purposes if it presents “ ‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain.’ ” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995)). See also Harrison v. Barkley, 219 F.3d 132, 136-137 (2d Cir.2000) (“A serious medical condition exists where ‘the failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain’ ”) (quoting Chance, 143 F.3d at 702). Among the relevant factors for determining whether a serious medical need exists are “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992), overruled on other grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997)). As to the “deliberate indifference” component, the Supreme Court explained in Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), that this standard includes both an objective and a subjective component. With respect to the objective aspect, the court must ask whether there has been a sufficiently serious deprivation of the prisoner’s constitutional rights. With respect to the subjective element, the court must consider whether the deprivation was brought about by defendants in wanton disregard of those rights. Id. To establish deliberate indifference, therefore, plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. See id. at 299," }, { "docid": "22649148", "title": "", "text": "Eighth Amendment violation is a question of law that we review de novo. Id. Mere medical malpractice does not constitute cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Instead, the Eighth Amendment is violated when prison officials demonstrate “deliberate indifference to serious medical needs.” Id. at 104, 97 S.Ct. 285; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996). In order to establish a constitutional violation, Plaintiffs must satisfy both the objective and subjective components of a two-part test. Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). First, they must prove that Defendants have deprived them of the “ ‘minimal civilized measure of life’s necessities.’ ” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998) (quoting Wilson, 501 U.S. at 304, 111 S.Ct. 2321). Second, Plaintiffs must demonstrate that Defendants acted with “deliberate indifference” in doing so. Wilson, 501 U.S. at 297, 303, 111 S.Ct. 2321. Prison officials are deliberately indifferent to a prisoner’s serious medical needs when they “ ‘deny, delay, or intentionally interfere with medical treatment.’ ” Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir.1992) (quoting Hunt v. Dental Dep’t, 865 F.2d 198, 201 (9th Cir.1989)). However, the officials’ conduct must constitute “ ‘unnecessary and wanton infliction of pain’ ” before it violates the Eighth Amendment. Estelle, 429 U.S. at 104, 97 S.Ct. 285 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)); see also Frost, 152 F.3d at 1128. This is not an easy test for Plaintiffs to satisfy. To the contrary, this court has explained: The Eighth Amendment is not a basis for broad prison reform. It requires neither that prisons be comfortable nor that they provide every amenity that one might find desirable. Rather, the Eighth Amendment proscribes the “unnecessary and wanton infliction of pain,” which includes those sanctions that are “so totally without penological justification that it results in the gratuitous infliction of suffering.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982) (citations omitted) (quoting Gregg, 428 U.S. at 173," }, { "docid": "8243307", "title": "", "text": "DECISION AND ORDER DAVID G. LARIMER, District Judge. Plaintiff, Jermaine Wright (“Wright”), a prisoner in the custody of the New York State Department of Correctional Services (“DOCS”) confined at the Attica Correctional Facility, commenced this civil rights action, pro se. The claims mostly stem from an incident that occurred on April 15, 2004 at the Attica facility. Wright’s principal claim is that four defendants, Correction Officers Donald Hunter, Shawn McIntyre, John Jones and K. Berbary, used excessive force against him, thus violating Wright’s Eighth Amendment rights. Wright also alleges that defendants B. Frisby, R. Magee, David E. Nicosia, Las-kowski, J. Alves and J. Northup violated his rights under the Eighth Amendment by acting with deliberate indifference to his medical needs. In addition, Wright asserts due process and equal protection claims, based on the conduct of the disciplinary hearings that were held relative to Wright’s actions on April 15, 2004. Defendants move for summary judgment in their favor as to all claims except for the claims against Hunter, McIntyre, Jones and Berbary alleging a violation of the Eighth Amendment for use of excessive force. The motion for summary judgment is granted as to plaintiffs claims relating to deliberate indifference to his medical needs and the due process and equal protections claims, and those claims are dismissed. I. Medical “Deliberate Indifference” Claims To show that prison medical treatment was so inadequate as to amount to “cruel or unusual punishment” prohibited by the Eighth Amendment, plaintiff must prove that defendants’ actions or omissions amounted to “deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A medical need is “serious” for constitutional purposes if it presents “ ‘a condition of urgency1 that may result in ‘degeneration’ or ‘extreme pain.’ ” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995)). See also Harrison v. Barkley, 219 F.3d 132, 136-137 (2d Cir.2000) (“A serious medical condition exists where ‘the failure to treat" }, { "docid": "5223186", "title": "", "text": "Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968). II. The Eighth Amendment, applicable to the states by virtue of the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 662, 82 S.Ct. 1417, 1418, 8 L.Ed.2d 758 (1962), prohibits the infliction of “cruel and unusual punishment” on individuals convicted of crimes. The phrase “cruel and unusual punishment” today prohibits punishment that, “although not physically barbarous, ‘involves the unnecessary and wanton infliction of pain.’ ” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). The Supreme Court, in Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976), “conclude[d] that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ ... proscribed by the Eighth Amendment.” In Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991), the Supreme Court recently reaffirmed that a prisoner claiming that his conditions of confinement constitute unnecessary and wanton infliction of pain must show “deliberate indifference” to “serious medical needs.” Thus, the inquiry regarding an alleged Eighth Amendment violation contains two parts: an objective component asking whether the deprivation was suffi ciently serious and a subjective component asking whether the officials acted with a sufficiently culpable state of mind. Id. 111 S.Ct. at 2324. Moreover, allegations of “inadvertent failure to provide adequate medical care” or “negligent diagnosis,” the Court explained in Wilson, do not establish an Eighth Amendment violation because an intent requirement is implicit in the word “punishment.” Id. 111 S.Ct. at 2325, 2328. Thus, to survive the summary judgment motion and proceed to trial, Clemmons must present specific facts that would allow a reasonable fact finder to conclude that he had a serious medical need and that the defendants were deliberately indifferent to that need. III. Turning to the first issue — a serious medical need — Clemmons submitted his own affidavit and affidavits of Daryl Brown, Louis" }, { "docid": "22437669", "title": "", "text": "by deliberately delaying plaintiff Mark Hill’s receipt of proper medical care” for approximately four hours. R9-198-8. Significantly, the district court did not analyze the objective reasonableness of Swain’s determination that Hill’s medical condition did not warrant immediate medical treatment. The Eighth Amendment prohibition against “cruel and unusual” punishment mandates that those who are incarcerated after criminal conviction must not be subjected to punishment that involves “the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976). The Supreme Court specifically has held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (emphasis added) (quoting Gregg, 428 U.S. at 173, 96 S.Ct. at 2925). Neither “inadvertent failure to provide adequate medical care” nor a physician’s “negligen[ce] in diagnosing or treating a medical condition” states a “valid claim of medical mistreatment under the Eighth Amendment.” Id. at 105, 106, 97 S.Ct. at 292. “[A] prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106, 97 S.Ct. at 292. “A finding of deliberate indifference necessarily precludes a finding of qualified immunity; prison officials who deliberately ignore the serious medical needs of inmates cannot claim that it was not apparent to a reasonable person that such actions violated the law.” Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir.1992). The Estelle “deliberate indifference to serious medical needs” standard has an objective and a subjective component. Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (subjective component); Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) (objective component). The objective component of an Eighth Amendment claim is “contextual and responsive to ‘contemporary standards of decency.’ ” Hudson v. McMillian, — U.S. -, -, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (quoting Estelle, 429 U.S. at" }, { "docid": "22704877", "title": "", "text": "Process clause requires the government to provide appropriate medical care. As the [Supreme] Court -observed in [City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244[, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605] (1983) ], the Due Process rights of a pretrial detainee are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” * * * The protection afforded a sentenced prisoner under the Eighth Amendment was discussed in Estelle v. Gamble, 429 U.S. 97, 106[, 97 S.Ct. 285, 292, 50 L.Ed.2d 251] ... (1976). There the Court said: “Acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” constitute cruel and unusual punishment under the Constitution. Boring, 833 F.2d at 471. The Supreme Court has recently set forth the standard for violations of the Eighth Amendment based on nonmedical conditions of confinement. Setter, — U.S. at -, 111 S.Ct. at 2324, 2326-27. This standard would also apply to appellants as pretrial detainees through the Due Process Clause. The standard has an objective and a subjective component, just as the Estelle standard does. A plaintiff must prove that prison officials acted with deliberate indifference and that he or she suffered a deprivation of “ ‘the minimal civilized measure of life’s necessities.’ ” Setter, — U.S. at —, —, 111 S.Ct. at 2324, 2326-27 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). a. Causing the Lice Infestation Plaintiffs alleged that the jail and county officials’ “deliberate indifference towards Ferri’s care and welfare while he was housed in the DHU caused him to become infected with head and body lice as a result of providing him with dirty bed linen or mattresses.” Although we recognize that the Eighth Amendment “does not mandate comfortable prisons,” Rhodes, 452 U.S. at 349, 101 S.Ct. at 2400, we believe that inmates do have a right to be free of conditions that generate infestations of vermin. Plaintiffs have therefore stated a claim sufficient to withstand dismissal under the Seiter standard, provided the claim also withstands scrutiny under the applicable statute" }, { "docid": "22420436", "title": "", "text": "U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). An Eighth Amendment claim arising out of inadequate medical care requires a demonstration of “deliberate indifference to [a prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The standard for deliberate indifference includes a subjective component and an objective component. See Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998) (per curiam). Subjectively, the official charged with deliberate indifference must act with a “sufficiently culpable state of mind.” See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). That is, the official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective component requires that “the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (internal quotation marks omitted). Medical malpractice does not rise to the level of a constitutional violation unless the malpractice involves culpable recklessness—“an act or a failure to act by [a] prison doctor that evinces a conscious disregard of a substantial risk of serious harm.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) (internal quotation marks omitted). In this connection, the Supreme Court has held that “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. It has long been the rule that a prisoner does not have the right to choose his medical treatment as long as he receives adequate treatment. See id. at 106-07, 97 S.Ct. 285. It is well-established that mere disagreement over the proper treatment does" } ]

[ { "docid": "4210321", "title": "", "text": "not go on to balance the Government’s interest in confidentiality against the public’s interest in disclosure. Before we proceed to the merits, however, we must address a threshold issue, namely, whether this suit is barred by the doctrine of sovereign immunity. A. Sovereign Immunity The mandamus statute provides: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. It is well settled that this statute does not by itself waive sovereign immunity. See, e.g., Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 3-4 (1st Cir.1989); Doe v. Civiletti, 635 F.2d 88, 89 (2d Cir.1980); Smith v. Grimm, 534 F.2d 1346, 1352 n. 9 (9th Cir.1976); Essex v. Vinal, 499 F.2d 226, 231-32 (8th Cir.1974); McQueary v. Laird, 449 F.2d 608, 611 (10th Cir.1971); see also Public Citizen v. Kantor, 864 F.Supp. 208, 213 (D.D.C.1994) (“The generally accepted rule is that § 1361 does not constitute a waiver of sovereign immunity by the United States”). If a plaintiff seeks a writ of mandamus to force a public official to perform a duty imposed upon him in his official capacity, however, no separate waiver of sovereign immunity is needed. See, e.g., Chamber of Commerce v. Reich, 74 F.3d 1322, 1329 (D.C.Cir.1996). This so-called Larson-Du-gan exception to sovereign immunity is described by the Supreme Court as follows: There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. ... [Wjhere the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief. Larson, 337 U.S. at 689, 69 S.Ct. at 1461; see also Dugan v. Rank, 372 U.S. 609, 621-22," } ]

[ { "docid": "8645313", "title": "", "text": "seek to invoke this Court’s jurisdiction under the general federal question statute. See 28 U.S.C. § 1331. Section 1331 grants federal courts original subject matter jurisdiction over civil actions which arise under “the Constitution, laws, or treaties of the United States.” However, Section 1331 does not, of itself, waive the government’s sovereign immunity from suit. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied sub. nom., Holloman v. Clark, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984); Rodin v. United States, 699 F.2d 681, 684-85 (4th Cir.1983); Garcia v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982); De Vilbiss v. SBA, 661 F.2d 716, 718 (8th Cir.1981). The plaintiff must look to the statute giving rise to the cause of action for such a waiver. Assuming such a waiver is found, for example under the Declaratory Judgment Act, under CERCLA or under the APA, and no contrary intent were found in the waiving statute, this court then would have subject matter jurisdiction pursuant to Section 1331. B. The Declaratory Judgment Act Defendant correctly contends that the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, does not establish a separate and independent basis for subject matter jurisdiction. The Tenth Circuit has stated: It is settled that 28 U.S.C. § 2201 does not confer jurisdiction on a federal court where none otherwise exits. That statute was adopted by Congress to enlarge the range of remedies available in federal court, and does not extend subject matter jurisdiction to cases in which the court has no independent basis for jurisdiction. Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 822 (10th Cir.1981); see also Schulke v. United States, 544 F.2d 453, 455 (10th Cir.1976) (“One seeking relief under the [declaratory judgment] statute must establish a separate and independent basis for jurisdiction”). Additionally, the Declaratory Judgment Act does not operate to waive the United States’ sovereign immunity. See, e.g., Balistrier v. United States, 303 F.2d 617 (7th Cir.1962); Anderson v. United States, 229 F.2d 675 (5th Cir.1956). As with 28 U.S.C." }, { "docid": "7034425", "title": "", "text": "immunity must be “construed strictly in favor of the sovereign.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983); see also Department of Army v. Blue Fox, Inc., 525 U.S. 255, 119 S.Ct. 687, 691, 142 L.Ed.2d 718 (1999) (waiver of sovereign immunity must be unequivocally expressed in the statutory text); Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (same); Research Triangle Inst., 132 F.3d at 988 (“A waiver of federal sovereign immunity can be found in one of two places: in specific statute governing governmental entity, or in one of broad waivers of immunity made by Congress for certain classes of federal agencies.”) Because the defendant here, the EEOC, is an agency of the federal government, this action, although nominally against a federal agency, is, in reality, one against the United States. Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963). Thus, in order for Circuit City’s suit for declaratory judgement to proceed, it must be shown that the United States has clearly and unequivocally waived sovereign immunity with respect to the action here presented. 1. Jurisdiction Under Circuit City’s Complaint Circuit City’s complaint is the logical place to begin the inquiry. The complaint invokes the Court’s jurisdiction pursuant to the following: (1) general federal-question jurisdiction under 28 U.S.C. § 1331; (2) federal jurisdiction over commerce and antitrust regulations under 28 U.S.C. § 1337; (3) the Declaratory Judgement Act, 28 U.S.C. § 2201; (4) Title VII, 42 U.S.C. §§ 2000e-5 and 2000e-6; (5) the American with Disabilities Act, 42 U.S.C. § 12117; (6) the Age Discrimination in Employment Act, 29 U.S.C. § 626; and (7) the Equal Pay Act, 29 U.S.C. § 206(e). It is well settled that 28 U.S.C. §§ 1331 and 1337 do not, in and of themselves, operate as a general waiver by the United States of its sovereign immunity. Randall v. United States, 95 F.3d 339, 345 (4th Cir.1996) (§ 1331); Food Town Stores, Inc. v. E.E.O.C., 708 F.2d 920, 922 (4th Cir.1983), cert. denied, 465 U.S. 1005," }, { "docid": "9782221", "title": "", "text": "Indian School property. Because the Secretary’s Quiet Title Act argument involves subject matter jurisdiction, we begin there. We review questions involving subject matter jurisdiction de novo. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.1999), cert. denied, 528 U.S. 1106, 120 S.Ct. 845, 145 L.Ed.2d 713 (2000). Neighbors asserts the district court had jurisdiction under 28 U.S.C. §§ 1331, 2201, and 2202. The general federal question statute, 28 U.S.C. § 1331, grants the district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” but “does not waive the government’s sovereign immunity.” Eagle-Picker Indus., Inc. v. United States, 901 F.2d 1530, 1532 (10th Cir.1990). Consequently, district court jurisdiction cannot be based on § 1331 unless some other statute waives sovereign immunity. See New Mexico v. Regan, 745 F.2d 1318, 1321 (10th Cir.1984). Sections 2201 and 2202 are unhelpful in this regard. See Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir.2002); McGrath v. Weinberger, 541 F.2d 249, 252 n. 4 (10th Cir.1976). Neighbors suggests the Administrative Procedures Act provides the necessary waiver of immunity allowing the district court to review this case. The Administrative Procedures Act’s waiver of sovereign immunity states: “A person suffering legal wrong because of agency action ... is entitled to judicial review thereof. An action ... seeking relief other than money damages ... shall not be dismissed ... on the ground that it is against the United States.” 5 U.S.C. § 702. The waiver is limited. It does not “confer[ ] authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” Id. The Secretary argues the Quiet Title Act forbids the relief Neighbors is seeking. Like the Administrative Procedures Act, the Quiet Title Act contains a limited waiver of sovereign immunity. It allows the United States to “be named as a party defendant in a civil action ... to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest in water rights.” 28" }, { "docid": "10141004", "title": "", "text": "Ltd. v. U.S. Postal Serv., 142 F.3d 208, 210 (4th Cir. 1998). “All waivers of sovereign immunity must be ‘strictly construed in favor of the sovereign.’ ” Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (ellipsis omitted) (quoting Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996)). “For that reason, it is the plaintiffs burden to show that an unequivocal waiver of sovereign immunity exists and that none of the statute’s waiver exceptions apply to [its] particular claim. If the plaintiff fails to meet this burden, then the claim must be dismissed.” Id. at 651 (internal citation omitted) (citing Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001); Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995)). In its Complaint, the State asserted that this court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361, 2201, 2202 and three provisions of the APA, 5 U.S.C. § 702, 704, and 706. (ECF No. 1 at 3-4.) “Section 1331 ‘is not a general waiver of sovereign immunity. It merely establishes a subject matter that is within the competence of federal courts to entertain.’ ” Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996). Section 1361, which grants district courts original jurisdiction in mandamus actions against federal agencies, officers, and employees, does not waive sovereign immunity. See Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (citing Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996)). Sections 2201 and 2202, which create declaratory judgment and other relief based on declaratory judgment as remedies available in actions otherwise within a district court’s jurisdiction, do not constitute independent bases for jurisdiction and do not waive sovereign immunity. See CGM, LLC v. BellSouth Telecomm., Inc., 664 F.3d 46, 55-56 (4th Cir. 2011); see also Gabriel v. Gen. Servs. Admin., 547 Fed.Appx. 829, 831 (9th Cir. 2013). Moreover, the State points to no waiver of sovereign immunity expressly made applicable to 50 U.S.C. § 2566, the statutes on which it bases its claims, and there does not" }, { "docid": "5038172", "title": "", "text": "seq., asserting that his action is “based essentially on an alleged erroneous ruling by a federal agency.” 641 F.2d at 1065. If the foregoing were all that plaintiff could rely upon to sustain jurisdiction against the assertion of sovereign immunity, it is clear that the complaint would have to be dismissed on that basis. First, it is well settled that the Declaratory Judgment Act, 28 U.S.C. § 2201, “does not provide an independent basis for federal jurisdiction but simply increases the remedies available to a litigant.” Estate of Watson v. Blumenthal, 586 F.2d 925, 928 (2d Cir. 1978), citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). It is equally well settled that the other jurisdictional statutes specified in the complaint, §§ 1331, 1361 and 1346, do not by themselves waive the sovereign’s immunity to suits arising under federal law, as this one purports to be. See Doe v. Civiletti, 635 F.2d 88, 93-95 (2d Cir. 1980). Furthermore, the waiver of sovereign immunity in the APA, 5 U.S.C. § 702, is no help to plaintiff here, because the APA itself is not an independent basis for jurisdiction, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1978). Thus, authority for plaintiff to maintain his suit against the sovereign must be sought elsewhere. The jurisdictional bar of sovereign immunity raised by defendant is, however, insufficient to require dismissal of this suit. In reorganizing the old cabinet-level Department of the Post Office into the present United States Postal Service, as “an independent establishment of the executive branch,” 39 U.S.C. § 201, Congress specifically provided that the Postal Service “shall have” the general power “to sue and be sued in its official name.” 39 U.S.C. § 401(1). Long before Congress reorganized the Postal Service, the Supreme Court consistently interpreted “sue and be sued” in statutes creating federal corporations, agencies and instrumentalities, as a general waiver of the sovereign’s immunity as to the entity, see, e.g., Keifer & Keifer v. R. F. C., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784" }, { "docid": "7034426", "title": "", "text": "that the United States has clearly and unequivocally waived sovereign immunity with respect to the action here presented. 1. Jurisdiction Under Circuit City’s Complaint Circuit City’s complaint is the logical place to begin the inquiry. The complaint invokes the Court’s jurisdiction pursuant to the following: (1) general federal-question jurisdiction under 28 U.S.C. § 1331; (2) federal jurisdiction over commerce and antitrust regulations under 28 U.S.C. § 1337; (3) the Declaratory Judgement Act, 28 U.S.C. § 2201; (4) Title VII, 42 U.S.C. §§ 2000e-5 and 2000e-6; (5) the American with Disabilities Act, 42 U.S.C. § 12117; (6) the Age Discrimination in Employment Act, 29 U.S.C. § 626; and (7) the Equal Pay Act, 29 U.S.C. § 206(e). It is well settled that 28 U.S.C. §§ 1331 and 1337 do not, in and of themselves, operate as a general waiver by the United States of its sovereign immunity. Randall v. United States, 95 F.3d 339, 345 (4th Cir.1996) (§ 1331); Food Town Stores, Inc. v. E.E.O.C., 708 F.2d 920, 922 (4th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984) (§ 1331); Hunter v. United Van Lines, 746 F.2d 635, 639 (9th Cir.1984) cert. denied, 474 U.S. 863, 106 S.Ct. 180, 88 L.Ed.2d 150 (1985); rehearing denied, 474 U.S. 1014, 106 S.Ct. 547, 88 L.Ed.2d 476 (1985) (“arising under” language in § 1337 interpreted in same way as under § 1331); B.F. Goodrich Co. v. Northwest Indust., 424 F.2d 1349, 1354 (3rd Cir.1970) (§ 1337). Nor does the Declaratory Judgement Act constitute a waiver of sovereign immunity or create a jurisdiction. Robishaw Engineering Inc. v. United States, 891 F.Supp. 1134, 1142 (E.D.Va. 1995); Ocean Breeze Festival Park, 853 F.Supp. at 917. Thus, 28 U.S.C. § 1331, § 1337 and § 2001 cannot provide a jurisdictional base upon which a court may entertain Circuit City’s declaratory action against the United States. The inquiry then turns to the employment discrimination statutes invoked in Circuit City’s complaint. And, as with the statutes already discussed, none of the employment discrimination statutes unequivocally and clearly provide for an action such as this one" }, { "docid": "8645314", "title": "", "text": "subject matter jurisdiction pursuant to Section 1331. B. The Declaratory Judgment Act Defendant correctly contends that the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, does not establish a separate and independent basis for subject matter jurisdiction. The Tenth Circuit has stated: It is settled that 28 U.S.C. § 2201 does not confer jurisdiction on a federal court where none otherwise exits. That statute was adopted by Congress to enlarge the range of remedies available in federal court, and does not extend subject matter jurisdiction to cases in which the court has no independent basis for jurisdiction. Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 822 (10th Cir.1981); see also Schulke v. United States, 544 F.2d 453, 455 (10th Cir.1976) (“One seeking relief under the [declaratory judgment] statute must establish a separate and independent basis for jurisdiction”). Additionally, the Declaratory Judgment Act does not operate to waive the United States’ sovereign immunity. See, e.g., Balistrier v. United States, 303 F.2d 617 (7th Cir.1962); Anderson v. United States, 229 F.2d 675 (5th Cir.1956). As with 28 U.S.C. § 1331, plaintiff must look to the statute giving rise to the cause of action for such a waiver. C. 28 U.S.C. § 1361 Section 1361, characterized as “Action to compel an officer of the United States to perform his duty,” provides: The district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agen cy thereof to perform a duty owed to the plaintiff. The Tenth Circuit has interpreted that statute as “not granting jurisdiction for the purpose of injunctive or declaratory judgment relief.” McQueary v. Laird, 449 F.2d 608, 611 (10th Cir.1971). The Court further stated, “In order to sustain jurisdiction under [Section 1361], it is necessary for the appellants here to allege and plead that the appellees failed or refused to perform a discretionary duty imposed by law.” Id. at 611-12. Such mandamus relief “is appropriate only when the person seeking such relief can show a duty owed to him by the government official to whom the" }, { "docid": "5038171", "title": "", "text": "he was aware of “coming on too strong” but thought he could control it. In challenging defendant’s actions, plaintiff asserts that defendant abused its discretion in not selecting him, and violated its own merit hiring and advancement policies by selecting others who ranked below him on the qualification rating form. To blunt the import of the fact that defendant informed him of the reasons for not selecting him, plaintiff further argues that there is a genuine issue of material fact as to the actual reason he did not receive favorable action. Against this background, we turn to a consideration of the government’s contentions challenging the Court’s power to entertain plaintiff’s complaint, which alleges that federal jurisdiction exists by virtue of 28 U.S.C. §§ 1331, 1346, 1361, 2201. In addition, the passage from Spencer, White & Prentis, Inc. v. United States, 641 F.2d 1061, 1065 (2d Cir. 1981), included in plaintiff’s brief, fairly indicates that he also is relying upon general principles of administrative review and the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., asserting that his action is “based essentially on an alleged erroneous ruling by a federal agency.” 641 F.2d at 1065. If the foregoing were all that plaintiff could rely upon to sustain jurisdiction against the assertion of sovereign immunity, it is clear that the complaint would have to be dismissed on that basis. First, it is well settled that the Declaratory Judgment Act, 28 U.S.C. § 2201, “does not provide an independent basis for federal jurisdiction but simply increases the remedies available to a litigant.” Estate of Watson v. Blumenthal, 586 F.2d 925, 928 (2d Cir. 1978), citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). It is equally well settled that the other jurisdictional statutes specified in the complaint, §§ 1331, 1361 and 1346, do not by themselves waive the sovereign’s immunity to suits arising under federal law, as this one purports to be. See Doe v. Civiletti, 635 F.2d 88, 93-95 (2d Cir. 1980). Furthermore, the waiver of sovereign immunity in the APA," }, { "docid": "785331", "title": "", "text": "not a statute providing for waiver of sovereign immunity nor can any such waiver be inferred from its language. With respect to Sections 1331 and 1361 of Title 28 the case of Commonwealth of Kentucky v. Ruckelshaus, 362 F.Supp. 360, 367-368 (W.D.Ky. 1973) affirmed 497 F.2d 1172 (6th Cir. 1974) has the following to say: 28 U.S.C. Section 1331 has never been construed as a waiver of the sovereign immunity of the United States from suit. E. g., Anderson v. United States, 229 F.2d 675 (C.A.5, 1956); Cotter Corporation v. Seaborg, 370 F.2d 686 (C.A.10, 1966). Moreover, the Declaratory Judgment Act, 28 U.S.C. Sections 2201, 2202, is procedural in nature and does not enlarge the jurisdiction of the district courts or waive the sovereign immunity of the United States. E. g., White v. Administrator of General Services Admin., 343 F.2d 444 (C.A.9, 1965); Donnely v. Mavar Shrimp & Oyster Co., 190 F.2d 409 (C.A.5, 1951). As has been decided on many occasions, 28 U.S.C. Section 1361 did not waive sovereign immunity since it was only intended to ease the burden of proceeding against officials formerly suable only in the District of Columbia. E. g., Jarrett v. Resor, 426 F.2d 213 (C.A.9, 1970); Carter v. Seamans, 411 F.2d 767 (C.A.5, 1969). Although the plaintiff also invokes the Fifth, Ninth and Fourteenth Amendments to the Constitution of the United States, it is settled beyond doubt that constitutional provisions have no effect upon the sovereign immunity from suit. E. g., Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934). Section 1343 of Title 28, providing for original jurisdiction in the district courts for certain civil rights violations, has been held not to constitute a waiver of sovereign immunity. Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972). It is clear that the United States has not consented to be sued and has not waived its sovereign immunity under any of the statutory provisions pursuant to which the instant action has been brought. This Court has no jurisdiction of this action against the United States Secretary of Labor. The" }, { "docid": "3321355", "title": "", "text": "toward the Federal Defendants and Defendant Krieger. Cf. Olson v. Hart, 965 F.2d 940, 943 (10th Cir.1992) (construing pro se petition for mandamus as an action for injunctive or declaratory relief). Plaintiff, as the party invoMng federal court jurisdiction, bears the burden of showing that such jurisdiction exists. See, e.g., Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). More specifically, in the context of sovereign immunity, Plaintiff must “point to a specific waiver of immunity in order to establish jurisdiction.” Normandy Apartments, 554 F.3d at 1295. As noted in the Magistrate Judge’s recommendation, neither the jurisdictional statutes cited by Plaintiff — 28 U.S.C. §§ 1331 and 1343 — nor the other statutes and constitutional amendments referred to in Plaintiffs complaint — 42 U.S.C. § 1983, 28 U.S.C. §§ 2201-02 and 1651, and the First, Fifth, and Fourteenth Amendments to the Constitution — waive sovereign immunity. (Recommendation at 9-11.) Plaintiffs reliance on mandamus relief may be an attempt to invoke the federal Mandamus Act, 28 U.S.C. § 1361, as a basis for jurisdiction. Id. (giving federal district courts “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff’). Generally, “[s]overeign immunity ... does not bar a district court from exercising subject-matter jurisdiction granted under § 1361.” Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1245 (10th Cir.2007). However, in Trackwell, the Tenth Circuit held that § 1361 does not confer jurisdiction in the district court over a mandamus action directed toward the United States Supreme Court. Id. at 1243. Although the Track-well Court only specifically considered the statute’s application to the Supreme Court, its language and reasoning is equally applicable to all federal courts and judges. See, e.g., id. at 1242 (holding that § 1361 “does not apply to courts”); 1245 (quoting Hubbard v. United States, 514 U.S. 695, 699, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995) for the proposition that “[i]n ordinary parlance, federal courts are not described as ‘departments’ or ‘agencies’ of the" }, { "docid": "10141005", "title": "", "text": "sovereign immunity. It merely establishes a subject matter that is within the competence of federal courts to entertain.’ ” Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996). Section 1361, which grants district courts original jurisdiction in mandamus actions against federal agencies, officers, and employees, does not waive sovereign immunity. See Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (citing Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996)). Sections 2201 and 2202, which create declaratory judgment and other relief based on declaratory judgment as remedies available in actions otherwise within a district court’s jurisdiction, do not constitute independent bases for jurisdiction and do not waive sovereign immunity. See CGM, LLC v. BellSouth Telecomm., Inc., 664 F.3d 46, 55-56 (4th Cir. 2011); see also Gabriel v. Gen. Servs. Admin., 547 Fed.Appx. 829, 831 (9th Cir. 2013). Moreover, the State points to no waiver of sovereign immunity expressly made applicable to 50 U.S.C. § 2566, the statutes on which it bases its claims, and there does not appear to be any. Accordingly, the State’s only recourse is to prove that the general waiv ers of sovereign immunity in the APA or the Tucker Act apply. See Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Hous. & Urban Dev., 480 F.3d 1116, 1121-22 (Fed. Cir. 2007) (“If the suit is a civil action, other than in tort, there are two general statutes that waive sovereign immunity. One is the Tucker Act.... [and t]he other ... is the Administrative Procedure Act....”). In its response to the motion to dismiss, the State relies only on the APA for its assertion that sovereign immunity has been waived. (See ECF No. 27 at 22 n. 15, 24.) A waiver of sovereign immunity authorizing jurisdiction in a district court is available when a party satisfies the requirements of both § 702 and § 704 of the APA. Bowen v. Massachusetts, 487 U.S. 879, 891-93, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); see Consol. Edison of N.Y. v. U.S. Dep’t of Energy, 247 F.3d 1378, 1382 (Fed. Cir. 2001)" }, { "docid": "10141003", "title": "", "text": "burden of establishing subject matter jurisdiction rests with the plaintiff.” Demetres v. E.W. Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015). Assertions of governmental immunity are properly addressed under Rule 12(b)(1). Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 205 (4th Cir. 2002). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Further, suits, such as this one, against a federal officer in his official capacity “is in fact against the sovereign if the [relief sought] would operate against the latter.” Hawaii v. Gordon, 373 U.S. 57, 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963) (per curiam); see id. (explaining that official-capacity suit is against the sovereign if, for example, “the [releif] requested would require the [officerj’s official affirmative action, affect the public administration of government agencies and cause ... the disposition of property admittedly belonging to the United States.”) “Sovereign immunity deprives a court of jurisdiction to hear a case.” Global Mail Ltd. v. U.S. Postal Serv., 142 F.3d 208, 210 (4th Cir. 1998). “All waivers of sovereign immunity must be ‘strictly construed in favor of the sovereign.’ ” Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (ellipsis omitted) (quoting Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996)). “For that reason, it is the plaintiffs burden to show that an unequivocal waiver of sovereign immunity exists and that none of the statute’s waiver exceptions apply to [its] particular claim. If the plaintiff fails to meet this burden, then the claim must be dismissed.” Id. at 651 (internal citation omitted) (citing Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001); Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995)). In its Complaint, the State asserted that this court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361, 2201, 2202 and three provisions of the APA, 5 U.S.C. § 702, 704, and 706. (ECF No. 1 at 3-4.) “Section 1331 ‘is not a general waiver of" }, { "docid": "12237518", "title": "", "text": "against the FDIC are not properly before us, and because FIRREA does not waive sovereign immunity for the thrift’s claims against the OTS, FIRREA cannot serve as a waiver of sovereign immunity or basis for jurisdiction here. We turn, therefore, to the second statute Transohio invokes, the APA. B. The Administrative Procedure Act In 1976, Congress amended the APA to waive sovereign immunity for suits seeking relief other than money damages from federal agencies or officials: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States. 5 U.S.C. § 702. Under settled law, for claims permitted under the APA’s waiver of sovereign immunity, jurisdiction is proper in the federal district court under the federal-question statute, 28 U.S.C. § 1331, the declaratory-judgment statute, id. § 2201-2202, or the mandamus statute, id. § 1361. See Sharp v. Weinberger, 798 F.2d 1521, 1523 (D.C.Cir.1986). Whether § 702 of the APA justifies district court jurisdiction over Transohio’s case depends on whether the thrift’s claims fall under any of the three limitations on the APA’s waiver of sovereign immunity. The APA excludes from its waiver of sovereign immunity (1) claims for money damages, (2) claims for which an adequate remedy is available elsewhere, and (3) claims seeking relief expressly or impliedly forbidden by another statute. We find, to summarize our conclusions, that Transohio’s claims survive the first two limitations, but that only the thrift’s statutory and due process claims survive the third. We consider the takings claim separately. 1. “Money Damages.” The first limitation on the APA’s waiver of sovereign immunity appears in the portion of § 702 quoted" }, { "docid": "4349375", "title": "", "text": "claims. The United States is immune from suit except to the extent that it consents to be sued. In re Talbot, 124 F.3d 1201, 1205 (10th Cir.1997). “[Neither the government’s attorneys nor any other officer of the United States may waive the United States’ sovereign immunity.” Id. Consent to suit is a prerequisite to subject matter jurisdiction. Id. Plaintiff has the burden to establish an explicit waiver of sovereign immunity. Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir.1992). In its second amended complaint, plaintiff asserts that the court has jurisdiction over each of plaintiffs eight claims based on the federal question statute, 28 U.S.C. § 1331, the mandamus statute, 28 U.S.C. § 1361, or the declaratory judgment statute, 28 U.S.C. § 2201. None of these statutes, however, constitute a waiver of sovereign immunity. Id. at 1203 (§§ 1331, 1361); Thomas v. Pierce, 662 F.Supp. 519, 524 (D.Kan.1987) (§§ 1331, 1361, 2201); see also Progressive Consumers Federal Credit Union v. U.S., 79 F.3d 1228, 1230 (1st Cir.1996) (§ 2201). Plaintiff also cites the following underlying statutes in its complaint: (1) the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. §§ 479a & 479a-1; (2) the Indian Gaming Regulation Act, 25 U.S.C. § 2701 et seq.; (3) the Federal Property and Administrative Services Act, 40 U.S.C. § 471 et seq.; (4) the National Environmental Policy Act, 42 U.S.C. § 4331 et seq.; and (5) 25 U.S.C. §§ 175 & 178. None of these statutes provide an unequivocal express waiver of sovereign immunity which would allow plaintiffs claims to go forward. See Richman, 124 F.3d at 1206 (waiver must be unequivocally expressed in the statutory text); United States v. Murdock Mach. and Eng’g Co. of Utah, 81 F.3d 922, 930 n. 8 (10th Cir.1996) (same). In its supplemental memorandum in support of its motion for preliminary injunction, plaintiff asserts two additional bases for a waiver of sovereign immunity: (1) Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), and (2) the Administrative Procedure Act, 5 U.S.C. § 702. The Larson" }, { "docid": "11550514", "title": "", "text": "in these cases are for back pay and allowances which in each instance exceeds $10,000 in amount, we conclude that they are beyond the Tucker Act jurisdiction of this court and lie within the exclusive jurisdiction of the Court of Claims. V We move our attention to plaintiffs’ contention that alternative bases for district court jurisdiction exist in the Administrative Procedure Act [APA], 5 U.S.C. § 701 et seq., general federal question jurisdiction, 28 U.S.C. § 1331, the Declaratory Judgments Act, 28 U.S.C. § 2201-02, the Privacy Act, 5 U.S.C. § 552a, and the Mandamus Act, 28 U.S.C. § 1361. We conclude that none of those alternative jurisdictional provisions will permit maintenance of the present litigation in the district court. During the period in which these cases have been under submission, the Congress enacted Public Law 94-574, 90 Stat. 2721 (1976), [the Amendments] which made several significant changes in the APA and section 1331 of Title 28. The Amendments revised judicial review provisions of the APA, 5 U.S.C. §§ 702, 703, partially waiving the doctrine of sovereign immunity in suits against the United States, its agencies, officers and employees “seeking relief other than money damages”. Section 1 of the Amendments also includes the following limitation: Nothing herein ... (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought. Since we have earlier held that the United States has expressly consented to suits of the present nature in the Court of Claims, in which exclusive jurisdiction is vested under 28 U.S.C. § 1491, that limited waiver of sovereign immunity is, by its terms, inapplicable. Section 2 of the Amendments eliminated the amount in controversy requirement for federal question actions against the United States, its officers, or employees. Even after amendment, however, it cannot be said that section 1331 constitutes “a waiver of the sovereign immunity doctrine under which the United States, as a sovereign, is immune from suit save as it consents to be sued,” in actions essentially seeking money judgments against the United States. Cf. Committee" }, { "docid": "785330", "title": "", "text": "United States has not waived its sovereign immunity. What has been said previously herein is dispositive of the “exhaustion” issue. The Amended Complaint herein, at page 2, states that “[t]he jurisdiction of the Court is invoked pursuant to 42 U.S.C. Section 2000e-5(f), 28 U.S.C. Sections 1331, 1337, 1343 and 1361; also, 42 [28] U.S.C. Sections 2201 and 2202.” Sections 2201 and 2202 provide for the remedy of a declaratory judgment. There is no way to construe them as a waiver of immunity. These sections have been construed on numerous occasions as being procedural and as not supplying an independent ground of jurisdiction. Rolls-Royce Limited, Derby, England v. United States, 364 F.2d 415, 176 Ct.Cl. 694 (1966); Lear Siegler, Inc. v. Adkins, 330 F.2d 595 (9th Cir. 1964); Skelly Oil Co. v. Phillips Petroleum Company, 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Section 1337 of Title 28 provides for original jurisdiction of civil actions arising under acts of Congress “regulating commerce or protecting trade and commerce against restraints and monopolies.” This is obviously not a statute providing for waiver of sovereign immunity nor can any such waiver be inferred from its language. With respect to Sections 1331 and 1361 of Title 28 the case of Commonwealth of Kentucky v. Ruckelshaus, 362 F.Supp. 360, 367-368 (W.D.Ky. 1973) affirmed 497 F.2d 1172 (6th Cir. 1974) has the following to say: 28 U.S.C. Section 1331 has never been construed as a waiver of the sovereign immunity of the United States from suit. E. g., Anderson v. United States, 229 F.2d 675 (C.A.5, 1956); Cotter Corporation v. Seaborg, 370 F.2d 686 (C.A.10, 1966). Moreover, the Declaratory Judgment Act, 28 U.S.C. Sections 2201, 2202, is procedural in nature and does not enlarge the jurisdiction of the district courts or waive the sovereign immunity of the United States. E. g., White v. Administrator of General Services Admin., 343 F.2d 444 (C.A.9, 1965); Donnely v. Mavar Shrimp & Oyster Co., 190 F.2d 409 (C.A.5, 1951). As has been decided on many occasions, 28 U.S.C. Section 1361 did not waive sovereign immunity since it was only" }, { "docid": "23373358", "title": "", "text": "of Prisons, 413 F.3d 1225, 1234 (10th Cir.2005) (mandamus remedy is applied “to require a public official to perform a duty imposed upon him in his official capacity”). B. Jurisdiction In district court Mr. Trackwell invoked subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1343, 1346, and 1361. In granting the motion to dismiss, the court reasoned that it lacked subject-matter jurisdiction under §§ 1331 and 1343(a)(4) because neither statute waives the United States’ sovereign immunity, see Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 960-61 (10th Cir.2004) (§ 1331); Salazar v. Heckler, 787 F.2d 527, 528-29 (10th Cir.1986) (§ 1343(a)(4)), and Mr. Trackwell had not identified any other statute waiving immunity. In particular, the court determined that Mr. Trackwell could not assert the waiver of sovereign immunity for actions against “an agency or an officer or employee thereof’ under the Administrative Procedure Act (APA), 5 U.S.C. § 702, because the APA’s definition of agency explicitly excludes “the courts of the United States,” 5 U.S.C. § 701(b)(1)(B). See Dotson v. Griesa, 398 F.3d 156, 177 n. 15 (2d Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 2859, 165 L.Ed.2d 894 (2006). The court further concluded that a provision of the Tucker Act, 28 U.S.C. § 1346(a)(2), which authorizes suits for money damages against the United States, does not waive sovereign immunity for Mr. Traekwell’s equitable claims. See Richardson v. Morris, 409 U.S. 464, 465, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973) (per curiam). We agree with the court’s reasoning and affirm these rulings. Sovereign immunity extends to both the Supreme Court, see Gregory v. United States/U.S. Bankr.Ct., 942 F.2d 1498, 1499-1500 (10th Cir.1991) (affirming dismissal of complaint for damages against various federal courts on ground of sovereign immunity), and the Clerk in his official capacity, see Kyler v. Everson, 442 F.3d 1251, 1252-53 (10th Cir.2006) (sovereign immunity extends to official-capacity claims against agents or officers of the United States). We disagree, however, with the district court’s treatment of 28 U.S.C. § 1361, which provides federal district courts with “original jurisdiction of any action in the nature of mandamus to" }, { "docid": "4349374", "title": "", "text": "early transfer of property prior to environmental remediation, pursuant to 42 U.S.C. § 9620(h)(3)(C). The early transfer of Sunflower will allow for the immediate development of the property, tax revenue to the state and local governments, and state regulation of the property. Hastings testified that although a tract of 9000 acres — the size of Sunflower — is difficult to market and sell, defendants have found an interested purchaser through the state of Kansas. The proposed transfer of the property is planned for August or September 1999. If the disposal is enjoined, defendants would incur the cost of the process again, and lose the current buyer. Portions of the property will ultimately be conveyed to the University of Kansas, to Kansas State University, and to the City of DeSoto, Kansas for public health purposes. II. Motion to Dismiss Defendants requested that the court consider the extensive preliminary injunction pleadings as a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). A. Sovereign Immunity Defendants’ sovereign immunity limits the court’s jurisdiction over plaintiffs claims. The United States is immune from suit except to the extent that it consents to be sued. In re Talbot, 124 F.3d 1201, 1205 (10th Cir.1997). “[Neither the government’s attorneys nor any other officer of the United States may waive the United States’ sovereign immunity.” Id. Consent to suit is a prerequisite to subject matter jurisdiction. Id. Plaintiff has the burden to establish an explicit waiver of sovereign immunity. Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir.1992). In its second amended complaint, plaintiff asserts that the court has jurisdiction over each of plaintiffs eight claims based on the federal question statute, 28 U.S.C. § 1331, the mandamus statute, 28 U.S.C. § 1361, or the declaratory judgment statute, 28 U.S.C. § 2201. None of these statutes, however, constitute a waiver of sovereign immunity. Id. at 1203 (§§ 1331, 1361); Thomas v. Pierce, 662 F.Supp. 519, 524 (D.Kan.1987) (§§ 1331, 1361, 2201); see also Progressive Consumers Federal Credit Union v. U.S., 79 F.3d 1228, 1230 (1st Cir.1996) (§ 2201). Plaintiff also cites the following" }, { "docid": "18042982", "title": "", "text": "the rights and other legal relations of any interested party”). Defendants contend that neither of these statutes provides a cause of action nor an explicit waiver of sovereign immunity necessary for plaintiffs’ challenge to the President’s authority to issue the proclamation implementing the Agreement. In the light of the Supreme Court’s unequivocal holding that “the President is not an agency within the meaning of the [APA],” Franklin, 505 U.S. at 796, 112 S.Ct. at 2773, defendants argue that plaintiffs cannot invoke section 702’s cause of action or waiver of sovereign immunity. ■ Defendants claim that although 28 U.S.C. § 1581(i)(2) provides for jurisdiction over plaintiffs’ claims, it does not provide a cause of action, nor does it contain an express waiver of sovereign immunity allowing a party to obtain relief against a federal official. Furthermore, defendants assert that 28 U.S.C. § 2631(i) neither creates a right of action nor waives the sovereign immunity of the United States, but merely permits a plaintiff to commence an action in this court under 28 U.S.C. § 1581(i), if it has been aggrieved by agency action within the meaning of the APA. Finally, defendants claim that the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, provide no basis for jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950), much less a cause of action or waiver of sovereign immunity. The court notes, however, that while Congress adopted 5 U.S.C. § 702 as part of the APA, the waiver of sovereign immunity in § 702 applies to any proceeding in which a party seeks declaratory or injunctive relief regarding any federal official’s ultra vires conduct under color of legal authority. See, e.g., Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C.Cir.1996) (“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.”); Clark v. Library of Congress, 750 F.2d 89, 102 (D.C.Cir.1984). Moreover, where [an executive] officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing" }, { "docid": "8645312", "title": "", "text": "Justice for collection. The statutory goal of quick remedial action in cleaning up hazardous waste sites would not be frustrated by judicial review of the agency action here. The parties were in the process of settlement negotiations immediately before this action was filed. Apparently, plaintiffs considered the settlement discussions to be fruitless, resulting in the filing. The narrow issue before the Court, then, is whether plaintiffs can obtain judicial review of final EPA action for a declaration of liability or non-liability under CERCLA prior to the government’s bringing a cost-recovery action. Plaintiffs assert the following bases in attempting to invoke this Court’s subject matter jurisdiction: 28 U.S.C. §§ 1331, 1361; Section 10 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702; Section 113(b) of CERCLA, 42 U.S.C. § 9613(b); and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. The government contends that none of those statutes provides a basis for subject matter jurisdiction or a waiver of the government’s sovereign immunity. The Court will address plaintiffs’ claims seriatim. A. 28 U.S.C. § 1331 Plaintiffs seek to invoke this Court’s jurisdiction under the general federal question statute. See 28 U.S.C. § 1331. Section 1331 grants federal courts original subject matter jurisdiction over civil actions which arise under “the Constitution, laws, or treaties of the United States.” However, Section 1331 does not, of itself, waive the government’s sovereign immunity from suit. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied sub. nom., Holloman v. Clark, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984); Rodin v. United States, 699 F.2d 681, 684-85 (4th Cir.1983); Garcia v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982); De Vilbiss v. SBA, 661 F.2d 716, 718 (8th Cir.1981). The plaintiff must look to the statute giving rise to the cause of action for such a waiver. Assuming such a waiver is found, for example under the Declaratory Judgment Act, under CERCLA or under the APA, and no contrary intent were found in the waiving statute, this court then would have" } ]

[ { "docid": "2336819", "title": "", "text": "PER CURIAM: I. Plaintiff (Sigmond) timely appeals from the district court’s grant of summary judgment for the defendants. Sigmond brought this action pursuant to section 1964(c) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (1982). Section 1964(c) establishes a private cause of action for treble damages for anyone “injured in his business or property by reason of a [defendant’s] violation” of RICO. Sigmond, a chiropractor, contends that defendants, in league with a chiropractic peer review board, violated RICO section 1962(c) and that their violations injured him in his business and property interests. A plaintiff in a RICO section 1962(c) case must present proof of four RICO elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (footnote omitted). The district court held that Sigmond failed to present sufficient evidence of these elements to withstand the defendants’ motion for summary judgment. Sigmond v. Brown, 645 F.Supp. 243 (C.D.Cal.1986). II. Summary judgment is appropriate if the nonmoving party who will bear the burden of proof at trial on an element essential to his claim fails to present sufficient evidence to establish a genuine issue of fact with respect to that element. California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.). Moreover, Sigmond as the non-moving party, must present “more per suasive evidence than would otherwise be necessary” if his claims are “implausible.” Id. (emphasis in original). III. On appeal, Sigmond contends that he presented to the district court sufficient evidence of the two or more “predicate acts” required for a showing of a “pattern of racketeering activity” to survive defendants’ motion for summary judgment. See 18 U.S.C. §§ 1961(5); see generally Sun Savings & Loan Assoc, v. Dierdorff, 825 F.2d 187, 191-94 & nn. 4-5 (9th Cir.1987); Franciscan Ceramics, 818 F.2d at 1469 & n. 1. We disagree. Sigmond asserts that he presented evidence that defendants perpetrated several predicate acts of mail fraud, in violation of 18 U.S.C. §" } ]

[ { "docid": "17310045", "title": "", "text": "liability for participation in a conspiracy in violation of section 1962(d). A. Section 1962(c) Liability under section 1962(c) requires (1) the conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). Defendants attack each element of plaintiffs’ claim. 1. Enterprise An enterprise is “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). Thus an enterprise may be a legal entity or an informal ongoing organization whose member associates function as a continuing unit. See United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981). It must exist separate and apart from the pattern of activity in which it engages. Id.; Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1396 (9th Cir.1986). However, the same proof may be used to establish both the element of an enterprise and the element of a pattern of racketeering activity. United States v. Turkette, supra, 452 U.S. at 583, 101 S.Ct. at 2528; United States v. Bagnariol, 665 F.2d 877, 890, cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). In their claim under section 1962(c) plaintiffs have alleged alternative enterprises: the Rexplore affiliated partnerships, or an association in fact of defendants Sentra, Rexplore, Seyer, and Levine. The alleged enterprise of an association in fact is inadequate on the face of the Complaint. The only association between the defendants alleged in the Complaint is their association for the purpose of perpetrating the mail, wire and securities fraud, that is the racketeering activity of which plaintiffs complain. Thus the enterprise of this associa tion in fact is no different from the RICO defendants and has no existence separate from the racketeering activity in which it engages. See Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984). In contrast, the Complaint, read as a whole, does allege that the Rexplore-affiliated limited partnerships have an existence separate from the" }, { "docid": "9735010", "title": "", "text": "Turkette. The Eighth Circuit has held that a RICO enterprise must have “an ascertainable structure [sic] distinct from that inherent in the conduct of a pattern of racketeering activity,” United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.1982), cert. denied, 459 U.S. 1040 [103 S.Ct. 456, 74 L.Ed.2d 608] (1982), and the Third and Fourth Circuits also have endorsed the separate existence requirement. See United States v. Riccobene, 709 F.2d 214 (3d Cir.), cert. denied, 464 U.S. 849 [104 S.Ct. 157, 78 L.Ed.2d 145] (1983); United States v. Tillett, 763 F.2d 628 (4th Cir.1985). On the other hand, the Second Circuit has upheld the application of RICO “to situations where the enterprise was, in effect, no more than the sum of the predicate racketeering acts.” United States v. Bagaric, 706 F.2d 42, 55 (2d Cir.), cert. denied, 464 U.S. 840 [104 S.Ct. 134, 78 L.Ed.2d 128] (1983). The Eleventh Circuit has rejected the Eighth Circuit’s position as well. See United States v. Weinstein, 762 F.2d 1522 (11th Cir.1985) [, cert. denied, 475 U.S. 1110, 106 S.Ct. 1519, 89 L.Ed.2d 917 (1986)]. Allington, 619 F.Supp. at 479. See generally Weissman, Enterprise: Relation to “Pattern” of Racketeering, in RICO LAW DEVELOPMENTS: 1986, at 141-43 (RICO Law Reporter 1987). We need not decide which interpretation of Turkette is more appropriate, however, because the plaintiffs have sufficiently alleged the existence of two separate enterprises under either view. Both of the alleged enterprises certainly fulfill the lenient requirements of the Second and Eleventh Circuits. In addition, even under the more stringent test of the Eighth Circuit, the plaintiffs’ allegation that the corporate entity Sunbelt was an enterprise fulfills the requirement that the enterprise have an ascertainable structure apart from the racketeering activity. Cf. Bennett v. Berg, 685 F.2d 1053, 1060-61 (8th Cir.1982) (“Legal entities are garden-variety ‘enterprises’ which generally pose no problem of separateness from the predicate acts.”), adopted upon reh’g en banc, 710 F.2d 1361 (8th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Moreover, the plaintiffs have alleged that the defendants illegally conducted the affairs of the" }, { "docid": "22965262", "title": "", "text": "of activity in which it engages.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. In contrast, two circuits have interpreted Turkette to permit the organization constituting the enterprise to be no more than the sum of the predicate racketeering acts. See United States v. Bagaric, 706 F.2d 42, 55 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Cagnina, 697 F.2d 915, 921 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983). The two circuits that adhere to this minority view of the enterprise element also relied, in part, upon language in the Turkette decision to justify their interpretation. Specifically, in Turkette, the Supreme Court stated that the proof used to establish the existence of an enterprise “may in particular cases coalesce” with the proof used to establish the pattern of racketeering-activity. Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. The Ninth Circuit has not yet resolved how much structure RICO’s enterprise element requires. See United States v. Blinder, 10 F.3d 1468, 1474 (9th Cir.1993) (“Because we find that our earlier interpretation of the more stringent ‘separate existence’ test has been met, we again decline the invitation” to decide how much structure RICO’s enterprise element requires.); United States v. Feldman, 853 F.2d 648, 660 (9th Cir.1988) (as amended) (“Because we believe that the enterprise alleged here meets-the more stringent standard, we need not decide the issue in this case.”), cert. denied, 489 U.S. 1030, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989); United States v. Kirk, 844 F.2d 660, 664 (9th Cir.) (“[UJnder either test, the existence of a corporation fulfills the requirements of an ascertainable structure apart from the predicate racketeering activity.”), cert. denied, 488 U.S. 890, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988); United Energy Owners Comm., Inc. v. United States Energy Mgmt. Sys., Inc., 837 F.2d 356, 363 (9th Cir.1988) (as amended) (“We need not decide which interpretation of Turkette is more appropriate, however, because the plaintiffs have sufficiently alleged the existence of two separate enterprises under either view.”). See also United States" }, { "docid": "22965261", "title": "", "text": "F.2d 438, 441 (5th Cir.) (per curiam), cert. denied, 483 U.S. 1032, 107 S.Ct. 3276, 97 L.Ed.2d 780 (1987); Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir.1995) (citing United States v. Neapolitan, 791 F.2d 489, 499-500 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986)); United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982); United States v. Sanders, 928 F.2d 940, 944 (10th Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 142, 116 L.Ed.2d 109 (1991). The six circuits that utilize this majority interpretation of the enterprise element have expressed concern that an overly broad construction of the term “enterprise” would render that element of the offense interchangeable with the “pattern of racketeering” element. These circuits relied, in part, on language in the Turkette decision to justify their interpretation. In Turkette, the Court stated that “[t]he ‘enterprise’ is not the ‘pattern of racketeering activity’; it is an entity separate and apart from the pattern of activity in which it engages.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. In contrast, two circuits have interpreted Turkette to permit the organization constituting the enterprise to be no more than the sum of the predicate racketeering acts. See United States v. Bagaric, 706 F.2d 42, 55 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Cagnina, 697 F.2d 915, 921 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983). The two circuits that adhere to this minority view of the enterprise element also relied, in part, upon language in the Turkette decision to justify their interpretation. Specifically, in Turkette, the Supreme Court stated that the proof used to establish the existence of an enterprise “may in particular cases coalesce” with the proof used to establish the pattern of racketeering-activity. Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. The Ninth Circuit has not yet resolved how much structure RICO’s enterprise element requires. See United States v. Blinder, 10" }, { "docid": "9735019", "title": "", "text": "unlawful for any person to conspire to violate section 1962(a), (b), or (c). . Section 1961(1) defines \"racketeering activity\" as any of certain \"chargeable” (under specified state criminal laws) or “indictable” (under specified federal criminal provisions) acts. The definition includes the \"predicate acts” alleged in the plaintiffs’ complaint: mail fraud (under 18 U.S.C. § 1341) and wire fraud (under 18 U.S.C. § 1343). See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 481-82 & n. 3, 105 S.Ct. 3275, 3277-78 & n. 3, 87 L.Ed.2d 346 (1985). . Section 1961(5) defines a “pattern of racketeering activity” as requiring “at least two [predicate] acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” . For a general discussion of the RICO pleading requirements, including the specificity required in allegations of fraud, see Schreiber, 806 F.2d at 1396-1401; see also Sigmond v. Brown, 828 F.2d 8, 9 (9th Cir.1987) (mail fraud requires proof of loss of money or tangible property rights) (citing McNally v. United States, — U.S. -, 107 S.Ct. 2875, 2881-82, 97 L.Ed.2d 292 (1987)). For a complete discussion of RICO in the corporate context, see 1 K. Brickey, Corporate Criminal Liability §§ 7:01-7:30 (1984 & Supp.1987). . Section 1961(4) defines a RICO “enterprise” as follows: \"enterprise\" includes any individual, partnership, corporation, association, or other .legal entity, and any union or group of individuals associated in fact although not a legal entity. . See United States v. DeRosa, 670 F.2d 889, 895-96 (9th Cir.), cert. denied, 459 U.S. 993, 103 S.Ct. 353, 74 L.Ed.2d 391 (1982); United States v. Bagnariol, 665 F.2d 877, 890-91 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). See generally United States v. Qaoud, 777 F.2d 1105, 1115-16 (6th Cir.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 899 (1986) (collecting cases) (\"Although ‘enterprise’ and ‘pattern of racketeering activity are separate elements, they may be proved by the same evidence.”). . The Allington" }, { "docid": "22965263", "title": "", "text": "F.3d 1468, 1474 (9th Cir.1993) (“Because we find that our earlier interpretation of the more stringent ‘separate existence’ test has been met, we again decline the invitation” to decide how much structure RICO’s enterprise element requires.); United States v. Feldman, 853 F.2d 648, 660 (9th Cir.1988) (as amended) (“Because we believe that the enterprise alleged here meets-the more stringent standard, we need not decide the issue in this case.”), cert. denied, 489 U.S. 1030, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989); United States v. Kirk, 844 F.2d 660, 664 (9th Cir.) (“[UJnder either test, the existence of a corporation fulfills the requirements of an ascertainable structure apart from the predicate racketeering activity.”), cert. denied, 488 U.S. 890, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988); United Energy Owners Comm., Inc. v. United States Energy Mgmt. Sys., Inc., 837 F.2d 356, 363 (9th Cir.1988) (as amended) (“We need not decide which interpretation of Turkette is more appropriate, however, because the plaintiffs have sufficiently alleged the existence of two separate enterprises under either view.”). See also United States v. DeRosa, 670 F.2d 889, 896 (9th Cir.1982) (enterprise established by compelling evidence of organization), cert. denied, 459 U.S. 993, 103 S.Ct. 353, 74 L.Ed.2d 391 (1982); United States v. Bagnariol, 665 F.2d 877, 891 (9th Cir.1981) (per curiam) (enterprise established by compelling evidence of agreement to establish organization), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). District courts in the Ninth Circuit, however, have been fairly consistent in applying the majority interpretation to determine whether a RICO enterprise existed. See In re Rexplore, Inc. Sec. Litig., 671 F.Supp. 679, 689 (N.D.Cal.1987); Sigmond v. Brown, 645 F.Supp. 243, 246 (C.D.Cal.1986), aff'd on other grounds, 828 F.2d 8 (9th Cir.1987); In re National Mortgage Equity Corp. Mortgage Pool Cert. Sec. Litig., 636 F.Supp. 1138, 1160-61 (C.D.Cal.1986); Medallion TV Enters., Inc. v. SelecTV of Cal., Inc., 627 F.Supp. 1290, 1294 (C.D.Cal.1986), aff'd on other grounds, 833 F.2d 1360 (9th Cir.1987), cert. denied, 492 U.S. 917, 109 S.Ct. 3241, 106 L.Ed.2d 588 (1989); Allington v. Carpenter, 619 F.Supp. 474 (C.D.Cal.1985) (Rymer, J.). But see" }, { "docid": "9371482", "title": "", "text": "856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983); United States v. Bagnariol, 665 F.2d 877, 890-91 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Also see United States v. Griffin, 660 F.2d 996, 1001 (4th Cir.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 313 (1982) and United States v. Diecidue, 603 F.2d 535, 545 (5th Cir.1979), cert. denied, 445 U.S. 946,100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). Although Griffin and Diecidue are criminal cases, this does not lessen the applicability of these cases to an analysis of disputes relating to civil RICO because the statutory language at issue is the same. See e.g. Eaby v. Richmond, 561 F.Supp. 131 (E.D.Pa.1983). Qaoud’s interpretation is supported by the plain language of the RICO statute which refers to “any individual ... association ... and any ... group of individuals associated in fact ...” (emphasis provided). The use of “any” means that the RICO statute should not be construed to say “only” those groups, whose existence is distinct from the pattern of activity, are enterprises. The word “any” does not allow for such a limitation. See United States v. Sutton, 642 F.2d 1001, 1007 (6th Cir.), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 995 (1981) (en banc) (“The use of the term ‘any’ before ‘enterprise’ helps to make clear that ‘enterprise’ is used in an all encompassing sense”). Defendants rely, in part, upon United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), where the Supreme Court held that the existence of an enterprise “is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Id. at 583, 101 S.Ct at 2528. However, Qaoud specifically held that Turkette does not oblige this Court to adopt the position which Defendants now advance; to wit, that the enterprise must be separate and continuing apart from the illegalities. Those cases which have been relied on by the Defendants, such as United States v. Bledsoe, 674 F.2d 647 (8th Cir.)," }, { "docid": "10236582", "title": "", "text": "extend directly to Wedtech, as an enterprise, pursuant to 18 U.S.C. § 1962(b) and (c). In this circuit, a “person” liable under RICO must be an entity distinct from the enterprise, Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314-15 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). Compare Medallion TV Enterprises, Inc. v. SelectTV of California, Inc., 627 F.Supp. 1290, 1294-95 (C.D.Cal.1986) (collecting cases), affirmed, 833 F.2d 1360 (9th Cir.1987) (separate person) with United States v. Hartley, 678 F.2d 961, 988 (11th Cir.1982), cert. denied, 459 U.S. 1170, 1183, 103 S.Ct. 815, 834, 74 L.Ed.2d 1014, 1027 (1983). Some courts have held that a culpable enterprise may be held liable under § 1962(a), see Schofield v. First Commodity Corp. of Boston, 793 F.2d 28, 32 (1st Cir.1986), and Wedtech was not a mere victim of the alleged RICO activity since it appears to have benefitted directly from the alleged bribes and fraudulent statements issued by being rewarded with government contracts and by obtaining proceeds at least from the note and debenture offerings. In this district, however, it has been held that an enterprise cannot be liable even under that subsection. Rush v. Oppenheimer & Co., 628 F.Supp. 1188, 1197 (S.D.N.Y.1985). The issue remains unsettled. But, until the Second Circuit rules to the contrary, we are to follow Rush v. Oppenheimer. Thus, the portion of the claims seeking indemnity for the RICO allegations may not be disallowed under § 502(e)(1)(B). The individual complaints filed against Chinn and Mariotta also indicate that, for the most part, contingent co-liability exists between them and the debtor. In United High Income Fund, Inc. v. Neuberger, No. 87 Civ. 5839 (LBS), the plaintiffs, purchasers of 14% senior subordinated notes due August 15, 1996, sold in a public offering on August 22, 1986, sued Chinn as a director and as a controlling person under Section 15 of the Securities Act and Section 20 of the Exchange Act. It is alleged that Wedtech’s registration statement and other statements represented that Wedtech’s engineering and entrepreneurial skills ac counted" }, { "docid": "636131", "title": "", "text": "violation of RICO because it (1) failed to prove a “pattern” of racketeering activity and (2) failed to establish an enterprise “separate and apart” from the pattern of activity. Both contentions are without merit. Kirk argues that the government failed to establish the requisite pattern of racketeering activity under RICO because all of the alleged acts of mail and wire fraud related to a single scheme to defraud, the Paradise Palms venture. This argument is without merit because this circuit recently held that predicate acts may constitute a pattern of activity under RICO even though only a single scheme is involved. See United Energy Owners Committee, Inc. v. United States Energy Mgt. Sys., Inc., 837 F.2d 356, 360-61 (9th Cir.1988); Medallion Television Enterprises, Inc. v. SelecTV of California, Inc., 833 F.2d 1360, 1363 (9th Cir.1987); Sun Savings & Loan Ass’n v. Dierdorff 825 F.2d 187, 191-94 (9th Cir.1987); California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1469 (9th Cir. 1987), cert. denied, — U.S. —, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988). Kirk also argues that the government failed to establish an enterprise separate and apart from the alleged acts of racketeering activity. The government has sufficiently alleged the existence of an enterprise. Although the circuits are divided on the requirements for proof of an enterprise under United States v. Turkette, 452 U.S. 576, 582-83, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981), under either test, the existence of a corporation fulfills the requirements of an ascertainable structure apart from the predicate racketeering activity. Bennett v. Berg, 685 F.2d 1053, 1060-61 (8th Cir.1982), adopted upon reh’g en banc, 710 F.2d 1361 (8th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); see United Energy, 837 F.2d at 361-64. Here, the government presented evidence of several lawful entities existing separately from the racketeering activities, including Paradise Palms Vacation Club, Inc., Paradise Palms Vacation Club Sales, Inc., W.P.M.K., and L.S.Q. Marketing. Because the government has sufficiently proved a pattern of racketeering activity and an enterprise separate and apart from the pattern of activity," }, { "docid": "22965264", "title": "", "text": "v. DeRosa, 670 F.2d 889, 896 (9th Cir.1982) (enterprise established by compelling evidence of organization), cert. denied, 459 U.S. 993, 103 S.Ct. 353, 74 L.Ed.2d 391 (1982); United States v. Bagnariol, 665 F.2d 877, 891 (9th Cir.1981) (per curiam) (enterprise established by compelling evidence of agreement to establish organization), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). District courts in the Ninth Circuit, however, have been fairly consistent in applying the majority interpretation to determine whether a RICO enterprise existed. See In re Rexplore, Inc. Sec. Litig., 671 F.Supp. 679, 689 (N.D.Cal.1987); Sigmond v. Brown, 645 F.Supp. 243, 246 (C.D.Cal.1986), aff'd on other grounds, 828 F.2d 8 (9th Cir.1987); In re National Mortgage Equity Corp. Mortgage Pool Cert. Sec. Litig., 636 F.Supp. 1138, 1160-61 (C.D.Cal.1986); Medallion TV Enters., Inc. v. SelecTV of Cal., Inc., 627 F.Supp. 1290, 1294 (C.D.Cal.1986), aff'd on other grounds, 833 F.2d 1360 (9th Cir.1987), cert. denied, 492 U.S. 917, 109 S.Ct. 3241, 106 L.Ed.2d 588 (1989); Allington v. Carpenter, 619 F.Supp. 474 (C.D.Cal.1985) (Rymer, J.). But see Lewis v. Sporck, 612 F.Supp. 1316, 1324 (N.D.Cal.1985). We now adopt the majority interpretation of the enterprise element, which requires the organization, formal or informal, to be “an entity separate and apart from the pattern of [racketeering] activity in which it engages.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. We agree with the reasons set forth by Judge Rymer in Allington v. Carpenter, 619 F.Supp. at 479, for rejecting the minority interpretation of the enterprise element. See United Energy, 837 F.2d at 362 n. 13 (noting in dictum that Allington “correctly recognized that under Turkette every private plaintiff asserting a violation of RICO section 1962(c) must ‘plead an enterprise apart from the underlying pattern of racketeering activity.’ ” (quoting Bledsoe, 674 F.2d at 665)). First, adoption of the minority approach effectively would render the enterprise element superfluous, because under that view “every ‘pattern of racketeering activity’ becomes an ‘enterprise’ whose affairs are conducted through the ‘pattern of racketeering activity.’” Allington, 619 F.Supp. at 479. Such a result would be “incongruous given the centrality" }, { "docid": "10236581", "title": "", "text": "grounds to believe in the existence of the facts giving rise to the liability of the controlled person. That section has its anologue in section 20 of the Exchange Act. Securities and Exchange Commission v. Management Dynamics, Inc., 515 F.2d 801, 812 (2d Cir.1975). Individuals can thus be co-liable with a seller or offeror of securities pursuant to § 10(b) and Rule 10(b)-5 by virtue of § 20 and as participants. Wedtech could, but for the automatic stay, also be liable in this circuit vicariously for the acts of its employees, e.g., Marbury Management, Inc. v. Kohn, 629 F.2d 705, 712-16 (2d Cir.), cert. denied sub nom. Wood Walker & Co. v. Marbury Management, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980), and directly for common law fraud and negligent misrepresentation since it was Wedtech’s registration statements, prospectuses, and financial statements that were the basis for the underlying allegations. Thus, if Mariotta and Chinn are liable, they and the debtor could be co-liable under § 502(e)(1)(B). Liability under RICO, however, does not extend directly to Wedtech, as an enterprise, pursuant to 18 U.S.C. § 1962(b) and (c). In this circuit, a “person” liable under RICO must be an entity distinct from the enterprise, Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314-15 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). Compare Medallion TV Enterprises, Inc. v. SelectTV of California, Inc., 627 F.Supp. 1290, 1294-95 (C.D.Cal.1986) (collecting cases), affirmed, 833 F.2d 1360 (9th Cir.1987) (separate person) with United States v. Hartley, 678 F.2d 961, 988 (11th Cir.1982), cert. denied, 459 U.S. 1170, 1183, 103 S.Ct. 815, 834, 74 L.Ed.2d 1014, 1027 (1983). Some courts have held that a culpable enterprise may be held liable under § 1962(a), see Schofield v. First Commodity Corp. of Boston, 793 F.2d 28, 32 (1st Cir.1986), and Wedtech was not a mere victim of the alleged RICO activity since it appears to have benefitted directly from the alleged bribes and fraudulent statements issued by being rewarded with government contracts and by obtaining proceeds" }, { "docid": "689605", "title": "", "text": "does not follow the view adopted in Bache Halsey Stuart Shields, Inc. v. Tracy Collins Bank & Trust Co., 558 F.Supp. 1042, 1044-1047 (D.Utah 1983) that predicate acts of racketeering be alleged with enough specificity to show there is probable cause the crimes were committed. See also Medallion TV Enterprises v. SelecTV of California, 627 F.Supp. 1290, 1293 n. 4 (C.D.Cal.1986); Laterza v. American Broadcasting Co., Inc., 581 F.Supp. 408, 413 (S.D.N.Y.1984); Taylor v. Bear Steams & Co., 572 F.Supp. 667, 683 (N.D.Ga.1983). This approach has been cogently criticized by the Seventh Circuit in Haroco, Inc. v. American National Bank & Trust Co. of Chicago, 747 F.2d 384, 404 (7th Cir.1984), aff'd on other grounds, — U.S. -, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). See also Schnitzer v. Oppenheimer & Co., Inc., 633 F.Supp. 92, 96-97 (D.Ore.1985). The court believes that specificity of pleading equating to probable cause is not necessary in a civil RICO complaint. The court does conclude, however, that a RICO plaintiff should plead the facts constituting the predicate offense with the particularity required by Rule 9(b). Schnitzer v. Oppenheimer & Co., 633 F.Supp. at 96-97; Lewis v. Sporck, 612 F.Supp. 1316, 1324-1325 (N.D.Cal.1985). . The court has reservations about the viability of plaintiffs’ enterprise theory, however, and emphasizes that the proposed RICO enterprise allegation is sufficient only at the pleading stage of the litigation. This court follows the view expressed in Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786 (3d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985) that for a RICO plaintiff to recover, he must prove 1) that the enterprise is an ongoing organization with some sort of framework or superstructure for making or carrying out decisions; 2) that the members of the enterprise function as a continuing unit with established duties; and 3) that the enterprise must be separate and apart from the pattern of activity in which it engages. Id. at 789-790. See also United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); United States v. Riccobene, 709" }, { "docid": "14180834", "title": "", "text": "RICO claim was timely filed, the Court next turns to the sufficiency of plaintiffs’ RICO pleadings. As a preliminary matter, it is necessary to delineate the essential elements of a RICO claim under section 1962(c). Plaintiffs must allege that the defendants: (1) were employed by or associated with (2) an enterprise (3) engaged in, or the activities of which affect, interstate or foreign commerce, and (4) that the defendants conducted or participated in the conduct of the enterprise’s affairs (5) through a pattern of racketeering activity. See Haroco, Inc. v. American National Bank and Trust Company, 747 F.2d 384, 387 (7th Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 902, 83 L.Ed.2d 917 (1985); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir.1983), cert. denied sub nom., Moss v. Newman, — U.S.-, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). To invoke RICO’s civil remedies, plaintiffs must further allege that they “were injured in [their] business or property by reason of [defendants’] violation of section 1962(c)....” 18 U.S.C. § 1964(c); see Moss v. Morgan Stanley, Inc., supra, 719 F.2d at 17. A. “Enterprise” In United States v. Turkette, 452 U.S. 576, 590, 101 S.Ct. 2524, 2532, 69 L.Ed.2d 246 (1981), the Supreme Court determined that the enterprise element included both legitimate and illegitimate enterprises. In reaching this conclusion, the Court set forth several important principles which are applicable to the case at bar. The majority concluded that an enterprise is an entity whose members are “associated together for a common purpose of engaging in a course of conduct.” Id. at 583, 101 S.Ct. at 2528. The enterprise’s existence is established by “evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Id. Finally, the enterprise must be an entity separate and distinct from the pattern of racketeering activity in which it engages. Id; see also United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982). The Fourth Circuit, in United States v. Griffin, 660 F.2d 996 (4th" }, { "docid": "9735020", "title": "", "text": "proof of loss of money or tangible property rights) (citing McNally v. United States, — U.S. -, 107 S.Ct. 2875, 2881-82, 97 L.Ed.2d 292 (1987)). For a complete discussion of RICO in the corporate context, see 1 K. Brickey, Corporate Criminal Liability §§ 7:01-7:30 (1984 & Supp.1987). . Section 1961(4) defines a RICO “enterprise” as follows: \"enterprise\" includes any individual, partnership, corporation, association, or other .legal entity, and any union or group of individuals associated in fact although not a legal entity. . See United States v. DeRosa, 670 F.2d 889, 895-96 (9th Cir.), cert. denied, 459 U.S. 993, 103 S.Ct. 353, 74 L.Ed.2d 391 (1982); United States v. Bagnariol, 665 F.2d 877, 890-91 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). See generally United States v. Qaoud, 777 F.2d 1105, 1115-16 (6th Cir.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 899 (1986) (collecting cases) (\"Although ‘enterprise’ and ‘pattern of racketeering activity are separate elements, they may be proved by the same evidence.”). . The Allington court correctly recognized that under Turkette every private plaintiff asserting a violation of RICO section 1962(c) must \"plead an enterprise apart from the underlying pattern of racketeering activity.” 619 F.Supp. at 479 (citing United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.) (RICO enterprise must have “an 'ascertainable structure’ distinct from that inherent in the conduct of a pattern of racketeering activity.”), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982)). .See Turkette, 452 U.S. at 580, 101 S.Ct. at 2527 (emphasis added): There is no restriction upon the associations embraced by the definition [of enterprise in section 1961(4) ]: an enterprise includes any ... group of individuals associated in fact. . RICO was designed to protect legitimate enterprises from infiltration by racketeers as well as the public from the operation of illegitimate enterprises. Indeed, \"the primary purpose of RICO is to cope with the infiltration of legitimate businesses.” Turkette, 452 U.S. at 591, 101 S.Ct. at 2533. . See generally Blakey, The RICO Civil Fraud Action in Context: Reflections on" }, { "docid": "22965260", "title": "", "text": "proof (1) of an ongoing organization, formal or informal, and (2) that the various associates function as a continuing unit. Id. at 583, 101 S.Ct. at 2528. The second amended complaint adequately alleged that Appellees, as associates, functioned as a continuing unit. According to the district court, however, the second amended complaint failed to allege an organization, formal or informal, with sufficient structure to constitute an enterprise for purposes of RICO. Turkette does not specify how much structure an organization must have to be an enterprise under RICO. This issue has divided the circuit courts that have considered it. Six circuits have interpreted the Supreme Court’s decision in Turkette to require a RICO enterprise to have an ascertainable structure separate and apart from the pattern of racketeering activity in which it engages. See United States v. Riccobene, 709 F.2d 214, 223-24 (3d Cir.) (as amended), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); United States v. Tillett, 763 F.2d 628, 632 (4th Cir.1985); Atkinson v. Anadarko Bank and Trust Co., 808 F.2d 438, 441 (5th Cir.) (per curiam), cert. denied, 483 U.S. 1032, 107 S.Ct. 3276, 97 L.Ed.2d 780 (1987); Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir.1995) (citing United States v. Neapolitan, 791 F.2d 489, 499-500 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986)); United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982); United States v. Sanders, 928 F.2d 940, 944 (10th Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 142, 116 L.Ed.2d 109 (1991). The six circuits that utilize this majority interpretation of the enterprise element have expressed concern that an overly broad construction of the term “enterprise” would render that element of the offense interchangeable with the “pattern of racketeering” element. These circuits relied, in part, on language in the Turkette decision to justify their interpretation. In Turkette, the Court stated that “[t]he ‘enterprise’ is not the ‘pattern of racketeering activity’; it is an entity separate and apart from the pattern" }, { "docid": "12461625", "title": "", "text": "and two individuals, and as a result is an “associated in fact” enterprise for which a common purpose must be shown. Because seven of its members are corporations, however, the question arises as to what kinds of “purpose” a corporation must share in to be part of an association-in-fact. Although individuals charged as an associated-in-fact enterprise often also will be charged with conspiracy and will be codefendants, see, e.g., United States v. Hewes, 729 F.2d 1302, 1306, 1311 (11th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985), RICO does not require intentional or “purposeful” behavior by corporations charged as members of an association-in-fact. Individual corporations may be entirely legitimate and need not benefit from the racketeering; in fact, the criminal activity charged may harm each individual corporation by looting it, or a corporation may be used by the defendant to line his or her pockets. See United States v. Ambrose, 740 F.2d 505, 512 (7th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3479, 87 L.Ed.2d 614 (1985). Nor does RICO require that the association-in-fact be a conspiracy; there must be an enterprise regardless of whether there is any conspiracy to engage in the predicate acts of racketeering. Griffin, 660 F.2d at 999; see also In re National Mortgage Equity Corp. Mortgage Pool Certificates Sec. Litig., 636 F.Supp. 1138, 1160-61 (C.D.Cal.1986) (allegation of a combination to conspire not enough to constitute RICO enterprise). What RICO does require as a showing of common purpose is “proved by evidence of an ongoing organization, formal or informal, and evidence that the various associates function as a continuing unit.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. The government must therefore show the existence of an organization among the various corporations, Albert, and Feldman, and show that the organization has some continuity. There is little guidance as to what may constitute an “ongoing organization, formal or informal” when the association-in-fact is comprised of corporations and no conspiracy charge is leveled. In Huber, decided before Turkette, the Second Circuit found an enterprise of seven corporations all involved in hospital" }, { "docid": "3208490", "title": "", "text": "finding of a “pattern” as required for liability under Section 1962(c). 1. Enterprise. Plaintiffs allege that SelecTV and Medsel were both enterprises for the purposes of 18 U.S.C. §§ 1961(4), 1962(b), (c) (Complaint ¶¶ 26, 27). Defendants argues that plaintiffs cannot satisfy the “enterprise” requirement. Two elements are necessary to establish an “enterprise” under 18 U.S.C. §§ 1961(4), 1962(b), (c). First, there must be “evidence of an ongoing organization, formal or informal, and ... evidence that the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981). Second, the enterprise must have an existence separate and apart from the pattern of activity in which it engaged. Id.; compare United States v. Tillett, 763 F.2d 628, 632 (4th Cir.1985); United States v. Riccobene, 709 F.2d 214, 221-24 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.1982), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982) (a RICO enterprise must have “ ‘an ascertainable structure’ distinct from that inherent in the conduct of a pattern of racketeering activity”) with United States v. Bagaric, 706 F.2d 42, 55 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Weinstein, 762 F.2d 1522, 1536-37 (11th Cir.1985) (upholding RICO’s application to situations “where the enterprise [is], in effect, no more than the sum of the predicate racketeering acts”). In the instant case, defendant SelecTV cannot be the “enterprise” for purposes of RICO, since it cannot at the same time be the “person” sued under 18 U.S.C. §§ 1962(b), (c). Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984); see also Bennett v. United States Trust Co., 770 F.2d 308, 314-15 (2d Cir.1985); Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 400-02 (7th Cir.1984), aff'd per curiam, 473 U.S.-, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985); Bennett v. Berg, 685 F.2d 1053, 1061 (8th Cir.1982), aff'd in part and rev’d in part on" }, { "docid": "22965265", "title": "", "text": "Lewis v. Sporck, 612 F.Supp. 1316, 1324 (N.D.Cal.1985). We now adopt the majority interpretation of the enterprise element, which requires the organization, formal or informal, to be “an entity separate and apart from the pattern of [racketeering] activity in which it engages.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. We agree with the reasons set forth by Judge Rymer in Allington v. Carpenter, 619 F.Supp. at 479, for rejecting the minority interpretation of the enterprise element. See United Energy, 837 F.2d at 362 n. 13 (noting in dictum that Allington “correctly recognized that under Turkette every private plaintiff asserting a violation of RICO section 1962(c) must ‘plead an enterprise apart from the underlying pattern of racketeering activity.’ ” (quoting Bledsoe, 674 F.2d at 665)). First, adoption of the minority approach effectively would render the enterprise element superfluous, because under that view “every ‘pattern of racketeering activity’ becomes an ‘enterprise’ whose affairs are conducted through the ‘pattern of racketeering activity.’” Allington, 619 F.Supp. at 479. Such a result would be “incongruous given the centrality of the ‘enterprise’ element in the statutory scheme.” Id. See Neapolitan, 791 F.2d at 500. Second, adoption of the minority approach would strip RICO of its focus on “organized” crime by ignoring “the organizational nexus at the heart of the RICO scheme.” Alling ton, 619 F.Supp. at 479. “The statute was directed at ‘organized’ crime, which, unlike individual and group crime, has access to resources that pose a special threat to legitimate business.” Id. (citing Cressy, “The Functions and Structure of Criminal Syndicates,” Task Force Report: Organized Crime, the President’s Commission on Law Enforcement and Administration of Justice (1967)). See Neapolitan, 791 F.2d at 500; Bledsoe, 674 F.2d at 662. Finally, adoption of the minority approach would permit proof of a conspiracy to satisfy the enterprise element of § 1962(c). Allington, 619 F.Supp. at 479. This, in turn, would render § 1962(d), which makes it unlawful to conspire to violate § 1962(c), a proscription of conspiracies to conspire. Id. “Because RICO does not require proof of a single agreement as in [the standard 18 U.S.C." }, { "docid": "4987494", "title": "", "text": "stated that \"The plain meaning of [§ 1962(c) ] indicates that the reference to enterprise was included to denote an entity larger than, and conceptually distinct from, any pattern of racketeering activity through which the enterprise’s affairs might be conducted.” 605 F.2d 260, 266 (6th Cir.1979). . The court relied on a dictum in Turkette to the effect that \"proof used to establish the 'pattern of racketeering activity’ element 'may in particular cases coalesce’ with the proof offered to establish the ‘enterprise’ element of RICO.” Mazzei, 700 F.2d at 89; Moss, 719 F.2d at 22. In neither case did the court expound on the facts that gave rise to the finding that this was a \"particular” case. The court, in Mazzei, also expressed concern that if it adopted the separate entity requirement, \"a large-scale underworld operation which engaged solely in trafficking of heroin would not be subject to RICO’s enhanced sanctions.” This objection can be counteracted by an interpretation of the separateness requirement such as that adopted by Riccobene. . The Ninth Circuit appears to agree. United States v. Bagnariol, 665 F.2d 877, 890 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). But cf. United States v. DeRosa, 670 F.2d 889, 895-96 (9th Cir.1982), cert. denied, 459 U.S. 993, 103 S.Ct. 353, 74 L.Ed.2d 391 (1983), (government proved an enterprise that was wider than the predicate acts). . This is in keeping with the policies of the Federal Rules of Civil Procedure where allegations of fraud are concerned. F.R-Civ.P. 9(b) requires allegations of fraud to be stated with particularity. This has been applied to the pleading of the elements of a RICO charge. Taylor v. Bear Stearns & Co., 572 F.Supp. 667, 682-83 (N.D.Ga.1983); see also Kirschner v. Cable/Tel Corp., 576 F.Supp. 234, 241-42 (E.D.Pa. 1983). The reasons underlying the rule justify this application. Rule 9(b) has been justified on the ground that fraud embraces a wide variety of potential conduct, so that a defendant needs a substantial amount of particularized information in order to prepare a response. Trussell v. United Underwriters, Ltd., 228" }, { "docid": "2725238", "title": "", "text": "1343, has the same expansive test. An inherently fraudulent pyramid scheme that meets the Kos-cot factors would fall within these broad definitions of fraud. Securities fraud violations under 10b-5 and § 12(2) are predicate acts for RICO. See Laird v. Integrated Resources, Inc., 897 F.2d 826, 838 (5th Cir.1990) (10b-5); Metromedia Co. v. Fugazy, 753 F.Supp. 93, 98 (S.D.N.Y.1990), aff'd as amended on other grounds, 983 F.2d 350 (2d Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993) (§ 12(2)). As discussed above, plaintiffs survive summary judgment on these claims. . The circuits are split on whether RICO requires the existence of an \"ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity.” United States v. Blinder, 10 F.3d 1468, 1473 (9th Cir.1993) (internal quotations omitted). Because Webster has offered evidence of a separate structure, we find it unnecessary to decide whether a RICO plaintiff can state a cause of action without offering proof of a separate structure. . District courts are split on the issue. Compare Medallion TV Enterprises, Inc. v. SelecTV of California, Inc., 627 F.Supp. 1290, 1301 n. 7 (C.D.Cal.1986) (collecting cases which state a \"corporation can only act through its officers and representatives, who cannot conspire with corporation of which they are a part”), aff'd on other grounds, 833 F.2d 1360 (9th Cir.1987), cert. denied, 492 U.S. 917, 109 S.Ct. 3241, 106 L.Ed.2d 588 (1989), with Ashland Oil, 875 F.2d at 1281 n. 10 (collecting cases to the contrary). . Section 12(1) (15 U.S.C. § 771(1)) creates a cause of action for anyone who has purchased securities sold in violation of § 77e. . None of the proposed evidence or discovery materials relate to whether Adkins was conspiring to participate in Omnitrition’s operation or management, or establish plaintiffs' securities claims were timely filed against the Attorney Defendants." } ]

[ { "docid": "11585186", "title": "", "text": "axiomatic that- decisions on the merits, are not to be avoided on grounds of technical violations of procedural rules, see Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962), and we have read notices of appeal liberally.- See CTC Imports and Exports v. Nigerian Petroleum Corp., 951 F.2d 573, 576 (3d Cir.1991). Such treatment is particularly appropriate where the order appealed is discretionary and relates back to the judgment sought to be reviewed. Elfman Motors, 567 F.2d at 1254. This court will exercise appellate jurisdiction over orders that are not specified in the notice of appeal where: (1) .there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues. See MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1092 (3d Cir.1995) (citations and internal quotations omitted), cert. denied, — U.S. -, 117 S.Ct. 64, 136 L.Ed.2d 25 (1996); Lusardi v. Xerox Corp., 975. F.2d 964, 972 (3d Cir.1992); Williams v. Guzzardi 875 F.2d 46, 49 (3d Cir.1989). In the attorney’s fee context, this court has found that “an adequate connection exists between a specified order that designates the prevailing party for purposes of attorney’s fees and an unspecified order that quantifies the attorney’s fee award.” MCI Telecommunications, 71 F.3d at 1093. Similarly, where “subsequent appellate proceedings manifest the appellant’s intent to appeal the attorney’s fees issue,” and where “the opposing party had and exercised a fidl opportunity to brief the issue and did not raise any claim of prejudice,” this Court has found a notice of appeal specifying one attorney’s fee order sufficient to confer jurisdiction over an appeal from another unspecified attorney’s fee order in the same case. Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 156 n. 10 (3d cir.1994). In this case, the earlier attorney’s fee order was connected to the order specified in the notice of appeal in that the earlier order established the legal basis for the award of fees that" } ]

[ { "docid": "14730597", "title": "", "text": "especially those filed pro se, are liberally construed, and we can exercise jurisdiction over orders not specified in a notice of appeal if \"(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir.2010) (quotation marks and citation omitted). Those requirements are met here. In his Notice of Appeal, Powell listed the date of the Magistrate Judge's Report and Recommendation rather than the final order of the District Court. However, those two documents are closely related, as Dr. Symons concedes. Moreover, Powell’s intent is clearly to appeal the final order adopting the Report and Recommendation as this is the only means of obtaining relief from the summary judgment decision he challenges. Moreover, Dr. Symons has had a full opportunity to brief all the issues and has not been prejudiced by Powell’s error. . Powell did not object to the Magistrate Judge's orders denying his motions for counsel, as required by Middle District of Pennsylvania Rule 72.2. \"Normally, a party who fails to object before the district court to a magistrate judge's ruling on a non-dispositive pretrial matter waives that objection on appeal.” Tabron v. Grace, 6 F.3d 147, 153-54 n. 2 (3d Cir.1993). However, in light of Powell’s pro se status and the fact that the Magistrate Judge’s orders did not notify Powell that he risked waiving his appellate rights by failing to object, this court has discretion to reach the issue. See Leyva v. Williams, 504 F.3d 357, 364-65 (3d Cir.2007); Tabron, 6 F.3d at 153 n. 2. . We express our appreciation to counsel for amici Karen Daly and Stephen McConnell and their law firm, Dechert LLP, for undertaking this responsibility. It is in the best tradition of the Philadelphia bar. . In a not dissimilar context, this court has previously had occasion to consider the standard for appointment of counsel under 28 U.S.C. § 1915(e), a statute that \"gives" }, { "docid": "23318689", "title": "", "text": "final judgment draws in question all prior non-final orders and rulings which produced the judgment.” Elfman, 567 F.2d at 1253. Additionally, we have held that we exercise appellate jurisdiction over \"orders that are not specified in the notice of appeal where: (1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Polonski v. Tramp Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998). The district court’s September order: (1) denied Trans Union’s motion for judgment as a matter of law; (2) denied Trans Union's motion for a new trial as to liability; (3) partially granted Cortez’s motion for counsel fees and expenses; and (4) granted Trans Union's motion for a new trial as to damages, unless the Plaintiff accepted a remittitur. On October 12, 2007, Cortez filed a notice of appeal in which she appealed the September order. On February 14, 2008, we dismissed Cortez’s appeal for lack of appellate jurisdiction because the September order was not a final judgment. On May 1, 2008, the district court issued a final judgment. The May order specifically referenced the September order and the district court judge stated that the final judgment was entered as a result of Plaintiff's acceptance of the remittitur. The May order entered judgment in favor of Plaintiff and awarded her remitted damages, counsel fees, and costs. It is clear from this procedural history that the September order is \"fairly inferred” by both parties' notice of appeal. Cortez attempted to appeal the September order, but because it was not a final order, she was unable to do so. The final judgment of May 1, 2008 cannot be understood without the September order and is clearly a product of that order. Additionally, there is a clear connection between the two orders; the intention to appeal the September order is apparent in both parties’ briefs; and neither party has been prejudiced as evidenced by their in-depth briefing of the issues raised in the" }, { "docid": "9347543", "title": "", "text": "under Federal Rules of Appellate Procedure 3(c)(1)(B) and 4(a)(1)(A). (Appellee’s Br. 21.) The Commonwealth’s Notice of Appeal does not mention any appeal from the portion of the June 21, 2004 order adopting Magistrate Judge Scuderi’s Supplemental Report (which held, pursuant to the District Court’s remand order of September 6, 2002, that Satterfield’s King’s Bench Petition was properly filed and therefore tolled under AEDPA’s statutory tolling provisions). See 28 U.S.C. § 2244(d)(2). Had the Commonwealth filed a notice of appeal from the entire order granting collateral relief, the appeal of that final judgment would have “draw[n] into question all prior non-final orders and rulings.” MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1092 (3d Cir.1995) (quoting Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.1990)). The Commonwealth’s notice only identified the portion of the District Court’s order dealing with ineffective assistance of counsel. Thus, the question is not whether an appeal from a final order implicates all prior non-final orders, but whether an appeal from a portion of a final order determining the merits of a federal habeas petition implies an appeal from another portion of that same final order dealing with time-bar under AEDPA. We interpret the notice requirements of Rules 3 and 4 liberally, exercising appellate jurisdiction over orders not specified in a notice of appeal if: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998). The District Court’s order adopting the magistrate judge’s Supplemental Report regarding statutory tolling was related to the claim for ineffective assistance of counsel because the ineffective assistance of counsel claim could not be reached without disposing of the issue of timeliness. See id. (treating notice of appeal specifying summary judgment order as including appeal of separate order granting attorney’s fees); Drinkwater, 904 F.2d at 858 (notice of appeal designating portions of a summary judgment order on sex discrimination claim" }, { "docid": "14730596", "title": "", "text": "incompetent and remains unrepresented, Rule 17(c) requires that a guardian be appointed or some other remedial step taken. III. The fact that we remand does not suggest that either District Judge erred in the procedure each followed. Each Judge was conscientious in his or her review. We had not previously turned our attention, and therefore theirs, to Rule 17. Only after the issue of the propriety of appointing a representative on behalf of each of these plaintiffs is considered can we be satisfied that the process required by Rule 17 has been satisfied. . He subsequently explained that he sent those threats so he would be transferred to federal prison. .Because Powell asserts a claim under the Eighth Amendment and sued under 42 U.S.C. § 1983, the District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over his appeal under 28 U.S.C. § 1291. We reject Dr. Symons' argument that, because Powell cited the wrong order in his Notice of Appeal, this court is without jurisdiction over Powell's appeal. Notices of appeal, especially those filed pro se, are liberally construed, and we can exercise jurisdiction over orders not specified in a notice of appeal if \"(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir.2010) (quotation marks and citation omitted). Those requirements are met here. In his Notice of Appeal, Powell listed the date of the Magistrate Judge's Report and Recommendation rather than the final order of the District Court. However, those two documents are closely related, as Dr. Symons concedes. Moreover, Powell’s intent is clearly to appeal the final order adopting the Report and Recommendation as this is the only means of obtaining relief from the summary judgment decision he challenges. Moreover, Dr. Symons has had a full opportunity to brief all the issues and has not been prejudiced by Powell’s error. . Powell did not object" }, { "docid": "22228963", "title": "", "text": "and the amount of the attorney’s fee award. II. DISCUSSION A. Appellate Jurisdiction We must first determine whether we have jurisdiction to review the issues raised by Teleconeepts on appeal. The notice of appeal reads as follows: Teleconeepts, Inc., defendant-third party plaintiff appeals to the United States Court of Appeals for the Third Circuit from an order of summary judgment disposing the remaining claims of the District Court for the District of New Jersey entered in this case June 20,1994, in favor of third party defendant, Bell of Pennsylvania and December 28,1993 in favor of plaintiff, MCI Telecommunications, Inc. App. at 1. Federal Rule of Appellate Procedure 3(c) provides, in pertinent part, that a notice of appeal “must designate the judgment, order or part thereof appealed from....” Fed.R.App.P. 3(c). If a party does not satisfy the requirements of Federal Rule of Appellate Procedure 3(c), then the appellate court does not acquire jurisdiction over the undesignated issues. United States v. Rivera Constr. Co., 863 F.2d 293, 298 (3d Cir.1988). Even though the notice of appeal does not mention the September 15, 1992 order (denying Teleconeepts’ motion to dismiss) or the district court’s February 25, 1994 memorandum and order (calculating MCI’s award of reasonable attorney’s fees), Teleconeepts challenges both of these decisions in its brief to this court. MCI argues that we did not acquire jurisdiction over these issues since these orders are neither directly nor indirectly referred to in the notice of appeal. Appellee’s brief at 6. “Our jurisprudence liberally construes notices of appeals.” Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.1990). Thus, we have held that it is proper to exercise appellate jurisdiction over orders not specified in the notice of appeal if “ ‘there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issues.’ ” Lusardi v. Xerox Corp., 975 F.2d 964, 972 (3d Cir.1992) (quoting Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989)). These factors are present here. We have" }, { "docid": "22352009", "title": "", "text": "final judgment dismissing all class action claims” effectively drew into question all prior non-final orders. Appellants’ Reply Brief at 16. In support of this proposition, they rely on the suggested form for a notice of appeal set out in the Appendix of Forms to the Federal Rules of Appellate Procedure, which allows an appeal simply from “the final judgment,” identifying it only by date. However, appellants did not appeal generally from “the final judgment” on the class claims. Rather, appellants stated that they were appealing from an opinion and order of Judge Politan which declined to amend an earlier opinion and order of Judge Politan. Having referred specifically to those two district court orders, appellants had the responsibility to designate any separate orders that they sought review of: When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal. Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977). Recently, we translated the standard into a three-pronged test, under which it is proper to exercise appellate jurisdiction over unspecified prior orders only if there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issues. Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989). None of these factors is present here. Where a connection between the unspecified and specified orders has been found, the link has been clear and direct. See, e.g., Matute v. Procoast Navigation, Ltd., 928 F.2d 627, 629 (3d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 329, 116 L.Ed.2d 270 (1991) (appealing from order denying motion for reconsideration gives notice of intent to appeal underlying order of dismissal); Drinkwater, 904 F.2d at 858 (reviewing unspecified summary judgment order only insofar as it included a claim that was" }, { "docid": "3116440", "title": "", "text": "qualified immunity. This order was final and made the earlier interlocutory summary judgment appeal-able. Shea appealed once more. II. Before we discuss the merits, we must confront a jurisdictional issue. Federal Rule of Appellate Procedure 3(c) provides: “The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from....” Shea’s notice of appeal said that she appeals from the “Judgment Order for Summary Judgment entered on September 16,1991.” This final order granted summary judgment in favor of Smith and Baker. The claim against Rumgay, of course, was decided earlier. Rumgay contends that we do not have appellate jurisdiction to review his summary judgment because the notice of appeal did not specify that Shea was appealing from the order granting him summary judgment and therefore it did not meet the requirements of Rule 3(c). We disagree. The notice of appeal is effective for all parties. We liberally construe the requirements of Rule 3. We have held that when an appellant gives notice that he is appealing from a final order, failing to refer specifically to earlier orders disposing of other claims or other parties does not preclude us from reviewing those orders. Murray v. Commercial Union Ins. Co., 782 F.2d 432, 434 (3d Cir.1986). We reasoned, “in their appellate briefs all parties addressed every issue presented to the district court, and in fact plaintiffs could not appeal the early dismissals of the second and third counts until the final judgment was entered.” Id. at 434. We have held that appellate jurisdiction vests over orders not specified in the notice of appeal'if there is a connection between the specified and unspecified orders, the intention to appeal the unspecified order is apparent, the opposing party is not prejudiced and has a full opportunity to brief the issues. Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989). See Gooding v. Warner-Lambert Co, 744 F.2d 354, 357 n. 4 (3d Cir.1984) (appellate jurisdiction vests over unspecified prior, order dismissing one claim where notice of appeal specified order granting summary judgment on remaining claim as" }, { "docid": "22887749", "title": "", "text": "for review if it appears from the notice of appeal itself and the subsequent proceedings on appeal that the appeal was intended to have been taken from the unspecified judgment, order, or part thereof. See Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) (citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). To determine whether appellate jurisdiction vests over an order that is not specified in the notice of appeal, we consider in particular whether there is a connection between the specified and unspecified orders, whether the intention to appeal the unspecified order'is apparent, whether the opposing party was prejudiced by the appellant’s failure to specify the correct order, and whether the opposing party has had a full opportunity to brief the issues. Shea, 966 F.2d at 129 (citing Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989)). In Benn’s case, treating the order attached to the complaint as the specified order and the order Benn sought to appeal as the unspecified order, it is apparent that both orders were connected in that they were dispositive of the same case and issued on the same day, albeit as to different parties. The Judicial District had notice of Benn’s intention to appeal the grant of summary judgment in a telephone conference held with the District Court on September 6, 2001, the day on which the relevant orders were issued. Indeed, the Judicial District does not dispute that it had notice of Benris intention to appeal the grant of summary judgment, nor does it argue that it was in any way prejudiced by the defective October 4 Notice. Nor could it so argue realistically, as Benn’s mistake was caught and corrected in time to afford the Judicial District a full and fair opportunity to brief the issues, including the adequacy of the notice, which it has done. The October 4 Notice of Appeal, albeit imperfect, constitutes the “functional equivalent” of a proper notice, and it is therefore sufficient to vest us with jurisdiction to decide the question of the Judicial District’s immunity. We" }, { "docid": "8933556", "title": "", "text": "recognized, CashCall’s abandonment of its proof of claim and consequent release of Moses from her obligations under the loan agreement altogether moots Moses’s core claim. And, once CashCall abandons its proof of claim and releases Moses from her obligations under the loan agreement, the sine qua non of the bankruptcy court’s justification for retaining jurisdiction over Moses’s non-core claim evaporates; there is no core claim to remit to arbitration, and the only question is whether to compel arbitration on Moses’s non-core claim. Cf. EQT Prod. Co. v. Adair, 764 F.3d 347, 364-65 (4th Cir.2014) (suggesting that pendent appellate jurisdiction is available when resolution of a pendent issue is necessary to resolve an issue properly before the court on appeal). Accordingly, I would elect to exercise pendent appellate jurisdiction over the bankruptcy court’s order denying withdrawal of the proof of claim. Turning to whether CashCall properly designated this order for appeal, I note that “[n]otices of appeal ... are liberally construed, and we can exercise jurisdiction over orders not specified in a notice of appeal if (1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Powell v. Symons, 680 F.3d 301, 306 n. 2 (3d Cir.2012) (citation and internal quotation marks omitted); see United States ex rel. Hefner v. Hackensack Univ. Med. Ctr., 495 F.3d 103, 108 n. 1 (3d Cir.2007) (exercising discretion to review an order not specified in the notice of appeal, as there was a “definite connection” between that order and an order that had been specified); see also MLC Auto., LLC v. Town of Southern Pines, 532 F.3d 269, 279-80 (4th Cir.2008) (recognizing that notices of appeal are to be liberally construed, and that a party may demonstrate an intent to appeal an order not specified in the notice of appeal, as long as the appellee is not prejudiced by the appellant’s failure to specifically note that order). As already discussed above, there is undoubtedly, a close connection" }, { "docid": "10631526", "title": "", "text": "specifies only the district court’s order dated September 4, 2002, and entered by the clerk on September 5, 2002, which affirmed the bankruptcy court’s August 1998 order; the notice fails to specify the district court’s order dated September 4, 2002, and entered by the clerk on September 6, 2002, which affirmed the bankruptcy court’s October 1999 order. “When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal.” Lusardi v. Xerox Corp., 975 F.2d 964, 972 (3d Cir.1992) (quoting Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977)). But we may exercise appellate jurisdiction over an order not specified in a notice of appeal where “there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issues.” Id. (citation omitted). In determining whether a notice encompasses an unspecified order, we follow a “policy of liberal construction of notices of appeal ... where the intent to appeal an unmentioned or mislabeled ruling is apparent and there is no prejudice to the adverse party.” Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 202 n. 1 (3d Cir.2001) (citations omitted). Despite the notice’s failure to specify the order entered September 6, we will exercise appellate jurisdiction over both orders for several reasons. First, the caption of the notice references the bankruptcy court docket numbers for both adversary actions, reflecting an intent to appeal the district court’s disposition of the bankruptcy court’s rulings in both actions. Moreover, the body of the notice identifies all plaintiffs and defendants in both of the adversary actions as Appellants and Ap-pellees, respectively. Because the claims in both adversary actions are virtually identical, and were disposed of by the district court based on the same reasoning, Appellees cannot" }, { "docid": "23318241", "title": "", "text": "October 30, 2008[,] issued by Judge Conaboy denying Sulima’s right to a jury trial on claims under the Americans with Disabilities Act along with the Judg ment entered on October 30, 2008.” App. 1. If an appeal is taken only from a specified judgment, the court does not acquire jurisdiction to review other judgments not specified or “fairly inferred” by the Notice. Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977). However, “[o]ur jurisprudence liberally construes notices of appeal.” Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.1990). In this vein, we have held that we can exercise jurisdiction over orders not specified in the Notice of Appeal if: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998) (citing Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989)). These conditions are satisfied here. While Sulima’s original notice of appeal only directly referenced the October 30 Order, it also named Tobyhanna as a party to the appeal. As noted above, the April 11 Order did not resolve all of the claims against all of the parties, and therefore did not become final until the issuance of the October 30 Order. As we have previously held, because “only a final judgment or order is appealable, the appeal from a final judgment draws in question all prior non-final orders and rulings.” Elfman Motors, 567 F.2d at 1253. Therefore, because the April 11 Order did not become final until the issuance of the October 30 Order, and because the October 30 Order denied Sulima’s motion to reinstate Tobyhanna as a defendant, the orders are sufficiently connected. See DHnkwater, 904 F.2d at 858 (finding a connection when, even though a previous order had dismissed one claim, the order specified in the Notice of Appeal discussed in detail the merits of the dismissed claim). Sulima’s Notice of Appeal also demonstrated" }, { "docid": "23601546", "title": "", "text": "Hilton, but she was later instructed by Kahwaty that she should have stayed at the somewhat less expensive Holiday Inn. Kahwaty told her to reimburse Union Carbide for the difference. . Kahwaty flatly contradicts these allegations, but we are bound to interpret the evidence in the light most favorable to the plaintiff if it is reasonable. See supra note 1. . UC was named as a defendant in all counts. Kahwaty was named in counts two through seven and count nine. Pratt was named in counts three through five, seven and nine. . Such a rule is consistent with the Supreme Court's pronouncement in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988), that although courts may not waive the jurisdictional requirements of Fed.R.App.P. 3 and 4, they may nevertheless construe those rules liberally. See United States v. Rivera Construction Co., Inc., 863 F.2d 293 (3d Cir.1988). Moreover, a liberal reading of the Elfman standard has been endorsed by this court after Torres. In Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989), we noted that it is proper to exercise appellate jurisdiction \"over orders not specified in the notice of appeal if there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issue.” See also Murray v. Commercial Union Insurance Co., 782 F.2d 432 (3d Cir.1986). . We do not find the same degree of interdependence or incorporation between counts one and six (the discrimination in payments and defamation claims), the judgments on which were not specifically appealed from, and the claims (retaliation, constitutional, wrongful discharge and contractual) that were specifically appealed from. Thus, particularly in light of plaintiffs failure even to mention counts one and six before this court, we will treat the May 27, 1987 order in favor of defendants on those counts as unappealable at this late date. See Fed.R.App.P. 4(a)(1). . It is possible that plaintiff is also asserting a quid pro quo sexual" }, { "docid": "23514639", "title": "", "text": "Rule 7.1(g) is jurisdictional. In any event, we need not address the consequences of an untimely motion for reconsideration under a local rule because we construe Wiest’s motion as one under Rule 59(e). See, e.g., Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986) (“For purposes of Rule 4(a) of the Federal Rules of Appellate Procedure, we view a motion characterized only as a motion for reconsideration as the functional equivalent of a Rule 59(e) motion to alter or amend a judgment.”) (internal quotation marks omitted); see also Green v. Drug Enforcement Admin., 606 F.3d 1296, 1299 (11th Cir.2010) (noting the prevalence of courts construing motions for reconsideration as Rule 59(e) motions); Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 856 (8th Cir.2008) (“A ‘motion for reconsideration’ is not described in the Federal Rules of Civil Procedure, but such a motion is typically construed as either a Rule 59(e) motion to alter or amend the judgment or as a Rule 60(b) motion for relief from judgment.”). Because Wiest filed his Motion for Reconsideration within Rule 59(e)’s twenty-eight day time limit, we conclude that the motion was timely. Tyco also argues that the scope of our review is limited to the District Court’s November 2011 Order denying reconsideration because Wiest did not designate for appeal the District Court’s July 2011 Order granting Tyco’s Motion to Dismiss. When a party appeals only a specified judgment, we acquire jurisdiction to review only that judgment or a judgment “ ‘fairly inferred’ ” by the notice of appeal. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir.2010) (quoting Elf-man Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977)). Yet, we have also held that we “liberally construe[] notices of appeal.” Id. (internal quotations marks omitted). We may exercise appellate jurisdiction over orders not specified in the notice of appeal where: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the" }, { "docid": "9347544", "title": "", "text": "merits of a federal habeas petition implies an appeal from another portion of that same final order dealing with time-bar under AEDPA. We interpret the notice requirements of Rules 3 and 4 liberally, exercising appellate jurisdiction over orders not specified in a notice of appeal if: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998). The District Court’s order adopting the magistrate judge’s Supplemental Report regarding statutory tolling was related to the claim for ineffective assistance of counsel because the ineffective assistance of counsel claim could not be reached without disposing of the issue of timeliness. See id. (treating notice of appeal specifying summary judgment order as including appeal of separate order granting attorney’s fees); Drinkwater, 904 F.2d at 858 (notice of appeal designating portions of a summary judgment order on sex discrimination claim treated as related to prior order dismissing retaliation count of same complaint). The Commonwealth’s intention to appeal the issue of timeliness was “clearly manifest” from its first brief. The Commonwealth’s brief, filed February 7, 2004, devotes thirteen pages to arguing the District Court’s ruling on statutory tolling. (Appellants’ Br. 14-27.) There is no evidence that the Commonwealth’s failure to include its objection to statutory tolling prejudiced Satterfield. He had ample time to prepare a response on the issue of statutory tolling, although he declined to address statutory tolling and argued only the question of equitable tolling in his brief. (Appellee’s Br. 21.) Cf. United States v. Bendolph, 409 F.3d at 169 (holding that one-month notice for habeas corpus petitioner to prepare brief on issue of timeliness raised sua sponte is sufficient to avoid prejudice). B. Satterfield Is Not Entitled to Statutory Tolling AEDPA imposes a one-year statute of limitations on all federal habeas claims, subject to tolling for the time a “properly filed application for State post-conviction or other collateral review with respect to the" }, { "docid": "22228964", "title": "", "text": "not mention the September 15, 1992 order (denying Teleconeepts’ motion to dismiss) or the district court’s February 25, 1994 memorandum and order (calculating MCI’s award of reasonable attorney’s fees), Teleconeepts challenges both of these decisions in its brief to this court. MCI argues that we did not acquire jurisdiction over these issues since these orders are neither directly nor indirectly referred to in the notice of appeal. Appellee’s brief at 6. “Our jurisprudence liberally construes notices of appeals.” Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.1990). Thus, we have held that it is proper to exercise appellate jurisdiction over orders not specified in the notice of appeal if “ ‘there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issues.’ ” Lusardi v. Xerox Corp., 975 F.2d 964, 972 (3d Cir.1992) (quoting Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989)). These factors are present here. We have repeatedly held that “ ‘since ... only a final judgment or order is appealable, the appeal of a final judgment draws into question all prior non-final orders and rulings.’ ” Drinkwater, 904 F.2d at 858 (quoting Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir.1977)). Telecon-cepts could not appeal the September 15, 1992 order denying its motion to dismiss MCI’s complaint until the district court filed the December 28, 1993 order of summary judgment in favor of MCI. Moreover, in disposing of the remaining issues, the December 28, 1998 memorandum opinion refers to the district court’s September 15, 1992 order denying Teleconcepts’ motion to dismiss. Thus, the requisite connection is present. Similarly, while the notice of appeal does not refer to the February 25, 1994 memorandum and order calculating MCI’s award of reasonable attorney’s fees, an adequate connection exists between a specified order that designates the prevailing party for purposes of attorney’s fees and an unspecified order that quantifies the attorney’s fee award. See Bernardsville Bd. of Educ. v. J.H., 42 F.3d" }, { "docid": "3116441", "title": "", "text": "appealing from a final order, failing to refer specifically to earlier orders disposing of other claims or other parties does not preclude us from reviewing those orders. Murray v. Commercial Union Ins. Co., 782 F.2d 432, 434 (3d Cir.1986). We reasoned, “in their appellate briefs all parties addressed every issue presented to the district court, and in fact plaintiffs could not appeal the early dismissals of the second and third counts until the final judgment was entered.” Id. at 434. We have held that appellate jurisdiction vests over orders not specified in the notice of appeal'if there is a connection between the specified and unspecified orders, the intention to appeal the unspecified order is apparent, the opposing party is not prejudiced and has a full opportunity to brief the issues. Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989). See Gooding v. Warner-Lambert Co, 744 F.2d 354, 357 n. 4 (3d Cir.1984) (appellate jurisdiction vests over unspecified prior, order dismissing one claim where notice of appeal specified order granting summary judgment on remaining claim as the earlier order could not be appealed until judgment was entered on the remaining claim, and parties briefed and argued all issues); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) (per curiam) (“if from the notice of appeal itself and the subsequent proceedings on appeal it appears that the appeal was intended to have been taken from an unspecified judgment, order or part thereof, the notice may be construed as bringing up the unspecified order for review”). See also CTC Imports and Exports v. Nigerian Petroleum, 951 F.2d 573, 576 (3d Cir.1991) (where appellant appealed from a denial of a motion it never filed and where it was clear appellant intended and tried to appeal from an unspecified order, the notice of .appeal will be treated as “an effective, although inept, attempt to appeal from” the unspecified order if there is no prejudice to the parties). Our law is consistent with the Supreme Court. See Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962) (the" }, { "docid": "23318688", "title": "", "text": "is nothing in Cortez's limited discussion of attorney's fees and costs to support an abuse of discretion. . Both Trans Union’s and Cortez's notice of appeal only directly reference the District Court’s Memorandum and Judgment Order (collectively referred to as \"May order”) entered May 1, 2008. However, in their briefs it is clear that both parties are also appealing the district court's Memorandum and Order and Order (collectively referred to as \"September order”) entered September 13, 2007. It is a requirement of Federal Rule of Appellate Procedure 3(c)(1)(b) that a notice of appeal \"designate the judgment, order, or part thereof being appealed.” \"If an appeal is taken only from a specified judgment, the court does not acquire jurisdiction to review other judgments not specified or fairly inferred by the Notice.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir.2010) (quotations omitted) (citing Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977)). We have previously held that because \"only a final judgment or order is appealable, the appeal from a final judgment draws in question all prior non-final orders and rulings which produced the judgment.” Elfman, 567 F.2d at 1253. Additionally, we have held that we exercise appellate jurisdiction over \"orders that are not specified in the notice of appeal where: (1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Polonski v. Tramp Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998). The district court’s September order: (1) denied Trans Union’s motion for judgment as a matter of law; (2) denied Trans Union's motion for a new trial as to liability; (3) partially granted Cortez’s motion for counsel fees and expenses; and (4) granted Trans Union's motion for a new trial as to damages, unless the Plaintiff accepted a remittitur. On October 12, 2007, Cortez filed a notice of appeal in which she appealed the September order. On February 14, 2008, we dismissed Cortez’s appeal for" }, { "docid": "23318240", "title": "", "text": "Roadrunner Trucking, 966 F.2d 777, 779 (3d Cir.1992). The District Court here did not make such a certification, and therefore the District Court’s judgment did not become “final” until its order of October 30, 2008. Sulima filed his Notice of Appeal on November 29, 2008, within the sixty-day limitation. Sulima’s failure to fully specify his intent to appeal the District Court’s Order of April 2008 in the Notice of Appeal does not preclude our exercise of jurisdiction. A Notice of Appeal must specify the “judgment, order, or part thereof being appealed.” Fed. R.App. P. 3(c)(1)(B). Here, Sulima’s original Notice of Appeal stated that he was appealing from the “October 30, 2008[,] Order and Decision issued by Judge Conaboy denying Sulima’s right to a jury trial on claims under the Americans with Disabilities Act.” App. 3. This Notice listed both DS2 and Tobyhanna as parties to the appeal. Later, on August 18, 2009, Sulima filed an Amended Notice of Appeal, which stated that he was appealing from the “Orders and Decisions of April 11, 2008, [and] October 30, 2008[,] issued by Judge Conaboy denying Sulima’s right to a jury trial on claims under the Americans with Disabilities Act along with the Judg ment entered on October 30, 2008.” App. 1. If an appeal is taken only from a specified judgment, the court does not acquire jurisdiction to review other judgments not specified or “fairly inferred” by the Notice. Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977). However, “[o]ur jurisprudence liberally construes notices of appeal.” Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.1990). In this vein, we have held that we can exercise jurisdiction over orders not specified in the Notice of Appeal if: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998) (citing Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989)). These" }, { "docid": "23437652", "title": "", "text": "of the order dismissing the motion for judgment n.o.v. or a new trial does not bring up the merits of that motion. See Frangos v. Doering Equip. Corp., 860 F.2d 70, 73 n. 4 (3d Cir.1988). However, “if from the notice of appeal itself and the subsequent proceedings on appeal it appears that the appeal was intended to have been taken from an unspecified judgment^] order or part thereof, the notice may be construed as bringing up the unspecified order for review.” Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) (per curiam). We have appellate jurisdiction over orders not specified in the notice of appeal if there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issues. See Murray v. Commercial Union Ins. Co., 782 F.2d 432, 434-35 (3d Cir.1986) (appellate jurisdiction over unspecified prior order dismissing two of three counts where notice of appeal specified order granting summary judgment on remaining count, parties briefed all issues and earlier dismissals could not be appealed until final judgment entered); Gooding v. Warner-Lambert Co., 744 F.2d 354, 357 n. 4 (3d Cir.1984) (appellate jurisdiction over unspecified prior order dismissing one claim where notice of appeal specified order granting summary judgment on remaining claim, dismissal could not be appealed until judgment entered on other claim, and parties briefed and argued all issues); see also Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962) (where notice of appeal from denial of motion to vacate judgment and amend complaint did not specify prior judgment dismissing complaint, but premature notice of appeal specified judgment of dismissal and parties briefed and argued merits of dismissal, court had jurisdiction over earlier judgment since intent to appeal from it was manifest and respondent was not misled or prejudiced). All those factors are present here. The appellants properly moved for a directed verdict, a prerequisite for a judgment n.o.v. motion. See Fed.R.Civ.P. 50(a), (b). The denial" }, { "docid": "23514640", "title": "", "text": "for Reconsideration within Rule 59(e)’s twenty-eight day time limit, we conclude that the motion was timely. Tyco also argues that the scope of our review is limited to the District Court’s November 2011 Order denying reconsideration because Wiest did not designate for appeal the District Court’s July 2011 Order granting Tyco’s Motion to Dismiss. When a party appeals only a specified judgment, we acquire jurisdiction to review only that judgment or a judgment “ ‘fairly inferred’ ” by the notice of appeal. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir.2010) (quoting Elf-man Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977)). Yet, we have also held that we “liberally construe[] notices of appeal.” Id. (internal quotations marks omitted). We may exercise appellate jurisdiction over orders not specified in the notice of appeal where: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Id. (internal quotation marks omitted). Here, there is an adequate connection between the District Court’s Order denying reconsideration and its underlying Order granting Tyco’s Motion to Dismiss because Wiest requested the District Court to reconsider the legal standard it applied to his Section 806 claims in the original dismissal Order. Second, because the two Orders of the District Court were intertwined, we infer that Wiest intended to appeal the underlying dismissal Order. Wiest’s intention was apparent in his principal brief, in which he argues that the District Court erred in granting Tyco’s Motion to Dismiss because it relied on the Platone standard rather than Sylvester and cites the District Court’s dismissal Order throughout the brief. Third, we find no prejudice to Tyco in reviewing the underlying dismissal Order as Tyco has had a full opportunity to brief the corresponding issues. As a result, we exercise jurisdiction over both the District Court’s November 2011 Order denying Wiest’s Motion for Reconsideration and its July 2011 Order granting Tyco’s Motion to Dismiss. Finally, we also reject Tyco’s" } ]

[ { "docid": "4167024", "title": "", "text": "that is ‘fairly traceable’ to the conduct; and (3) an injury that is likely to be redressed by a favorable decision.” Jorman v. Veterans Admin., 830 F.2d 1420, 1424 (7th Cir.1987). An injury is no longer redressable where “the parties lack a legally cognizable interest in the outcome.” Powell, 395 U.S. at 496, 89 S.Ct. at 1951. Thus, where a plaintiff has received all of the requested relief to which she is legally entitled, there is no longer the requisite ease or controversy, and the court is without jurisdiction. See Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir.1994); Harrison v. United Mine Workers of America, 941 F.2d 1190, 1193 (11th Cir.1991). The district court granted summary judgment in favor of Butler because it concluded that Ortiz had already received the compensatory damages she had requested and that the “increased burden of proof’ damages and punitive damages were not available to her as a matter of law. Ortiz has affirmatively abandoned her contention that she was entitled to the “increased burden of proof’ damages. Thus, the only remaining questions are whether she was potentially entitled to any additional compensatory damages or to any punitive damages. Ortiz raises several arguments for the proposition that she was entitled to compensatory damages over and above the lost wages and benefits that were offset by the NLRB settlement. However, Butler argues, and our review of the record confirms, that Ortiz raised these arguments for the first time on appeal. Ortiz has waived these arguments by failing to raise them before the district court, and we will not consider then-relative merit. Pozzie v. U.S. Dept. of Housing & Urban Dev., 48 F.3d 1026, 1030 n. 1 (7th Cir.1995). Ortiz raises two arguments challenging the district court’s conclusion that she was not entitled to punitive damages. First, she argues that the district court applied an incorrect standard for determining when employers may be liable for punitive damages under Title VII. Second, she argues that there was a genuine issue of material fact as to whether she was entitled to punitive damages. Citing to Hudson" } ]

[ { "docid": "11660438", "title": "", "text": "They settled their suit for an amount far greater than each could recover were the ease successfully tried to conclusion. Hence, there are no damages that the consumer plaintiffs could recover against the remaining defendant [sic]. And, because the consumer plaintiffs’ damages are quantifiable, as evidenced by their settlement, no irreparable injury is articulated even if a Clayton Act violation occurred .... The result is that the consumer plaintiffs’ claim for actual injury under the Clayton Act is rendered moot by their settlement .... Under our precedent, however, Consumer Appellants have standing to resolve § 4 antitrust claims to decide entitlement to attorneys’ fees and costs even if a settlement with one defendant means that no additional compensatory damages will be assessed. The Clayton Act provides any successful plaintiff a mandatory award of costs and attorneys’ fees. 15 U.S.C. § 15(a). Section 4 of the Clayton Act states that, “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” Id. The plaintiffs have a right under § 4 to sue for the statutorily mandated costs and reasonable attorneys’ fees even if a settlement with one defendant means that no additional compensatory damages actually will be recovered. The plaintiffs’ right to recover attorneys’ fees from the defendants depends on whether the plaintiffs can succeed in “demonstrating that the defendants] violated the antitrust laws and can establish the fact of damage.” Sciambra v. Graham News (Sciambra II), 892 F.2d 411, 415 (5th Cir.1990). The plaintiffs’ settlement with one defendant does not prevent them from recovering costs and attorneys’ fees to which they may be entitled from the remaining defendants because, by entering into a settlement agreement, “a party releases only those other parties whom he intends to release.” Zenith Radio Corp., 395 U.S. at 130-31, 89 S.Ct. 1562; see also Sciambra v. Graham News (Sciambra I), 841 F.2d 651, 656 (5th Cir.1988). This court has held that plaintiffs have" }, { "docid": "11660436", "title": "", "text": "29, 2008, Plaintiffs filed objections to the M&R, attaching two additional expert reports from Dr. Gregory Vistnes. On March 26, 2009, United States District Judge Kenneth Hoyt adopted the M&R denying class certification. Following the denial of class certification, Plaintiffs settled their claims against Stewart on June 15, 2010 (the “Stewart settlement”). In response, Defendants filed an expedited motion to strike Plaintiffs’ jury demand, which was denied by Judge Hoyt on July 13, 2010. Two days later, Plaintiffs filed an expedited motion to dismiss for lack of subject matter jurisdiction. After briefing and oral argument on August 2, 2010, the district court granted Plaintiffs’ motion on September 27, 2010. The district court determined that because of the settlement with Stewart, Plaintiffs had lost standing to continue to sue the remaining Defendants. DISCUSSION A. Subject Matter Jurisdiction When reviewing a dismissal for lack of subject matter jurisdiction, we review factual findings for clear error and legal conclusions de novo. Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.2005). Article III standing requires: (1) that Appellants have suffered an injury-in-fact; (2) a causal connection between the injury-in-fact and Appellees’ conduct; and (3)that it is likely, not merely speculative, that a favorable decision will redress the injury-in-fact. James v. City of Dallas, 254 F.3d 551, 563 (5th Cir.2001) (internal citations omitted). 1. Damages claims The record is clear that Appellants are not seeking compensatory damages beyond those agreed to in the Stewart settlement. Appellants argue, nonetheless, that the Stewart settlement did not cover the attorneys’ fees and costs available to them under § 4 of the Clayton Act in this ongoing suit against multiple Defendants other than Stewart. Appellants seek to proceed with this cause of action to prove that the remaining Defendants, Appellees herein, violated federal antitrust laws triggering Appellants’ statutory right to attorneys’ fees and costs whether or not the Consumer Appellants seek further compensatory damages. The district court held that Appellants did not have standing to recover such attorneys’ fees and costs because: Here, the consumer plaintiffs alleged overcharges by the defendants in an amount less than $22,000 each." }, { "docid": "11660478", "title": "", "text": "monetary relief in the form of mandatory attorneys' fees and costs, if an antitrust action against any Defendant is \"sustained.” Additionally, Ortiz did not involve attorneys’ fees or the Clayton Act. The Seventh Circuit determined that Ortiz was not \"entitled to compensatory damages over and above the lost wages and benefits that were offset by the NLRB settlement” because she waived her arguments by failing to raise them before the district court. Id. at 1126. . Indeed, because there has been no determination of liability with respect to the alleged antitrust violation on the part of any Appellees, a decision to the contrary would result in a windfall not negotiated for by any party. Appellees would benefit from a settlement that they had no role in and avoid any determination that they violated antitrust law even though the Stewart settlement explicitly disclaimed resolution for or against antitrust liability even as to Stewart. Further, new consumers with unsettled compensatory damages claims could begin this case anew to determine liability. . Indeed, even the concurrence observed that if one accepts that “Sciambra [was] rightly decided, then it is clear that an antitrust plaintiff can proceed to trial for a determination of liability and a potential fee award, even where prior settlements already have clearly negated any actual receipt of further damages.” Gulfstream III Associates v. Gulfstream Aerospace (Gulfstream II), 995 F.2d 425, 443 (3d Cir.1993) (Greenberg, J., concurring). Judge Greenberg cited several arguments to support his view, including that: (1) attorneys’ fees and costs are mandatory under the Clayton Act; (2) the magnitude of attorneys’ fees and costs indicate they are a \"crucial component of a plaintiff's recovery” that may exceed the compensatory damages sought; and (3) a trial merely to determine whether to award attorneys’ fees and costs will be extremely rare. Id. at 442-44. . The Appellees mistakenly rely upon the following language in Lewis: \"[t]his interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Id. at 480, 110 S.Ct. 1249 (citing Diamond," }, { "docid": "11660476", "title": "", "text": "at the class certification hearing was extensive, covering over 150 pages of the certification hearing transcript.) In contrast, the magistrate judge found “[Appellants’ expert’s] opinions [were] based on speculation and guesswork, causing his testimony to be unreliable.” The magistrate judge explained that this is why he gave “less weight to [Appellants’ expert’s] opinions.” Most tellingly, the M&R is explicit that Appellants’ expert testimony and documentary support were thoroughly considered yet were found to contain “mischaracterizations,” “overstatements,” as well as “references to surveys created by third-parties with no connection to the Funeral Home Defendants.” Regardless, a district court does “not abuse its discretion in failing to give the expert’s view more discussion or credence.” Piggly Wiggly Clarksville, Inc. v. Interstate Brands Corp., 100 Fed.Appx. 296, 299 (5th Cir.2004) (unpublished). In sum, the district court is given great discretion in certifying a class, and the district court’s adoption of the M&R in this case does not amount to an abuse of that discretion. CONCLUSION We REVERSE and REMAND the district court’s dismissal for lack of subject matter jurisdiction of the claim for attor neys’ fees and costs, AFFIRM the district court’s dismissal of Consumer Appellants’ and FCA’s injunctive relief claims for lack of subject matter jurisdiction, and AFFIRM the district court’s denial of class certification. . Service Corporation International and Alderwoods Group, Inc. merged several years after the lawsuit was filed but before the present appeal. . Although Sciambra II dominated the parties’ discussion of this issue in briefing and during the district court's hearing, the district court did not mention Sciambra II in its decision. Instead, the district court relied upon the general proposition stated by the Seventh Circuit in Ortiz v. John O. Butler Co., 94 F.3d 1121 (7th Cir.1996), that, \"where a plaintiff has received all of the requested relief to which she is legally entitled, there is no longer the requisite case or controversy, and the court is without jurisdiction.” 94 F.3d at 1125 (emphasis added). However, Appellants did not receive all of the relief they requested in this case; consistent with the Clayton Act, they requested further" }, { "docid": "11660440", "title": "", "text": "standing under analogous circumstances, “recognizing] that ... the actual recovery of compensatory damages [is] irrelevant to the recover-ability of attorneys’ fees,” Sciambra II, 892 F.2d at 413-17, and this court and other courts have recognized that a plaintiffs right to attorneys’ fees under the Clayton Act “is accorded to the injured party, not his counsel.” Carpa, Inc. v. Ward Foods, Inc., 536 F.2d 39, 52 (5th Cir.1976); accord First Iowa Hydro Elec. Coop. v. Iowa-lllinois Gas & Elec. Co., 245 F.2d 630, 632 (8th Cir.1957); Farmington Dowel Prods. Co. v. Forster Mfg. Co., 421 F.2d 61, 88 (1st Cir.1970). Thus, the plaintiffs have standing to seek costs and reasonable attorneys’ fees from the remaining defendants. We addressed whether actual recovery of compensatory damages is required for a plaintiff to recover attorneys’ fees and costs in Sciambra II, 892 F.2d at 413-14. As in the present case, the issue before us in Sciambra II was whether an antitrust plaintiff was no longer entitled to attorneys’ fees and costs after one defendant settled with the plaintiff for an amount greater than the maximum amount of compensatory damages being sought. Id. Sciambra brought an antitrust action against Graham News (“Graham”) and A.R.A. Services, Inc. (“ARA”). Id. at 413. Sciambra settled his claims against Graham but continued his suit against ARA. Id. Before trial, the district court held that ARA had abused the discovery process, entered a default judgment against ARA, ordered ARA to pay Sciambra’s attorneys’ fees and costs, and awarded damages. Id. This court rejected the district court’s method of calculating damages and remanded on the issue of damages. Sciambra I, 841 F.2d at 657-58. On remand, Sciambra conceded that his trebled lost profits were less than the Graham settlement. Sciambra II, 892 F.2d at 413. The district court awarded no damages, affirmed its prior award of attorneys’ fees and costs from the default judgment, and awarded new attorneys’ fees and costs for the appeal and the hearing on remand under § 4 of the Clayton Act. Id. ARA claimed that Sciambra could not be awarded attorneys’ fees and costs when an" }, { "docid": "11660488", "title": "", "text": "in order to certify a class. Bell Atl., 339 F.3d at 304; Blue Bird, 573 F.2d at 317; Piggly Wiggly, 100 Fed.Appx. at 297 (\"The necessity of calculating damages on an individual basis, by itself, can be grounds for not certifying a class.\"). However, a district court is not obligated to discuss or accept Appellants' expert's proffered common damages formula. See Piggly Wiggly, 100 Fed.Appx. at 299 (affirming a denial of class certification despite the plaintiffs’ complaints that the district court failed even to discuss their expert's view that class members' damages could be calculated in a straightforward manner). EDITH BROWN CLEMENT, Circuit Judge, concurring in part and dissenting in part. Although I agree with the majority holding affirming the district court’s denial of class certification, I do not agree we have jurisdiction to reach that issue. Because the plaintiffs have received all they are entitled to, this case is moot with respect to plaintiffs’ claims for statutory attorneys’ fees. As the majority correctly observes, the plaintiffs also lack standing to pursue injunctive relief. Consequently, I respectfully DISSENT from Section Al and Section B and CONCUR in Sections A2 and A3. STANDARD OF REVIEW Defendants successfully moved to dismiss in the district court due to a lack of subject-matter jurisdiction. We review the factual findings of the trial court for clear error and the legal conclusions de novo. MDPhysicians & Assocs. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir.1992). Plaintiffs are “required to prove the existence of subject-matter jurisdiction by a preponderance of the evidence.” Middle S. Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir.1986). DISCUSSION The facts and procedural history are unique and complex. Plaintiffs concede that they are no longer seeking damages but are instead seeking only statutory attorneys’ fees. At this point in the litigation, three things are abundantly clear. First, the named plaintiffs have received well over their claimed treble damages through the Stewart Settlement. Second, the only thing that can be gained in continuing this litigation is attorneys’ fees and costs, which plaintiffs’ attorneys admit will not" }, { "docid": "11660435", "title": "", "text": "overpayment for Batesville caskets and sought to enjoin Defendants’ allegedly anti-competitive conduct. The district court denied class certification and later, after Plaintiff-Appellants settled their claims with Stewart, dismissed Plaintiff-Appellants’ action against the non-settling remaining Defendant-Appellees for lack of subject matter jurisdiction. For the following reasons, we reverse and remand the dismissal of Plaintiff-Appellants’ § 4 claims for lack of subject matter jurisdiction, affirm the dismissal of Consumer Appellants’ and FCA’s action for injunctive relief for lack of subject matter jurisdiction, and affirm the denial of class certification. FACTS AND PROCEEDING FCA is a non-profit consumer rights organization devoted to advocating consumers’ right to choose a meaningful, dignified, and affordable funeral that claims 400,000 individuals as members of its national organization or its local affiliates. Consumer Appellants are eleven individuals who each purchased a Batesville casket from SCI, Alderwoods, or Stewart. No ICD is a party to this matter. On November 24, 2008, Magistrate Judge Calvin Botley recommended that the Plaintiffs’ Motion for Class Certification be denied in a 30-page Memorandum and Recommendation (“M&R”). On December 29, 2008, Plaintiffs filed objections to the M&R, attaching two additional expert reports from Dr. Gregory Vistnes. On March 26, 2009, United States District Judge Kenneth Hoyt adopted the M&R denying class certification. Following the denial of class certification, Plaintiffs settled their claims against Stewart on June 15, 2010 (the “Stewart settlement”). In response, Defendants filed an expedited motion to strike Plaintiffs’ jury demand, which was denied by Judge Hoyt on July 13, 2010. Two days later, Plaintiffs filed an expedited motion to dismiss for lack of subject matter jurisdiction. After briefing and oral argument on August 2, 2010, the district court granted Plaintiffs’ motion on September 27, 2010. The district court determined that because of the settlement with Stewart, Plaintiffs had lost standing to continue to sue the remaining Defendants. DISCUSSION A. Subject Matter Jurisdiction When reviewing a dismissal for lack of subject matter jurisdiction, we review factual findings for clear error and legal conclusions de novo. Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.2005). Article III standing requires: (1) that Appellants" }, { "docid": "11660453", "title": "", "text": "issue (mandatory attorneys’ fees and costs) is related to this injury-in-fact because the plain language and undisputed purpose of the mandatory attorneys’ fees and costs provision (to discourage potential defendants from violating antitrust laws) helps prevent the violation of the legally protected right (the violation of federal antitrust laws). Sciambra II, 892 F.2d at 416. Therefore, adhering to the law of this circuit and the Clayton Act, and in the absence of any prior attorneys’ fees and costs assessment, Consumer Appellants have standing to proceed to trial against the non-settling Defendants to attempt to prove an antitrust violation. If Consumer Appellants prove a statutory violation, then the trier of fact will determine what attorneys’ fees, costs, and any exact compensatory damages amount would be awarded. 2. Injunctive relief To have standing to sue for injunctive relief, a party must: (1) have suffered an injury-in-fact; (2) establish a causal connection between the injury-in-fact and a complained-against defendant’s conduct; (3) show that it is likely, not merely speculative, that a favorable decision will redress the injury-in-fact; and (4) “demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.” James, 254 F.3d at 563 (internal citations omitted); Soc’y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.1992); see also City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 5.Ct. 1660, 75 L.Ed.2d 675 (1983). The threat of injury must be “concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical .... ” Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (internal citations omitted). The district court determined Consumer Appellants did not have standing to sue for injunctive relief because they could not “establish an irreparable injury or a future threat.” Specifically, the district court concluded that (1) any harm would be reparable by a monetary award, like the Stewart settlement, and (2) based on the particular allegations here, the chance of one of the Consumer Appellants purchasing another Batesville casket or his or her family purchasing a Batesville casket upon the" }, { "docid": "11660477", "title": "", "text": "jurisdiction of the claim for attor neys’ fees and costs, AFFIRM the district court’s dismissal of Consumer Appellants’ and FCA’s injunctive relief claims for lack of subject matter jurisdiction, and AFFIRM the district court’s denial of class certification. . Service Corporation International and Alderwoods Group, Inc. merged several years after the lawsuit was filed but before the present appeal. . Although Sciambra II dominated the parties’ discussion of this issue in briefing and during the district court's hearing, the district court did not mention Sciambra II in its decision. Instead, the district court relied upon the general proposition stated by the Seventh Circuit in Ortiz v. John O. Butler Co., 94 F.3d 1121 (7th Cir.1996), that, \"where a plaintiff has received all of the requested relief to which she is legally entitled, there is no longer the requisite case or controversy, and the court is without jurisdiction.” 94 F.3d at 1125 (emphasis added). However, Appellants did not receive all of the relief they requested in this case; consistent with the Clayton Act, they requested further monetary relief in the form of mandatory attorneys' fees and costs, if an antitrust action against any Defendant is \"sustained.” Additionally, Ortiz did not involve attorneys’ fees or the Clayton Act. The Seventh Circuit determined that Ortiz was not \"entitled to compensatory damages over and above the lost wages and benefits that were offset by the NLRB settlement” because she waived her arguments by failing to raise them before the district court. Id. at 1126. . Indeed, because there has been no determination of liability with respect to the alleged antitrust violation on the part of any Appellees, a decision to the contrary would result in a windfall not negotiated for by any party. Appellees would benefit from a settlement that they had no role in and avoid any determination that they violated antitrust law even though the Stewart settlement explicitly disclaimed resolution for or against antitrust liability even as to Stewart. Further, new consumers with unsettled compensatory damages claims could begin this case anew to determine liability. . Indeed, even the concurrence observed that" }, { "docid": "11660434", "title": "", "text": "HIGGINSON, Circuit Judge: Plaintiffs-Appellants, the Funeral Consumers Alliance, Inc. (“FCA”) and eleven consumers (“Consumer Appellants”), brought a class action suit under § 4 of the Clayton Act, 15 U.S.C. § 15, against the largest United States casket manufacturer, Batesville Casket Company, and its owner Hillenbrand Industries, Inc. (collectively, “Batesville”); and against the three largest United States funeral home chains and distributors of Batesville caskets, Service Corporation International (“SCI”), Aider-woods Group, Inc. (“Alderwoods”), and Stewart Enterprises, Inc. (“Stewart”). Plaintiff-Appellants alleged that Defendant-Appellees conspired to foreclose competition from independent casket discounters (“ICDs”) who sold caskets directly to consumers at discounted prices and maintained artificially high consumer casket prices in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, by engaging in a group boycott to prevent ICDs from selling Batesville caskets and dissuading consumers from purchasing caskets from ICDs. Plaintiff-Appellants also alleged that Defendant-Appellees used concerted efforts to restrict casket price competition, including coordinating prices, limiting the advertisement of pricing, and engaging in sham discounting. Plaintiff-Appellants sought damages to remedy the overpayment for Batesville caskets and sought to enjoin Defendants’ allegedly anti-competitive conduct. The district court denied class certification and later, after Plaintiff-Appellants settled their claims with Stewart, dismissed Plaintiff-Appellants’ action against the non-settling remaining Defendant-Appellees for lack of subject matter jurisdiction. For the following reasons, we reverse and remand the dismissal of Plaintiff-Appellants’ § 4 claims for lack of subject matter jurisdiction, affirm the dismissal of Consumer Appellants’ and FCA’s action for injunctive relief for lack of subject matter jurisdiction, and affirm the denial of class certification. FACTS AND PROCEEDING FCA is a non-profit consumer rights organization devoted to advocating consumers’ right to choose a meaningful, dignified, and affordable funeral that claims 400,000 individuals as members of its national organization or its local affiliates. Consumer Appellants are eleven individuals who each purchased a Batesville casket from SCI, Alderwoods, or Stewart. No ICD is a party to this matter. On November 24, 2008, Magistrate Judge Calvin Botley recommended that the Plaintiffs’ Motion for Class Certification be denied in a 30-page Memorandum and Recommendation (“M&R”). On December" }, { "docid": "11660442", "title": "", "text": "earlier settlement offset all compensatory damages. Id. at 413-14. We rejected that argument, writing that, “if a plaintiff can prove an antitrust violation and the fact of damage, the plaintiff is entitled to recover attorneys’ fees pursuant to section 4.” Id. at 415. “Our holding merely recognizes that the structure of section 4 and the fact of damage analysis make the actual recovery of compensatory damages irrelevant to the recoverability of attorneys’ fees.” Id. at 415-16. We reiterated that the effect of a settlement on the plaintiffs recovery of compensatory damages has no effect on a plaintiffs right to recover attorneys’ fees. Id. at 416. This analysis remains persuasive, is consistent with Congress’s statutory decision enacting the Clayton Act, and governs our case above all when a settlement, however generous and comprehensive, is with one but not all defendants. Appellees argue that our holding in Sciambra II does not apply to the present case because it is factually distinguishable. The default judgment against Graham News established the existence of an antitrust violation and the fact of damage before the district court determined that the Graham settlement precluded a compensatory damage award. Id. Appellees point to a sentence of ours in Sciambra II to support their contention that this factual discrepancy distinguishes Sciambra II from the present case: [i]n a case such as this where, as the previous panel noted, the amount of potential damages was unclear when suit was instituted, ... an antitrust defendant that causes injury should not be spared liability for attorneys’ fees simply because a previous settlement turns out in retrospect to preclude a compensatory damage award. Id. at 416-17. To be sure, unlike Sciambra II, antitrust liability has never been ascertained in this case. The Stewart settlement explicitly stated that no liability was being admitted by Stewart, and no liability determination was made by the district court. The settlement and subsequent stipulated dismissal of plaintiffs’ claims against Stewart with prejudice precludes a liability finding, and hence, any further recovery from Stewart. However, as to the remaining Defendants, Appellees herein, Sciambra II’s logic applies for the narrow," }, { "docid": "243093", "title": "", "text": "class certification would be granted under Rule 23(b)(2) which requires some action by the party opposing the class which makes \"appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Id. at 78-79. Although a class action certified under Rule 23(b)(2) may include actions which seek monetary damages, this subsection generally does not extend to causes of action where the appropriate final relief relates exclusively or predominately to money damages. Thus, the court refused to certify the damage issue under this category of class action. The court also ruled that damages were not warranted when the debtor voluntarily made repayments pursuant to the reaffirmation agreement even though the agreement was invalid. Id. at 71. Thus, although Wiley states that it lacked jurisdiction, that court found several alternative grounds for denying the damages requested on behalf of the class. . Ironically, in the District Court proceeding the posture of the parties was reversed in that the Debtor sought to have the case remain before Judge Lindberg and raised the argument that the bankruptcy court might not have jurisdiction over this matter while Providian sought referral and argued that bankruptcy courts can hear class actions and that automatic stay violations are core issues. See various briefs filed with District Court regarding motion to dismiss or for referral. . The Debtor alleges that she suffered damages in the form of emotional distress caused by the receipt of Providian’s letter. This is the only damage the Debtor claims and she readily admits that she has not incurred any out-of-pocket loss or attorney's fees in connection with this matter. She also admits that she did not seek treatment or counseling in any form for this distress. . The Debtor filed a motion for certification of the class before the District Court. Providian filed a memorandum of law objecting to this motion on numerous grounds. These pleadings, along with all other pending matters, were referred to this Court by the District Court. . The Seventh Circuit has recognized that nu-merosity issues ordinarily can be corrected and resolved as the case" }, { "docid": "11660450", "title": "", "text": "fees and costs. In contrast, Appellants are eligible for mandatory fees and costs under the Clayton Act if their antitrust claims are proven valid. Again, under § 4 of the Clayton Act, attorneys’ fees and costs are not left to the discretion of the judge. They are part of a tripartite award Congress has mandated for plaintiffs to encourage private enforcement of antitrust actions. Attorneys’ fees and costs are awarded even if an otherwise successful plaintiff is awarded no compensatory damages by the jury. Ducote Jax Holdings LLC v. Bradley, 335 Fed.Appx. 392, 402 (5th Cir.2009) (unpublished) (citing Sciambra II, 892 F.2d at 414-16). The award is mandatory and not limited to merely litigation costs. In Lewis, the plaintiff secured an injunction and declaration that a Florida banking law violated the Commerce Clause and then brought a separate statutory claim for attorneys’ fees under 42 U.S.C. § 1988, contending that it had prevailed on its 42 U.S.C. § 1983 claim because the state’s prior enforcement of the law deprived the plaintiff of its constitutional rights. 494 U.S. at 474-76, 110 S.Ct. 1249. Section 1988 allows courts, again, in their discretion, to grant parties who prevail on certain federal claims to obtain attorneys’ fees as part of their costs. The Supreme Court held that the plaintiff was no longer a “prevailing party” and, thus, no longer entitled to attorneys’ fees because the underlying § 1983 claim became moot on appeal. Id. at 476, 483, 110 S.Ct. 1249. Here, the Stewart settlement only resulted in the dismissal with prejudice of-Appellants’ antitrust claims against Stewrart, not as against Appellees. Second, the Appellants’ entitlement to attorneys’ fees is not discretionary if they prevail; it is a statutory mandate. And third, unlike the plaintiff in Lewis, Appellants in this case have not yet had assessed and received the full amount that could be due to them under § 4 of the Clayton Act. See also Church of Scientology of Cal. v. United States, 506 U.S. 9, 12-13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (“[A] court does have power to effectuate a partial remedy ...." }, { "docid": "11660443", "title": "", "text": "of damage before the district court determined that the Graham settlement precluded a compensatory damage award. Id. Appellees point to a sentence of ours in Sciambra II to support their contention that this factual discrepancy distinguishes Sciambra II from the present case: [i]n a case such as this where, as the previous panel noted, the amount of potential damages was unclear when suit was instituted, ... an antitrust defendant that causes injury should not be spared liability for attorneys’ fees simply because a previous settlement turns out in retrospect to preclude a compensatory damage award. Id. at 416-17. To be sure, unlike Sciambra II, antitrust liability has never been ascertained in this case. The Stewart settlement explicitly stated that no liability was being admitted by Stewart, and no liability determination was made by the district court. The settlement and subsequent stipulated dismissal of plaintiffs’ claims against Stewart with prejudice precludes a liability finding, and hence, any further recovery from Stewart. However, as to the remaining Defendants, Appellees herein, Sciambra II’s logic applies for the narrow, but decisive, reason that no clear amount or allocation of attorneys’ fees and costs was assessed. Hence, these Defendants should not be spared liability for such fees if the antitrust charges against them are sustained. The total amount potentially due to the Consumer Appellants remains unclear because the record contains disputed issues of fact as to the amount of attorneys’ fees and costs associated with this litigation. Monetary damages under § 4 of the Clayton Act include compensatory damages, attorneys’ fees, and costs, not, as Appellees claim, merely compensatory damages. Again, our reasoning in Sciambra II validated Congress’s imperative in § 4 for mandatory attorneys’ fees and costs. These attorneys’ fees and costs are mandatory, Congress decided, in order to encourage individuals to bring suits to enforce the antitrust laws and to discourage potential defendants from violating antitrust laws. Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 129 & n. 6, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31, 89 S.Ct. 1562," }, { "docid": "11660452", "title": "", "text": "The availability of this possible remedy is sufficient to prevent this case 'from being moot.”). Finally, in Vermont Agency, the defendant challenged the standing of a qui tam relator to bring suit. 529 U.S. at 771-72, 120 S.Ct. 1858. The Supreme Court held that, “[a]n interest unrelated to injury in fact is insufficient to give a plaintiff standing. The interest must consist of obtaining compensation for, or preventing, the violation of a legally protected right.” Id. at 772-73, 120 S.Ct. 1858 (internal citations omitted). The qui tam relator had not suffered an invasion of any right; he was suing on behalf of the United States for a violation of one of its rights. Id.' at 773, 120 S.Ct. 1858. As a result, he was suing for a mere “byproduct” of the suit that would not materialize until the relator prevailed at the end of litigation. Id. In the present case, Appellants have alleged that they directly have suffered an invasion of their right to be free from violations of federal antitrust laws. The interest at issue (mandatory attorneys’ fees and costs) is related to this injury-in-fact because the plain language and undisputed purpose of the mandatory attorneys’ fees and costs provision (to discourage potential defendants from violating antitrust laws) helps prevent the violation of the legally protected right (the violation of federal antitrust laws). Sciambra II, 892 F.2d at 416. Therefore, adhering to the law of this circuit and the Clayton Act, and in the absence of any prior attorneys’ fees and costs assessment, Consumer Appellants have standing to proceed to trial against the non-settling Defendants to attempt to prove an antitrust violation. If Consumer Appellants prove a statutory violation, then the trier of fact will determine what attorneys’ fees, costs, and any exact compensatory damages amount would be awarded. 2. Injunctive relief To have standing to sue for injunctive relief, a party must: (1) have suffered an injury-in-fact; (2) establish a causal connection between the injury-in-fact and a complained-against defendant’s conduct; (3) show that it is likely, not merely speculative, that a favorable decision will redress the injury-in-fact; and" }, { "docid": "11660479", "title": "", "text": "if one accepts that “Sciambra [was] rightly decided, then it is clear that an antitrust plaintiff can proceed to trial for a determination of liability and a potential fee award, even where prior settlements already have clearly negated any actual receipt of further damages.” Gulfstream III Associates v. Gulfstream Aerospace (Gulfstream II), 995 F.2d 425, 443 (3d Cir.1993) (Greenberg, J., concurring). Judge Greenberg cited several arguments to support his view, including that: (1) attorneys’ fees and costs are mandatory under the Clayton Act; (2) the magnitude of attorneys’ fees and costs indicate they are a \"crucial component of a plaintiff's recovery” that may exceed the compensatory damages sought; and (3) a trial merely to determine whether to award attorneys’ fees and costs will be extremely rare. Id. at 442-44. . The Appellees mistakenly rely upon the following language in Lewis: \"[t]his interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Id. at 480, 110 S.Ct. 1249 (citing Diamond, v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). Both Lewis and Diamond sire distinguishable from our case. Diamond sought to defend the constitutionality of part of an Illinois abortion law based on his personal objection to abortions and his status as a pediatrician and as a parent of an unemancipated minor daughter. 476-U.S. at 56-58, 106 S.Ct. 1697. He appealed the Seventh Circuit’s grant of a permanent injunction after the State of Illinois chose not to appeal. Id. at 61, 106 S.Ct. 1697. Because Diamond had no judicially cognizable interest in the statute’s defense, the Supreme Court dismissed for want of jurisdiction. Id. at 56, 106 S.Ct. 1697. The Court held that Diamond did not have standing to appeal simply because the district court had assessed the plaintiffs attorneys’ fees against him under § 1988 and he would have to pay those fees unless the State’s regulations were reinstated on appeal. Id. at 69-70, 106 S.Ct. 1697. It was not the case that Diamond \" personally has suffered some actual" }, { "docid": "13467175", "title": "", "text": "damages sufficient to be entitled to attorneys’ fees. The district court rejected any analogy to permissive fee awards, and held that “the jury’s finding of injury and an antitrust violation precludes the NFL’s arguments that the USFL was not a prevailing party under Section 4 of the Clayton Act.... A reasonable fee award under the statute is mandatory.” 704 F.Supp. at 480. The court awarded the USFL attorneys’ fees of $5,515,290.81. Id. at 488. The court of appeals affirmed the fee award in its entirety. 887 F.2d 408 (2d Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990). Even granting that a nominal damages award can support Clayton Act attorneys’ fees, would a plaintiff whose entire damages are offset by prior settlement, and who therefore receives zero damages as a result of the trial, still be entitled to attorneys’ fees? The Court of Appeals for the Fifth Circuit answered that precise question affirmatively in Sciambra v. Graham News, 892 F.2d 411 (1990). In Scimnbra, the district court had entered a default judgment against one remaining defendant because of discovery abuse. (A second defendant had settled previously for $165,000.) A damages judgment was entered for $271,896.00, but was reversed because the district court had applied an incorrect measure of damages. On remand, the plaintiff conceded that his damages according to the proper measure would be less than the amount of the prior settlement. The district court therefore awarded no damages, but did enter judgment for over $90,000 in attorneys’ fees and costs. In affirming the award, the court of appeals found that in an antitrust case, an attorneys’ fee award should not necessarily be dependent on a compensatory damages award: “the effect of the [prior] settlement on [plaintiffs] recovery of compensatory damages has no effect on [plaintiffs] right to recover attorneys’ fees.” Id. at 416. So long as plaintiff has established an antitrust violation and injury therefrom, the court concluded, an award of attorneys’ fees is mandatory. That result, the court noted, was consistent with the established policies of encouraging private prosecution of antitrust violations and deterring" }, { "docid": "11660441", "title": "", "text": "an amount greater than the maximum amount of compensatory damages being sought. Id. Sciambra brought an antitrust action against Graham News (“Graham”) and A.R.A. Services, Inc. (“ARA”). Id. at 413. Sciambra settled his claims against Graham but continued his suit against ARA. Id. Before trial, the district court held that ARA had abused the discovery process, entered a default judgment against ARA, ordered ARA to pay Sciambra’s attorneys’ fees and costs, and awarded damages. Id. This court rejected the district court’s method of calculating damages and remanded on the issue of damages. Sciambra I, 841 F.2d at 657-58. On remand, Sciambra conceded that his trebled lost profits were less than the Graham settlement. Sciambra II, 892 F.2d at 413. The district court awarded no damages, affirmed its prior award of attorneys’ fees and costs from the default judgment, and awarded new attorneys’ fees and costs for the appeal and the hearing on remand under § 4 of the Clayton Act. Id. ARA claimed that Sciambra could not be awarded attorneys’ fees and costs when an earlier settlement offset all compensatory damages. Id. at 413-14. We rejected that argument, writing that, “if a plaintiff can prove an antitrust violation and the fact of damage, the plaintiff is entitled to recover attorneys’ fees pursuant to section 4.” Id. at 415. “Our holding merely recognizes that the structure of section 4 and the fact of damage analysis make the actual recovery of compensatory damages irrelevant to the recoverability of attorneys’ fees.” Id. at 415-16. We reiterated that the effect of a settlement on the plaintiffs recovery of compensatory damages has no effect on a plaintiffs right to recover attorneys’ fees. Id. at 416. This analysis remains persuasive, is consistent with Congress’s statutory decision enacting the Clayton Act, and governs our case above all when a settlement, however generous and comprehensive, is with one but not all defendants. Appellees argue that our holding in Sciambra II does not apply to the present case because it is factually distinguishable. The default judgment against Graham News established the existence of an antitrust violation and the fact" }, { "docid": "20399902", "title": "", "text": "because the settlement offers did not offer full relief. See id. Each of the Appellants requested that the district court enter judgment in his or her favor and against an Appellee as part of the prayer for relief in the complaint. Appellees’ settlement offers, however, did not offer to have judgment entered against them. Because the settlement offers were not for the full relief requested, a live controversy remained over the issue of a judgment, and the cases were not moot. See Friends of Everglades, 570 F.3d at 1216. A judgment is important to Appellants because the district court can enforce it. Instead, with no offer of judgment accompanying Appellees’ settlement offers, Appellants were left with a mere promise to pay. If Appellees did not pay, Appellants faced the prospect of filing a breach of contract suit in state court with its attendant filing fees — resulting in two lawsuits instead of just one. III. CONCLUSION We hold the failure of Appellees to offer judgment prevented the mooting of Appellants’ FDCPA claims. The district court erred in concluding Appellees’ offers of settlement were for full relief such that Appellants’ cases were mooted. We reverse the district court’s dismissal of Appellants’ claims for lack of subject matter jurisdiction, and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. . Upon Appellants’ motion, we consolidated the three cases. . Appellees are ER Solutions, Inc., ARS National Services, Inc., and Collection Information Bureau, Inc. . \"A debt collector can be held liable for an individual plaintiffs actual damages, statutory damages up to $1,000, costs, and reasonable attorney’s fees.” Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352 (11th Cir.2009) (citing 15 U.S.C. § 1692k(a)(1)-(3)). . Zinni also alleged ER Solutions violated the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §§ 559.55-559.785. ER Solutions offered to settle Zinni's FCCPA claim for $1,001, plus reasonable attorneys' fees and costs. The district court declined to exercise supplemental jurisdiction over this issue. .In its brief, ER Solutions asserts \"[wjhile not a part of the record, ER Solutions notifies the Court that it tendered" }, { "docid": "11660446", "title": "", "text": "first to the plaintiff as part of his recovery in accordance with the language of section 4. If he chooses to pass that money on to his attorneys, that is his business.” (emphasis added))); First Iowa, 245 F.2d at 632 (“The provisions of the Clayton Act (15 U.S.C.A. § 15) provide[] for recovery of an attorney fee in addition to treble damages but the right accrues to the party injured and not to his attorney.” (citations omitted)); see also IIA Phillip E. Areeda et al, Antitrust Law ¶ 330e, at 46-47 (3d ed. 2007) (explaining that the Clayton Act “makes clear that the plaintiff, not the attorney, is entitled to recover the attorneys’ fees and costs”). Additionally, a ruling to the contrary would discourage plaintiffs from making early settlements with some but not all defendants because a settlement could later operate to preclude full recovery of fees and costs pursuant to the Clayton Act. Gulfstream III Associates v. Gulfstream Aerospace (Gulfstream I), 995 F.2d 414, 419 (3d Cir.1993) (applying Sciambra IP). This court and other courts have recognized that another of “the purposes of section 4’s attorneys’ fees awards” is to “encourage[ ] private prosecution of antitrust violations by insulating plaintiffs’ treble damage recoveries from the expense of legal fees.” Sciambra II, 892 F.2d at 416 (quoting Home Placement Serv. v. Providence Journal Co., 819 F.2d 1199, 1210 (1st Cir.1987) (internal quotation marks omitted) (citing U.S. Football League, 887 F.2d at 412; Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291, 1312 (9th Cir.1982))). Appellants made it clear that they would not have settled with Stewart if they had known there was a possibility that the settlement would “have forfeited their right to seek mandatory costs and fees.” The Third Circuit, in addition to highlighting the statutory priority of encouraging private parties to settle, pointed out that, “[a]lthough in almost all cases an award of compensatory damages will accompany an award of Section 4 attorneys’ fees, the latter is not dependent upon the former---- Any other, holding would not only deter the private prosecution of antitrust" } ]

[ { "docid": "13343779", "title": "", "text": "since the reasons were not specified, could the plaintiff determine whether the reason for rejection was academic or disciplinary. In Hatley, supra, the member’s horse was not registered as a quarter horse for having excessive white on its body. The court felt the plaintiff should have had an opportunity to respond to that ruling. However, the association in its bylaws had provisions for a discretionary hearing in certain cases. The court determined that plaintiff’s case fit that category. Thus, he should have had a hearing according to the by-laws. In the present case, there has been no suggestion that the bylaws required a hearing on the decision. Academic decisions do not require hearings, see Board of Curators, supra; Mahavongsanan, supra; Gaspar, supra, although the student must at least be advised of his or her deficiencies, see Gaspar, supra, 513 F.2d at 851. (In Board of Curators, the Court did not decide whether the student had to be warned but the fact that she was was important for the majority, 435 U.S. at 85, 98 S.Ct. 948, and Justice Powell, 435 U.S. at 93, 98 S.Ct. at 956 (concurring opinion)). Michigan law is scant. Two cases have been cited dealing with students failing medical school examinations. The Michigan Supreme Court, in a brief opinion, rejected one student’s claims that the school’s refusal to graduate him despite his failing the national board examinations deprived him of a contractual right and his claim that the school had unlawfully delegated its duties to the national board of examiners. See In re Johnston, 365 Mich. 509, 114 N.W.2d 255 (1962). The Michigan Court of Appeals considered whether the refusal to pass a Wayne State University medical student from the second to the third year was arbitrary and capricious. See Maitland v. Wayne State University, 76 Mich.App. 631, 257 N.W.2d 195 (1977). The court said its review was limited to determining if the evidence supported the trial court’s decision that the school acted arbitrarily and unreasonably. During the examination, the wrong part of the exam was passed out to some of the students (although not to" } ]

[ { "docid": "7233994", "title": "", "text": "Research, Inc. v. College of American Pathologists, 170 F.3d 53 (1st Cir.1999), an antitrust case, which states: The governing precept ... is that while the plaintiffs “facts” must be accepted as alleged, this does not automatically extend to “[b]ald assertions, subjective characterizations, and legal conclusions ... The factual allegations must be specific enough to justify ‘drag[ging] a defendant past the pleading threshold.’ ” DM Research, 170 F.3d at 55 (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988)) (citation omitted) (alterations in original). Analysis I. Common law counterclaims Savannah College alleges five common law counterclaims: (1) breach of contract; (2) violation of common law procedural due process; (3) violation of common law substantive due process; (4) breach of fiduciary duty; and (5) fraud. Courts that have considered common law claims as part of a dispute over denial of accreditation have uniformly held that decisions by accrediting bodies should be analyzed as administrative decisions rather than as traditional common law claims. For example, in Chicago School of Automatic Transmissions, Inc. v. Accreditation Alliance of Career Schools and Colleges, 44 F.3d 447 (7th Cir.1994), a case cited in this Court’s Opinion of December 21, 1998, the plaintiff, Chicago School of Automatic Transmissions, argued that the denial of accreditation by defendant was a breach of contract under Illinois law. However, the Seventh Circuit rejected the application of state law, noting that “accrediting bodies are not engaged in commercial transactions for which state-law contract principles are natural matches.” Chicago School, 44 F.3d at 449. The Seventh Circuit instead concluded, after citing many of the decisions cited by this Court in its Opinion of December 21, 1998, “that principles of federal administrative law supply the right perspective for review of accrediting agencies’ decisions.” Id. at 450 (noting that “administrative law entails deferential review, while courts applying contract law do not defer to either of the contracting parties’ views”). A similar conclusion was reached in Dietz v. American Dental Association, 479 F.Supp. 554 (E.D.Mich.1979), another case cited in this Court’s opinion of December 21, 1998. In Dietz, the plaintiff sued for breach of" }, { "docid": "13343782", "title": "", "text": "the preferred remedy would be to remand to the school for a determination of whether the student was qualified to pass to the next year. This court has not found any other Michigan cases dealing with either educational institutions or professional associations. But the Michigan Court of Appeals, which noted the issue was one of first impression, indicated it would follow the general trend discussed above. This court concludes that Michigan would defer to the judgment of a professional association concerning an applicant’s competence provided the decision is not based on arbitrary, capricious, or discriminatory grounds. The present case does not involve a disciplinary proceeding: plaintiff was not rejected for failing to conform with rules and regulations. Plaintiff was rejected be- ' cause he allegedly was not qualified. Such an academic decision must be deferred to the Board unless the Board acted arbitrarily and capriciously. Thus, unless a genuine issue of fact exists that the Board acted arbitrarily, capriciously, or discriminatorily, defendants’ motion for summary judgment must be granted. Plaintiff’s first claim is that oral exams are inherently unfair and the use of such exams without proper controls is arbitrary. Plaintiff does not give any evidence that the proper controls were lacking in this case. The mere fact that no record was kept of the questions asked does not mean the exams were improperly controlled. Plaintiff cites literature in the educational testing field to support his position, but no case had held the use of oral examinations to be inherently unfair. In Board of Curators, supra, the plaintiff was given a set of oral and written exams as part of her “appeal.” Far from finding anything wrong with this procedure, the Court held she received more than enough due process. In Johnston, supra, the court did not consider whether or not the use of oral examinations was arbitrary. Maitland, supra, apparently involved only written exams. The use of oral examinations would seem to be within the discretion of the Board and beyond the competence of this court to decide. In order to know whether or not the oral exam is" }, { "docid": "7233998", "title": "", "text": "the cases applying the deferential standard of review to common law claims arising out of a denial of accreditation have involved a fraud claim. The Court is not persuaded that the enhanced pleading requirement for a fraud claim offers any basis for treating the fraud claim differently from Savannah College’s other common law claims, considering that the cases are clear “that principles of federal administrative law supply the right perspective for review of accrediting agencies’ decisions.” Chicago School, 44 F.3d at 450 (applying arbitrary or unreasonable test to all common law claims complaining of denial of accreditation). The fact that the cases dealing with common law claims arising out of a denial of accreditation have not involved an allegation of fraud by the school denied accreditation does not lead to a different result in light of this Court’s prior ruling. Savannah College’s fraud claim essentially alleges that: (1) it was the victim of disparate treatment by FIDER, in that it was denied accreditation while other schools were granted accreditation despite noncompliance with several of the Student Achievement Standards; and (2) it did not receive a meaningful appeal when it filed its appeal with the FIDER Board of Appeals because the FIDER Board of Trustees made the final decision regarding Savannah College’s accreditation. (See 1st Am.Countercl. ¶¶ 137-145.) However, the Court already concluded in its December 21, 1998, Opinion that FIDER cannot maintain a disparate treatment claim. See FIDER, 39 F.Supp.2d at 898-99. The Court also concluded that FIDER followed its own procedures in denying Savannah College accreditation, and that FIDER’s procedures clearly indicate that the Board of Trustees, not the Board of Appeals, makes the final decision about accreditation. See id. at 892, 896-97. Accordingly, the Court concludes that Savannah College’s fraud claim merely repackages its previous claim that accreditation was wrongfully denied in an attempt to avoid the deferential standard of review uniformly applied to the review of accreditation decisions. Therefore, Savannah College’s fraud claim will also be dismissed. II. Antitrust counterclaim Savannah College also alleges that FID-ER has unreasonably restrained trade in violation of Section 1 of the" }, { "docid": "7233997", "title": "", "text": "is precluded by this Court’s prior determination that FID-ER followed its own procedures in denying Savannah College accreditation, that those procedures were fair and impartial, that FIDER’s decision was supported by substantial evidence in the record, and that FIDER did not otherwise act in an arbitrary, capricious, or wrongful manner. The Court concludes that allowing Savannah College to proceed with these counterclaims would sanction form over substance, allowing artful pleading to avoid the deferential standard of review uniformly applied to the review of accreditation decisions. Accordingly, Savannah College’s breach of contract, breach of fiduciary duty, violation of common law procedural due process, and violation of common law substantive due process claims will be dismissed. Savannah College argues that its fraud claim must be treated differently from these other common law counterclaims for two reasons: (1) in order to state a fraud claim, Savannah College must meet the heightened pleading requirements of Fed. R.Civ.P. 9(b), which provides adequate protection for FIDER and distinguishes the fraud claim from the other common law claims; and (2) none of the cases applying the deferential standard of review to common law claims arising out of a denial of accreditation have involved a fraud claim. The Court is not persuaded that the enhanced pleading requirement for a fraud claim offers any basis for treating the fraud claim differently from Savannah College’s other common law claims, considering that the cases are clear “that principles of federal administrative law supply the right perspective for review of accrediting agencies’ decisions.” Chicago School, 44 F.3d at 450 (applying arbitrary or unreasonable test to all common law claims complaining of denial of accreditation). The fact that the cases dealing with common law claims arising out of a denial of accreditation have not involved an allegation of fraud by the school denied accreditation does not lead to a different result in light of this Court’s prior ruling. Savannah College’s fraud claim essentially alleges that: (1) it was the victim of disparate treatment by FIDER, in that it was denied accreditation while other schools were granted accreditation despite noncompliance with several of the" }, { "docid": "23601421", "title": "", "text": "BAZELON, Chief Judge: Middle States Association of Colleges and Secondary Schools, Inc., is a voluntary nonprofit educational corporation, the successor to an unincorporated association of the same name established in 1887. Its general purposes are to aid and encourage the development of quality in secondary schools and institutions of higher education located within its geographical domain (New York, New Jersey, Pennsylvania, Delaware, Maryland, and the District of Columbia) or outside of the continental United States. Chief among its activities is that of accrediting member institutions and applicants for membership. Marjorie Webster Junior College, Inc., is a proprietary junior college for women located in the District of Columbia. In 1966, it applied to Middle States for accreditation. Relying upon a policy statement of the Federation of Regional Accrediting Commissions of Higher Education, and upon its own past practice, Middle States refused to consider Marjorie Webster for accreditation because the latter was not “a nonprofit organization with a governing board representing the public interest.” Following this refusal, Marjorie Webster brought suit to compel its consideration for accreditation without regard to its proprietary character. The District Court found Middle States’ refusal to consider proprietary institutions of higher education for accreditation a violation of § 3 of the Sherman Act and of the developing common law regarding exclusion from membership in private associations; in addition, it found that Middle States’ activities in the field of accreditation were sufficiently under the aegis of the Federal Government as to make applicable the limitations of the Due Process Clause; and that to deny accreditation to all proprietary institutions solely by reason of their proprietary character was arbitrary and unreasonable, in violation of the Fifth Amendment. Concluding, finally, that continued denial of consideration for accreditation would result in irreparable injury to Marjorie Webster, the District Court enjoined Middle States from denying Marjorie Webster accreditation solely because of its proprietary character, and ordered it to accredit Marjorie Webster if it should otherwise qualify for accreditation under Middle States’ standards. On the application of Middle States, we stayed the District Court’s order pending our determination of this appeal. For the" }, { "docid": "13343776", "title": "", "text": "Davidson v. Youngstown Hospital Association, 19 Ohio Ap6p.2d 246, 250, 250 N.E.2d 892, 48 Ohio Op.2d 371 (1969); Woodard v. Porter Hospital, Inc., 125 Vt. 419, 217 A.2d 37, 40 (1966). But see Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir. 1959), cert. denied, 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (no cause of action under Arkansas law for denial of membership). What will constitute a fair procedure depends on what kind of decision is being made. The Supreme Court in Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978), distinguished between a disciplinary proceeding and an academic proceeding. The plaintiff in that case was a student who was dismissed from medical school for failure to meet academic standards. She argued she should have had notice and a hearing so she could respond to the charges. The Court held that a hearing was not necessary and that she had had more process than was due — she was warned of her clinical deficiencies; she took a set of oral and practical exams as an “appeal”; and she was evaluated by seven independent practicing physicians who spent considerable time with her. The Court noted that since an academic decision regarding a student’s competence is to a large extent subjective and evaluative, such a decision is not readily adapted to judicial or administrative decisionmaking. See also Mahavongsanan v. Hall, 529 F.2d 448, 449 (5th Cir. 1976). Where an academic decision of an educational institution is involved, courts will defer to the judgment of the school so long as the reasons for the decision are not discriminatory, arbitrary, or capricious. See Mahavongsanan, supra; Gaspar v. Bruton, 513 F.2d 843, 850 (10th Cir. 1975). Likewise, courts defer to a professional association when it determines the competence of a member as long as the reasons for the decision are not arbitrary, capricious, or discriminatory. See Marjorie Webster, supra; McCreery Angus Farms, supra, 379 F.Supp. at 1010; Blende, supra, 393 P.2d at 929-30; Silver v. Castle Memorial Hospital, 53 Hawaii 563," }, { "docid": "14355517", "title": "", "text": "from the above rule. See Golden Star of Honor v. Worrell, 158 Ga. 309, 123 S.E. 106 (1924); Hoey v. San Antonio Real Estate Bd., Inc., 297 S.W.2d 214, 217 (Tex.Civ.App.—San Antonio 1956, no writ). Therefore, we need not determine whether we should apply Georgia or Texas law rather than the rule adopted by a number of federal courts. In reviewing an accrediting association’s decision to withdraw a member’s accreditation, the courts have accorded the association’s determination great deference. Medical Inst. of Minnesota, 817 F.2d at 1314; Marjorie Webster Junior College, Inc. v. Middle States Ass’n of Colleges and Secondary Sch., 432 F.2d 650, 657 (D.C.Cir.), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970). Courts give accrediting associations such deference because of the professional judgment these associations must necessarily employ in making accreditation decisions. In considering the substance of accrediting agencies’ rules, courts have recognized that “[t]he standards of accreditation are not guides for the layman but for professionals in the field of education.” Parsons College v. North Cent. Ass’n of College and Secondary Sch., 271 F.Supp. 65, 73 (N.D.Ill.1967). Consequently, courts are not free to conduct a de novo review or to substitute their judgment for the professional judgment of the educators involved in the accreditation process. Medical Inst. of Minnesota, 817 F.2d at 1315; Rockland Inst., 412 F.Supp. at 1019. Instead, courts focus primarily on whether the accrediting body’s internal rules provide a fair and impartial procedure and whether it has followed its rules in reaching its decision. We turn now to Wilfred’s alleged violation of COEI’s dual accreditation policy, one of the violations on which COEI predicated its withdrawal of accreditation. IV. Schools may receive accreditation from more than one accrediting association. As a result, COEI’s Policies and Standards includes a dual accreditation policy requiring each accredited institution to “describe itself in identical terms to each recognized accrediting body with regard to purpose, governance, programs, degrees, diplomas, certificates, personnel, finances, and constituents, and [ ] keep each accrediting body apprised of any change in its status with one or another accrediting body.” 1988" }, { "docid": "7234001", "title": "", "text": "of the profession, is not sufficient to warrant application of the antitrust laws. Id. at 654 (footnotes omitted). However, the court stopped short of granting accreditation decisions in the education field complete immunity under the Sherman Act, holding that “[i]t is possible to conceive of restrictions on eligibility for accreditation that could have little other than a commercial motive; and as such, antitrust policy would presumably be applicable.” Id. at 654-55. The court concluded that: Absent such motives, however, the process of accreditation is an activity distinct from the sphere of commerce; it goes rather to the heart of the concept of education itself. We do not believe that Congress intended this concept to be molded by the policies underlying the Sherman Act. Id. at 655. Other courts have cited Marjorie Webster with approval, prompting the authors of a recent article to conclude that “decisions involving Sherman Act challenges against accrediting associations have been consistent with this deferential view of favoring the accrediting associations.” Jeffrey C. Sun & Philip T.K. Daniel, The Sherman Act Antitrust Provisions and Collegiate Action: Should There be a Continued Exception for the Business of the University?, 25 J.C. & U.L. 451, 469 (1999) (citing Marjorie Webster, Brandt v. American Bar Ass’n, No. CIV.A 3:96-cv-2606D, 1997 WL 279762 (N.D.Tex. May 15, 1997) (mem.op.), and Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026 (3d Cir.1997)). In fact, Sun and Daniel suggested that this deference is similar to the “arbitrary or unreasonable” standard of review applied to direct review of accrediting decisions. See id. (citing two cases cited in this Court’s previous opinion of December 21, 1998, Wilfred Academy of Hair & Beauty Culture v. Southern Ass’n of Colleges & Schs., 957 F.2d 210, 214 (5th Cir.1992) and Parsons College v. North Central Ass’n of Colleges & Secondary Schs., 271 F.Supp. 65, 72 (N.D.Ill.1967)). Savannah College does not dispute the applicability of Marjorie Webster, but rather argues that it has met the exception in Marjorie Webster allowing antitrust scrutiny of accreditation decisions with “little other than a commercial motive” by alleging that" }, { "docid": "5699134", "title": "", "text": "only on whether its decisions were capricious or arbitrary. See Chicago School of Automatic Transmissions, Inc., v. Accreditation Alliance of Career Schools and Colleges, 44 F.3d 447 (7th Cir.1994). Defendant ACCET compares this administrative rule to the business judgment rule that is used in corporate settings. Second, ACCET argues that public policy requires that students should not be able to sue accrediting agencies when they are unhappy about the quality of education they receive. To understand the flaws in ACCET’s argument, it is again vital to understand what this ease is not. This case is not a situation in which an accrediting agency, after thoughtful consideration and examination, decided to accredit a school and subsequent students are challenging the decision to accredit based on their dissatisfaction with the school. Nor is this the case of a school challenging an accrediting agency’s decision to deny or withdraw accreditation. See Wilfred Academy of Hair and Beauty Culture v. The Southern Ass’n Colleges and Schools, 957 F.2d 210, 214 (5th Cir.1992); Peoria School of Business v. Accrediting Council for Continuing Educ. and Training, 805 F.Supp. 579 (N.D.Ill. 1992.) When a decision on the merits to accredit had been reached by an agency, courts have then been reluctant to enter the foray. Here, however, the problem is that there was no decision by ACCET on the merits. ACCET did not go through the reaecreditation procedure as it was supposed to do according to its own regulations. Because ACCET did not do this, there is no decision which the court can analyze under either a deferential approach or the business judgment rule. Furthermore, the court refuses to hold that public policy demands that an accrediting agency escape liability for intentional or reckless misrepresentations. The court concludes that students who rely on the representation of an accrediting agency do have a cause of action against the accrediting agency if the representation was false and intentional. Public policy requires that AC-CET, which has recognized and encouraged prospective students to rely on its decisions to accredit schools, be held liable for any fraudulent accreditations. 4. Duty Defendant ACCET" }, { "docid": "5699133", "title": "", "text": "a sham. Plaintiff has argued that she could not known of the fraud until the closing of NBS, which occurred in 1990. The court does agree with defendant that plaintiff has not demonstrated why NBS’s closing is the appropriate date. It appears that Armstrong had become convinced that her educational experiences were worthless at least by the time she dropped out of the school. At trial, both parties will have the ability to produce evidence on when it was reasonable for Armstrong to have knowledge of the fraud, which will be an issue for the decision maker to decide. 3. Deference, the Business Judgment Rule & Public Policy Defendant ACCET argues that the court should defer to the actions of the ac crediting agency for several reasons. AC-CET first asserts that courts, when analyzing the decisions of accrediting agencies, have traditionally applied the deferential approach embodied in administrative law. Decisions of agencies are overturned only when they are capricious or arbitrary, and in a similar manner this court should examine the actions of ACCET focusing only on whether its decisions were capricious or arbitrary. See Chicago School of Automatic Transmissions, Inc., v. Accreditation Alliance of Career Schools and Colleges, 44 F.3d 447 (7th Cir.1994). Defendant ACCET compares this administrative rule to the business judgment rule that is used in corporate settings. Second, ACCET argues that public policy requires that students should not be able to sue accrediting agencies when they are unhappy about the quality of education they receive. To understand the flaws in ACCET’s argument, it is again vital to understand what this ease is not. This case is not a situation in which an accrediting agency, after thoughtful consideration and examination, decided to accredit a school and subsequent students are challenging the decision to accredit based on their dissatisfaction with the school. Nor is this the case of a school challenging an accrediting agency’s decision to deny or withdraw accreditation. See Wilfred Academy of Hair and Beauty Culture v. The Southern Ass’n Colleges and Schools, 957 F.2d 210, 214 (5th Cir.1992); Peoria School of Business v. Accrediting Council" }, { "docid": "7234002", "title": "", "text": "Provisions and Collegiate Action: Should There be a Continued Exception for the Business of the University?, 25 J.C. & U.L. 451, 469 (1999) (citing Marjorie Webster, Brandt v. American Bar Ass’n, No. CIV.A 3:96-cv-2606D, 1997 WL 279762 (N.D.Tex. May 15, 1997) (mem.op.), and Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026 (3d Cir.1997)). In fact, Sun and Daniel suggested that this deference is similar to the “arbitrary or unreasonable” standard of review applied to direct review of accrediting decisions. See id. (citing two cases cited in this Court’s previous opinion of December 21, 1998, Wilfred Academy of Hair & Beauty Culture v. Southern Ass’n of Colleges & Schs., 957 F.2d 210, 214 (5th Cir.1992) and Parsons College v. North Central Ass’n of Colleges & Secondary Schs., 271 F.Supp. 65, 72 (N.D.Ill.1967)). Savannah College does not dispute the applicability of Marjorie Webster, but rather argues that it has met the exception in Marjorie Webster allowing antitrust scrutiny of accreditation decisions with “little other than a commercial motive” by alleging that FIDER applied its accredita tion standards in this case with a commercial motive, namely the commercial desire to insulate FIDER’s members from competing with Savannah College in the recruitment of students and faculty and in obtaining grants, scholarships, endowments, and links to professional organizations that would arise from accreditation. (See 1st Am.Countercl. ¶¶ 80, 113, 115, 118.) Savannah College argues that resolution of FIDER’s purpose, motive, and intent in applying its accreditation standards in this case is a question of fact that can only be considered after allowing discovery. See Potters Med. Ctr. v. City Hosp. Ass’n, 800 F.2d 568, 572, 581 (6th Cir.1986) (noting that “motive and intent play leading roles” when evaluating antitrust claims and that “discovery should proceed for further development of the facts”). Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59 (2d Cir.1997), is helpful in resolving this issue. The plaintiffs alleged that Hamilton College violated the Sherman Act by changing its residential policy to require all of its students to live in college-owned facilities and" }, { "docid": "16737406", "title": "", "text": "of license or certificate — were bestowed by the federal agency directly, no one would suppose that state law governed. Instead the Administrative Procedure Act would govern judicial review, and the court would inquire whether the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or reached “without observance of procedure required by law”, 5 U.S.C. § 706(2)(A), (D). Many courts applied these principles of administrative law to accreditation decisions before the enactment of § 1099b(f), although usually without explicit recognition of the choice-of-law implications. E.g., Medical Institute of Minnesota v. National Association of Trade and Technical Schools, 817 F.2d 1310, 1314-15 (8th Cir.1987). Others used the APA’s approach after asserting that state law is functionally identical. E.g., Wilfred Academy of Hair & Beauty Culture v. Southern Association of Colleges & Schools, 957 F.2d 210, 214 (5th Cir.1992). We wonder whether an equation between the APA and state law is apt; administrative law entails deferential review, while courts applying contract law do not defer to either of the contracting parties’ views. Remedial differences also loom large. It is unnecessary to elaborate. We think that principles of federal administrative law supply the right perspective for review of accrediting agencies’ decisions. Section 1099b(f) cements the case for the application of federal law. Keams v. Tempe Technical Institute, Inc., 39 F.3d 222 (9th Cir.1994), which held that federal law does not preempt tort claims under state law by trade school students pursuing a theory of “wrongful accreditation,” does not mention § 1099b(f), which governs only the denial of accreditation. One may doubt whether it is sensible to use federal law to address denials of accreditation and state law to address grants of accreditation, but whether to follow Kearns is a subject for another day. The Alliance yanked the School’s accreditation after concluding that it had not complied with several rules. Only one concerns us now: the requirement that trade schools promptly refund the tuition of students who withdraw. The School concedes that it routinely took months to make refunds. During the initial round of examination and" }, { "docid": "7233995", "title": "", "text": "of Career Schools and Colleges, 44 F.3d 447 (7th Cir.1994), a case cited in this Court’s Opinion of December 21, 1998, the plaintiff, Chicago School of Automatic Transmissions, argued that the denial of accreditation by defendant was a breach of contract under Illinois law. However, the Seventh Circuit rejected the application of state law, noting that “accrediting bodies are not engaged in commercial transactions for which state-law contract principles are natural matches.” Chicago School, 44 F.3d at 449. The Seventh Circuit instead concluded, after citing many of the decisions cited by this Court in its Opinion of December 21, 1998, “that principles of federal administrative law supply the right perspective for review of accrediting agencies’ decisions.” Id. at 450 (noting that “administrative law entails deferential review, while courts applying contract law do not defer to either of the contracting parties’ views”). A similar conclusion was reached in Dietz v. American Dental Association, 479 F.Supp. 554 (E.D.Mich.1979), another case cited in this Court’s opinion of December 21, 1998. In Dietz, the plaintiff sued for breach of fiduciary duty and violation of the American Dental Association’s constitution and by-laws. The court concluded that plaintiff could only maintain a claim under these common law causes of action if the decision by the association was “arbitrary, capricious, or discriminatory.” Dietz, 479 F.Supp. at 557. A third case cited in this Court’s prior Opinion, Transport Careers, Inc. v. National Home Study Council, 646 F.Supp. 1474 (N.D.Ind.1986), also supports this conclusion. The plaintiff in Transport Careers alleged violations of common law procedural due process, common law substantive due process, disparate treatment, and breach of fiduciary duty. The court applied the deferential standard for review of the decisions of accrediting bodies to each of plaintiffs common law claims, concluding that summary judgment in favor of defendant was appropriate because the accrediting body followed its own rules and its decision to terminate plaintiffs accreditation was supported by substantial evidence. See Transport Careers, 646 F.Supp. at 1486. Savannah College’s counsel essentially admitted at oral argument that each of the college’s common law counterclaims, ex cept for its fraud claim," }, { "docid": "14350441", "title": "", "text": "the numbers of vascular, pancreas, endocrine, trauma, pediatric, and head and neck operations at McKeesport were known, and the most recent data had shown that the McKeesport program was unable to provide adequate experience in six of the thirteen major categories of surgery. Of the two McKeesport graduates, one was deficient in seven of the defined categories, and the other in four. In the ACGME’s professional judgment, McKeesport’s program did not have the “breadth, depth, complexity, and volume to sustain an adequate experience for two residents, and that each of these residents did not have what [the ACGME] would accept as a broadly based surgical experience.” This conclusion was within the ACGME’s competence to decide and was not arbitrary and capricious. In view of the supported ACGME conclusions about scholarly activity and surgical experience, both of which it considers important criteria for program certification, I am satisfied that McKeesport had no probability of success on the merits of the substantive due process claim. D. Common Law Due Process McKeesport’s complaint averred only a violation of constitutional due process. It appears, however, that McKeesport could have also claimed a violation of common law due process (as it now seeks leave to amend to do). Many courts have recognized a state or common law duty on the part of “quasi-public” private professional organizations or accreditation associations to employ fair pro cedures when making decisions affecting their members. See Wilfred Academy of Hair & Beauty Culture v. Southern Ass’n of Colleges & Schools, 957 F.2d 210, 214 (5th Cir.1992); Medical Inst. of Minn. v. National Ass’n of Trade & Tech. Schools, 817 F.2d 1310, 1313 (8th Cir.1987); Marlboro Corp. v. Association of Indep. Colleges & Schools, Inc., 556 F.2d 78, 79 (1st Cir.1977); Marjorie Webster Junior College, Inc. v. Middle States Ass’n of Colleges and Secondary Schools, Inc., 432 F.2d 650, 655 (D.C.Cir. (1970), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970); Peoria School of Business, Inc. v. Accrediting Council for Continuing Educ. & Training, 805 F.Supp. 579, 582 (N.D.Ill.1992); St. Agnes II, 748 F.Supp. at 338; Interfaith Med." }, { "docid": "22255706", "title": "", "text": "we should accord deference to academic decisions made by the school in the context of an ADA or Rehabilitation Act claim, an issue of first impression in this circuit. In Regents of the Univ. of Michigan v. Ewing, the Supreme Court analyzed the issue of the deference a court should extend to an educational institution’s decision in the due process context. See 474 U.S. 214, 106 S.Ct. 607, 88 L.Ed.2d 523 (1985). In Ewing, the plaintiff-medical student challenged his dismissal from medical school as arbitrary and capricious in violation of his substantive due process rights. See id. at 217, 106 S.Ct. 507. The Court held that: When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty’s professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment. Id. at 225, 106 S.Ct. 507 (footnote omitted). While the Court made this statement in the context of a due process violation claim, a majority of circuits have extended judicial deference to an educational institution’s academic decisions in ADA and Rehabilitation Act cases. See Doe v. New York Univ., 666 F.2d 761 (2d. Cir.1981); McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850 (5th Cir.1993); Wynne v. Tufts Univ. Sch. of Med. (“Wynne I”), 932 F.2d 19 (1st. Cir.1991). But see Pushkin v. Regents of the Univ. of Colorado, 658 F.2d 1372 (10th Cir.1981) (refusing to adopt deferential, rational basis test in evaluating educational institution’s decisions in Rehabilitation Act ease). These courts noted the limited ability of courts, “as contrasted to that of experienced educational administrators and professionals,” to determine whether a student “would meet reasonable standards for academic and professional achievement established by a university,” and have concluded that “ ‘[cjourts are particularly ill-equipped to evaluate academic performance.’ ” Doe, 666 F.2d at 775-76 (quoting Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 92, 98 S.Ct. 948, 55" }, { "docid": "16737405", "title": "", "text": "principles are natural matches. The “contract” the School wants to enforce is not a bargained-for exchange but á set of rules developed by an entity with many of the attributes of an administrative agency. Accreditation groups adopt and change their rules unilaterally; by posting an application fee a trade school cannot lock in a favorable set of rules. One set of rules applies nationwide (implying that if any non-federal law should be absorbed, it would be the law of the District of Columbia, where the Association has its headquarters, rather than the law of the applicants’ states). Although the law of every state contains a set of rules for the conduct of voluntary associations, distinct from the law of contracts, this too is not quite the right match; the School did not apply to “join” the Alliance. It wanted a key that would unlock the federal Treasury. An accrediting agency is a proxy for the federal department whose spigot it opens and closes. If accreditation — which the Secretary of Education treats as a sort of license or certificate — were bestowed by the federal agency directly, no one would suppose that state law governed. Instead the Administrative Procedure Act would govern judicial review, and the court would inquire whether the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or reached “without observance of procedure required by law”, 5 U.S.C. § 706(2)(A), (D). Many courts applied these principles of administrative law to accreditation decisions before the enactment of § 1099b(f), although usually without explicit recognition of the choice-of-law implications. E.g., Medical Institute of Minnesota v. National Association of Trade and Technical Schools, 817 F.2d 1310, 1314-15 (8th Cir.1987). Others used the APA’s approach after asserting that state law is functionally identical. E.g., Wilfred Academy of Hair & Beauty Culture v. Southern Association of Colleges & Schools, 957 F.2d 210, 214 (5th Cir.1992). We wonder whether an equation between the APA and state law is apt; administrative law entails deferential review, while courts applying contract law do not defer to either of the" }, { "docid": "7233996", "title": "", "text": "fiduciary duty and violation of the American Dental Association’s constitution and by-laws. The court concluded that plaintiff could only maintain a claim under these common law causes of action if the decision by the association was “arbitrary, capricious, or discriminatory.” Dietz, 479 F.Supp. at 557. A third case cited in this Court’s prior Opinion, Transport Careers, Inc. v. National Home Study Council, 646 F.Supp. 1474 (N.D.Ind.1986), also supports this conclusion. The plaintiff in Transport Careers alleged violations of common law procedural due process, common law substantive due process, disparate treatment, and breach of fiduciary duty. The court applied the deferential standard for review of the decisions of accrediting bodies to each of plaintiffs common law claims, concluding that summary judgment in favor of defendant was appropriate because the accrediting body followed its own rules and its decision to terminate plaintiffs accreditation was supported by substantial evidence. See Transport Careers, 646 F.Supp. at 1486. Savannah College’s counsel essentially admitted at oral argument that each of the college’s common law counterclaims, ex cept for its fraud claim, is precluded by this Court’s prior determination that FID-ER followed its own procedures in denying Savannah College accreditation, that those procedures were fair and impartial, that FIDER’s decision was supported by substantial evidence in the record, and that FIDER did not otherwise act in an arbitrary, capricious, or wrongful manner. The Court concludes that allowing Savannah College to proceed with these counterclaims would sanction form over substance, allowing artful pleading to avoid the deferential standard of review uniformly applied to the review of accreditation decisions. Accordingly, Savannah College’s breach of contract, breach of fiduciary duty, violation of common law procedural due process, and violation of common law substantive due process claims will be dismissed. Savannah College argues that its fraud claim must be treated differently from these other common law counterclaims for two reasons: (1) in order to state a fraud claim, Savannah College must meet the heightened pleading requirements of Fed. R.Civ.P. 9(b), which provides adequate protection for FIDER and distinguishes the fraud claim from the other common law claims; and (2) none of" }, { "docid": "22990199", "title": "", "text": "the case law. The scope of review section of the Administrative Procedure Act, 5 U.S.C. § 706, provides af follows: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) 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; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or other wise 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. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. (Emphasis added.) Thus there appear to be three principal standards of review in government employee dismissal cases suggested by the Administrative Procedure Act quoted above or by case law generally: (1) whether there has been procedural regularity, i.e., compliance with statutory and other requirements for the giving of notice, conduct of hearings, allowance of appeals and the like; (2) whether the agency action is arbitrary, capricious or an abuse of discretion (5 U.S.C. § 706(2) (A) ); or (3) whether the agency action is supported by “substantial evidence.” (5 U.S.C. § 706(2) (E).) The second and third tests I do not consider to be the same. While agency action which is arbitrary and capricious, or which constitutes an abuse of discretion, would no doubt be action which is “unsupported by substantial evidence,” the reverse" }, { "docid": "14355516", "title": "", "text": "Before addressing the merits of the case, we must first consider the proper scope of review for a court reviewing an accreditation decision made by a voluntary association. SACS argues that the district court incorrectly looked to federal common law to determine the proper scope for reviewing COEI’s decision to drop Wilfred’s accreditation. SACS contends that, under the Texas conflict of laws rules, the court should have applied the standards adopted by Georgia for reviewing decisions of voluntary associations because Georgia has the most significant contacts to this dispute. We need not resolve this conflict of laws question, however, because SACS's argument raises a false conflict. Federal courts have consistently limited their review of decisions of accrediting associations to whether the decisions were “arbitrary and unreasonable” and whether they were supported by “substantial evidence.” See, e.g., Medical Institute of Minnesota v. National Ass’n of Trade and Technical Sch., 817 F.2d 1310, 1314 (8th Cir.1987); Rockland Inst. v. Association of Indep. Colleges and Sch., 412 F.Supp. 1015, 1016 (C.D.Cal.1976). Neither Georgia nor Texas law differs significantly from the above rule. See Golden Star of Honor v. Worrell, 158 Ga. 309, 123 S.E. 106 (1924); Hoey v. San Antonio Real Estate Bd., Inc., 297 S.W.2d 214, 217 (Tex.Civ.App.—San Antonio 1956, no writ). Therefore, we need not determine whether we should apply Georgia or Texas law rather than the rule adopted by a number of federal courts. In reviewing an accrediting association’s decision to withdraw a member’s accreditation, the courts have accorded the association’s determination great deference. Medical Inst. of Minnesota, 817 F.2d at 1314; Marjorie Webster Junior College, Inc. v. Middle States Ass’n of Colleges and Secondary Sch., 432 F.2d 650, 657 (D.C.Cir.), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970). Courts give accrediting associations such deference because of the professional judgment these associations must necessarily employ in making accreditation decisions. In considering the substance of accrediting agencies’ rules, courts have recognized that “[t]he standards of accreditation are not guides for the layman but for professionals in the field of education.” Parsons College v. North Cent. Ass’n of" }, { "docid": "23622928", "title": "", "text": "is no equal protection violation, we can see no basis for finding that a medical student’s interest in continuing her medical school education is protected by substantive due process. Cf. Gutzwiller v. Fenik, 860 F.2d 1317, 1328-29 (6th Cir.1988) (stressing, in the public university context, the similarity of equal protection and substantive due process). Certainly the contention that the medical college’s actions were arbitrary or capricious cannot be sufficient; otherwise judicial review for compliance with substantive due process would become the equivalent of a typical state or federal Administrative Procedure Act. See, e.g., 5 U.S.C. § 706(2)(A) (review of agency action under arbitrary or capricious standard). Even if Ms. Bell could claim an interest in her continued enrollment that would be protected by substantive due process, she has presented no evidence that she was denied that protection by the defendants. In Regents of the University of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985), the Supreme Court addressed the claim of a medical student who complained that the University defendants had denied him substantive due process after he failed Part I of the NBME, which was required in order for him to proceed to the final two years of the medical school program in which he was enrolled. Rather than permitting the plaintiff to retake Part I, the University dismissed him from the program after evaluating his entire academic record. The Supreme Court assumed, without deciding, that there was “a constitutionally protectable right in [the plaintiffs] continued enrollment.” Id. at 223, 106 S.Ct. 507. Nonetheless, the Court made it clear that the judiciary’s review of academic decisions is limited: When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty’s professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment. Id. at 225, 106 S.Ct. 507. The Court went on to point out that courts are ill-suited" } ]

[ { "docid": "5315590", "title": "", "text": "its intent to construe Wisch’s filing as a 35(c) petition, and defense counsel went along with the court without objection. Such a construction decidedly works to Wisch’s benefit, given AEDPA’s limits on post-conviction proceedings. We are not convinced that the trial judge committed clear error. See id. at 868 (finding a “motion to correct sentence” to be “the functional equivalent” of a Rule 35(e) motion). Cf. Henderson v. United States, 264 F.Bd 709 (7th Cir.2001) (discussing procedural safeguards required prior to conversion of mislabeled Rule 33 motion into § 2255 petition); Fed.R.Civ.P. 12(c). B. 7-Day Jurisdictional Window Having concluded that Wisch’s Motion To Correct was brought under Rule 35(c), we thus review de novo the legal question of whether the district court had jurisdiction, under the rule, to grant Wisch’s request for relief. United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Excluding weekends and legal holidays, the district court has “7 days after the imposition of sentence” to correct its alleged error. Fed.R.Crim.P. 45(a), 35(c). The time limit is jurisdictional, United States v. Vega, 241 F.3d 910, 911-12 (7th Cir.2001) (per curiam), and, furthermore, the motion must be ruled on by the district court within seven days, not simply filed with the clerk of court during that time. What this means is that a court’s failure to rule is functionally equivalent to an outright denial on the merits, thus “making the judgment final on the date the district judge’s power to alter the sentence expired.” United States v. Turner, 998 F.2d 534, 536 (7th Cir.1993). The First Circuit and we have held that the imposition of sentence occurs on the date the judgment is entered by the clerk of court. United States v. Clay, 37 F.3d 338, 340 (7th Cir.1994); Turner, 998 F.2d at 536; Morillo, 8 F.3d at 869 n. 8. The Government invites us to overrule Clay and Turner and join five other circuits in holding that a sentence is imposed on the day it is orally pronounced. See United States v. Aguirre, 214 F.3d 1122, 1125 (9th Cir.2000); United States v. Morrison, 204 F.3d" } ]

[ { "docid": "22920978", "title": "", "text": "states that “[w]ithin 7 days after sentencing, the court may correct a sentence,” Fed. R. Crim P. 35(a) (emphasis added)—makes clear that the seven-day period limits the time in which a court may impose a corrected sentence, not the time in which a party may make a motion for such a sentence. That Rule 35(a) speaks in terms of actions by a court, and not a party, is telling: The other portions of Rule 35 speak of actions by a party, so the omission of such terms in Rule 35(a) appears intentional. See Fed.R.Crim.P. 35(b)(1) (“Upon the government’s motion .... ”); Fed.R.Crim.P. 35(b)(2) (same). Many courts of appeals have rejected the argument that filing a motion to correct a sentence or scheduling a hearing on such a motion within seven days of the pronouncement of sentence can result in the extension of the period in which a court may act pursuant to Rule 35(a). See, e.g., United States v. Wisch, 275 F.3d 620, 626 (7th Cir.2001) (“The time limit is jurisdictional, and, furthermore, the motion must be ruled on by the district court within seven days, not simply filed with the clerk of court during that time.... [A] court’s failure to rule is functionally equivalent to an outright denial on the merits, thus making the judgment final on the date the district judge’s power to alter the sentence expired.”) (quotations and citation omitted); United States v. Morrison, 204 F.3d 1091, 1092, 1094 (11th Cir.2000) (holding that a district court lacks jurisdiction under Rule 35 “to correct a sentence if the court sets the sentence aside within seven days of orally pronouncing it in open court but does not impose a new sentence until -more than seven days have passed,” and concluding that “[wjithout imposition of a new and corrected sentence before the seven days were up,” the court’s order vacating the initial sentence “withered and is of no effect,” such that the defendant was entitled to have his original sentence reimposed); United States v. Morillo, 8 F.3d 864, 869 (1st Cir.1993) (“[I]f a motion is timely made but is not" }, { "docid": "22920976", "title": "", "text": "also Townsend, 33 F.3d at 1231 (“[Defendant] was sentenced on August 13, 1993.... Thus, the district court had jurisdiction to correct [Defendant’s sentence for clerical or technical errors until August 20, 1993.”). In this case, the district court orally pronounced Defendant’s original sentence on June 24, 2004. Defendant filed his Rule 35(a) motion on June 30, 2004. On July 6, 2004, the district court scheduled a hearing on that motion. At the hearing, which was held on July 9, 2004, the court denied Defendant’s motion, but then sua sponte resentenced Defendant to the lower sentence. Thus, in this case the district court scheduled a hearing on Defendant’s motion to correct the original sentence within the seven-day period mandated by Rule 35(a). Though twelve calendar days elapsed between the original sentencing hearing and the district court’s scheduling of a hearing on Defendant’s motion, only seven days passed during that time for purposes of Rule 35(a). This is because Fed.R.Crim.P. 45 provides that if the period of time specified in a Federal Rule of Criminal Procedure is less than eleven days, intermediate Saturdays, Sundays, and legal holidays should be excluded. Fed.R.Crim.P. 45(a)(2). Therefore, for purposes of Rule 35(a) the seventh day after the district court orally pronounced sentence was July 6—the day that the court scheduled a hearing on Defendant’s motion to correct his sentence. Similarly, for purposes of Rule 35(a) the district court resentenced Defendant on the tenth day (the fifteenth calendar day) after the court orally sentenced Defendant. Because the July 9 resentenc-ing was conducted more than seven “Rule 35(a) days” following the June 24 sentencing, the district court lacked jurisdiction under Rule 35(a) to resentence Defendant at that time. The fact that Defendant made a motion for resentencing within the seven-day period, and that the district court scheduled a hearing on that motion within the seven-day period, did not extend the district court’s jurisdiction to dispose of the motion beyond the seven-day period. Rule 35(a) makes no provision for the extension of this period based on a timely motion by a party. The plain language of the rule— which" }, { "docid": "23136265", "title": "", "text": "time limit is jurisdictional and holding that the district court did not have inherent authority to correct a sentence after the expiration of that period). The Court of Appeals for the Fourth Circuit’s decision in United States v. Shank, 395 F.3d 466 (4th Cir.2005), is instructive. In Shank, the defendant had filed a motion to correct his sentence under former Rule 35(c), now Rule 35(a), within seven days of sentencing. Id. at 468. The district court failed to act on the motion within the seven days, but denied the motion several months later. Shank appealed, arguing that “if a defendant timely invokes Rule 85 (i.e., within seven days), the district court is vested with jurisdiction to dispose of that motion, regardless of how long it takes the court to do so.” Id. (internal citations omitted). The Court of Appeals rejected that argument, holding that Rule 85(a) “divests a district court of jurisdiction to correct sentencing errors more than seven days after sentencing.” Id. In reaching that conclusion, the court relied heavily upon its analysis of the history and purposes of Rule 35, and, in particular, the Advisory Committee note explaining that the purpose of the seven-day rule was to allow the appellate process to proceed without jurisdictional confusion. Id. at 469. The court reasoned that because the time for filing an appeal expires after ten days following sentencing, the seven-day period for correcting a sentence “must lapse after seven days.” Id. This court has also held that the time limitations proscribed by Rule 35 are jurisdictional, albeit as applied to a prior version of Rule 35(b) rather than the provision at issue here. In United States v. Friedland, 83 F.3d 1531, 1538 (3d Cir.1996), defendant Friedland made a motion for a reduction of sentence under Rule 35(b). Because Friedland committed his offense before the 1987 amendments took effect, the prior version of Rule 35(b), which allowed a defendant to make a motion for reduction of sentence within 120 days of sentencing, applied. Id. Friedland made the motion, but he did not do so within the 120 days. We recognized, citing" }, { "docid": "22920975", "title": "", "text": "sentence under this subdivision [wa]s intended to be very narrow and to extend only to those cases in which an obvious error or mistake ha[d] occurred ....” Id. “The subdivision [wa]s not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence.” Id. “Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court’s discretion with regard to the application of the sentencing guidelines.” Id. We have held that, for purposes of Rule 35, “sentence is imposed upon a criminal defendant ... when the [district] court orally pronounces sentence from the bench.” United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir.1994). Thus, a court may act pursuant to Rule 35(a) to correct a sentence only within seven days of orally pronouncing sentence. We have held that this seven-day time limit is juris dictional. See Blackwell, 81 F.3d at 948 & n. 4; see also Townsend, 33 F.3d at 1231 (“[Defendant] was sentenced on August 13, 1993.... Thus, the district court had jurisdiction to correct [Defendant’s sentence for clerical or technical errors until August 20, 1993.”). In this case, the district court orally pronounced Defendant’s original sentence on June 24, 2004. Defendant filed his Rule 35(a) motion on June 30, 2004. On July 6, 2004, the district court scheduled a hearing on that motion. At the hearing, which was held on July 9, 2004, the court denied Defendant’s motion, but then sua sponte resentenced Defendant to the lower sentence. Thus, in this case the district court scheduled a hearing on Defendant’s motion to correct the original sentence within the seven-day period mandated by Rule 35(a). Though twelve calendar days elapsed between the original sentencing hearing and the district court’s scheduling of a hearing on Defendant’s motion, only seven days passed during that time for purposes of Rule 35(a). This is because Fed.R.Crim.P. 45 provides that if the period of time specified in a Federal Rule of Criminal Procedure is" }, { "docid": "22920979", "title": "", "text": "must be ruled on by the district court within seven days, not simply filed with the clerk of court during that time.... [A] court’s failure to rule is functionally equivalent to an outright denial on the merits, thus making the judgment final on the date the district judge’s power to alter the sentence expired.”) (quotations and citation omitted); United States v. Morrison, 204 F.3d 1091, 1092, 1094 (11th Cir.2000) (holding that a district court lacks jurisdiction under Rule 35 “to correct a sentence if the court sets the sentence aside within seven days of orally pronouncing it in open court but does not impose a new sentence until -more than seven days have passed,” and concluding that “[wjithout imposition of a new and corrected sentence before the seven days were up,” the court’s order vacating the initial sentence “withered and is of no effect,” such that the defendant was entitled to have his original sentence reimposed); United States v. Morillo, 8 F.3d 864, 869 (1st Cir.1993) (“[I]f a motion is timely made but is not decided within the seven-day period, the judge’s power to act under the rule subsides and the pending motion is deemed to be denied as of that date.”). Our holding in United States v. Corey, 999 F.2d 493, 496 (10th Cir.1993) (holding that filing a motion under the former Rule 35(c) delays the starting point of the period for filing an appeal until the district court disposes of the motion), appears at first glance to support the argument that filing a Rule 35(a) motion extends the district court’s jurisdiction to rule on the motion beyond the seven-day period. See also United States v. Smith, 929 F.2d 1453, 1457-58 (10th Cir.1991), (allowing the district court to resentence a defendant at a time when the defendant had not yet begun to serve his sentence and the government was permitted to take an appeal); United States v. Carmouche, 138 F.3d 1014, 1016 (5th Cir.1998) (holding that a timely rule 35(c) motion renders an otherwise final order of a district court nonfinal until disposition of that motion). However, the 2002" }, { "docid": "17642053", "title": "", "text": "on appeal. The time period, however, is jurisdictional and may not be extended.” Id. at 189, 99 S.Ct. 2235; see also, United States v. Orozco, 160 F.3d 1309, 1313 (11th Cir.1998) (recognizing that the one-year period in revised Rule 35(b) is a jurisdictional deadline). Just as the time period specified in Rule 35(b) is jurisdictional, so also is the time period specified in Rule 35(c). See United States v. Yost, 185 F.3d 1178, 1180 n. 3 (11th Cir.1999)(“Rule 35(c) authority is jurisdictional”)(dicta); United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2nd Cir.1995)(eollecting cases). The government’s next argument has more meat to it, but is still unavailing. The government contends that “the imposition of sentence,” as that phrase is used in the rule refers to the written imposition of sentence or entry of judgment, not to the oral imposition of sentence. If the seven-day jurisdictional period for correcting a sentence under Rule 35(c) does not begin to run until the sentence is reduced to writing or entered as part of the judgment, then the sentence in this case was corrected before it was ever “imposed” and, of course, before seven days had run after it was imposed. On the other hand, if “the imposition of sentence” means or includes the oral imposition of sentence at the sentence hearing, then the seven days began to run on August 14 and ran out before Morrison was resentenced on August 27. In Yost, 185 F.3d at 1180 n. 3, we noted this issue without deciding it. In our opinion in that case, we did list the number of circuits on each side of this issue, showing that there was a four-to-one, or perhaps four-to-two, split in favor of the view that a sentence is imposed for purposes of Rule 35(c) when it is orally pronounced by the district court. Id. We did not need to choose either side of the issue in Yost, but the time for choosing a side has come. We choose the majority side of this issue, agreeing that the Rule 35(c) seven-day window opens upon the oral imposition of sentence" }, { "docid": "22314655", "title": "", "text": "Procedure 35(c) to resentence Penna to a ten-year prison term. See United States v. Barragan-Mendoza, 174 F.3d 1024, 1027 (9th Cir.1999). DISCUSSION I. Penna contends on appeal that the district court lacked jurisdiction to correct his sentence because, although the court vacated his five-year sentence for the conspiracy charge within seven days of orally pronouncing it, the court did not resen-tence him to a ten-year prison term until nine months after it had initially imposed a sentence. Penna argues that we therefore should vacate his ten-year sentence and reinstate his initial five-year sentence. We agree. A court generally may not correct or modify a prison sentence once it has been imposed. 18 U.S.C. § 3582(c). A court may modify a prison sentence, however, “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B); see also Barragan-Mendoza, 174 F.3d at 1028 (noting that district courts do not have “ ‘inherent authority’ ” to reconsider sentencing orders). Federal Rule of Criminal Procedure 35(c) states: “The court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error.” Fed.R.Crim.P. 35(c) (emphasis added). The district court must correct a sentence within seven days after orally pronouncing it or else it loses its jurisdiction to modify the sentence. See United States v. Aguirre, 214 F.3d 1122, 1123 (9th Cir.2000) (holding that Rule 35(c) applies from the time of oral imposition of the sentence); Barragan-Mendoza, 174 F.3d at 1030 (holding that because the district court did not act on the government’s motion to reconsider sentence within seven days after imposing the sentence, the district court lacked jurisdiction to correct the sentence and the initial sentence should stand); United States v. Wisch, 275 F.3d 620, 626 (7th Cir.2001) (reasoning that the seven-day time limit in Rule 35(c) is jurisdictional); United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir.2000) (“Just as the time period specified in Rule 35(b) is jurisdictional, so also is the time period specified in Rule" }, { "docid": "22051216", "title": "", "text": "Procedure nor 18 U.S.C. § 3583(e) [dealing with issues of supervised release] provides authority to resen-tence Diaz-Clark in [the Miami Case].” This was an accurate statement, and as such the district court acted outside the boundaries of its jurisdiction when it re-sentenced Diaz-Clark in the Miami Case. Prior to the 1987 amendments to the Federal Rules of Criminal Procedure, Rule 35(a) stated that “[t]he court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” However, as part of the Sentencing Reform Act of 1984, Congress amended this part of Rule 35. On November 1, 1987, the amendments took effect. Then Rule 35 was again amended in 1991. As amended, Rule 35 provides that a sentencing court may correct a sentence: (1) if directed to do so on remand from an appellate court, see Fed. R.Crim. P. 35(a); (2) within one year of the original sentence if upon a substantial assistance motion filed by the government, see id. 35(b); or (3) most significantly for this appeal, “within seven days after the imposition of sentence, ... [to] correct a sentence that was imposed as a result of arithmetical, technical, or other clear error.” Id. 35(c). This Court has conclusively held that “the seven-day limitation contained in Rule 35(c) is a jurisdictional restriction,” United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir.2000); see also United States v. Yost, 185 F.3d 1178, 1180 n. 3 (11th Cir.1999) (“Rule 35(c) authority is jurisdictional”) (dicta), and other Courts of Appeal have agreed. See, e.g., United States v. Lopez, 26 F.3d 512, 518-19 (5th Cir.1994) (per curiam); United States v. Fahm, 13 F.3d 447, 453 (1st Cir.1994); United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir.1994). Therefore, a court’s modification of a sentence outside of this seven-day period is an action taken without the requisite jurisdiction, and is a legal nullity. See Morrison, 204 F.3d at 1094 (vacating district court’s modified sentence imposed thirteen days after original sentence orally imposed). Other circuit courts that have addressed" }, { "docid": "15298337", "title": "", "text": "163 L.Ed.2d 14 (2005), as casting doubt on whether Rule 35 is a jurisdictional rule. Moreover, she argues that the court correctly interpreted Cunningham and thus did not commit clear error under Rule 35. Once a district court imposes a term of imprisonment, it may modify that term only to the extent authorized by 18 U.S.C. § 3582(c). This statute permits a court to modify a sentence under Rule 35. Rule 35 provides that: “Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed. R.Crim.P. 35(a). Wg We previ0Usly interpreted Rule g5 ag imposing a jurisdictional limit Qn the district court,s abffity to correct a sentenca See Unüed States v. Fahm, 13 F.3d 447, 453 (1st Cir.1994) (holding that „the district court lacked jurisdiction to correct itg original sentence beyond the limitation period presCribed in [Rule 35(a)]»x This interpretation is unremarkable. We have not, however, decided whether a district court may “correct” a sentence by suspending or vacating the sentence within the seven-day window and subsequently resentencing outside of that window. That is the case presented here—the district court vacated its original sentence five days after Griffin was initially sentenced. The circuits that have squarely addressed this or similar scenarios have con-eluded that if a district court resentences a defendant, it must do so within the seven-day period following the initial sentencing, Penna, 319 F.3d at 512 (holding district court lacked jurisdiction to resentence defendant outside seven-day period even where court vacated initial sentence within that period); Morrison, 204 F.3d at 1094 (same); see also Vicol, 460 F.3d at 696 (“Rule 35 requires a district court to actually resentence a defendant within the seven-day period therein described”). This reading of Rule 35 is consistent with the statute’s plain language. Vicol, 460 F.3d at 695 (“[T]he plain language of the rule ... makes clear that the district court must correct the sentence within the time limitation imposed, and not simply take some other undefined action toward that end, such as scheduling a hearing....”). , . , fhe rationale tor the" }, { "docid": "22035696", "title": "", "text": "discretion with regard to the application of the sentencing guidelines.” Fed.R.Crim.P. 35 advisory committee’s note (1991). Importantly for this case, this Court has held that the seven-day time limit in Rule 35(a) is jurisdictional, and that “[ojutside of Rule 35(e)[ ] there exists no ‘inherent authority’ for a district court to modify a sentence.” United States v. Diaz-Clark, 292 F.3d 1310, 1319 (11th Cir.2002); see also United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir.2000) (noting the seven-day limitation contained in then Rule 35(c) “is jurisdictional”). In Diaz-Clark, we were “presented with the specific question of whether a district court has jurisdiction, after the expiration of the time provided by Rule 35 of the Federal Rules of Criminal Procedure and without any federal habeas corpus petition before it, to reduce a prisoner’s sentence based upon its conclusion that the sentence it had originally imposed was erroneous due to a grouping error under the [sentencing [guidelines.” 292 F.3d at 1311. The Diaz-Clark court noted that (1) the district court “did not act within Rule 35(c)’s seven-day time period in modifying Diaz-Clark’s sentence,” (2) “a court’s modification of a sentence outside of this seven-day period is an action taken without the requisite jurisdiction, and is a legal nullity,” and (3) the district court’s “decision can only be upheld if it had some ‘inherent authority’ to modify the sentence.” Id. at 1317. This Court further stressed that whatever the scope of a district court’s inherent power, “ ‘it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure.’ ” Id. at 1318 (quoting Carlisle v. United States, 517 U.S. 416, 426, 116 S.Ct. 1460, 1466, 134 L.Ed.2d 613 (1996)). “ ‘[Fjederal courts have no more discretion to disregard the Rule’s mandate than they do to disregard constitutional or statutory provisions.’ ” Id. Accordingly, in Diaz-Clark we enforced the seven-day limit in Rule 35 and held the district court lacked jurisdiction to “modify the original sentence.” Id. at 1311. Based on Diaz-Clark and § 3582(c)(1)(B), and absent other statutory authority, we know that a" }, { "docid": "22314656", "title": "", "text": "“The court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error.” Fed.R.Crim.P. 35(c) (emphasis added). The district court must correct a sentence within seven days after orally pronouncing it or else it loses its jurisdiction to modify the sentence. See United States v. Aguirre, 214 F.3d 1122, 1123 (9th Cir.2000) (holding that Rule 35(c) applies from the time of oral imposition of the sentence); Barragan-Mendoza, 174 F.3d at 1030 (holding that because the district court did not act on the government’s motion to reconsider sentence within seven days after imposing the sentence, the district court lacked jurisdiction to correct the sentence and the initial sentence should stand); United States v. Wisch, 275 F.3d 620, 626 (7th Cir.2001) (reasoning that the seven-day time limit in Rule 35(c) is jurisdictional); United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir.2000) (“Just as the time period specified in Rule 35(b) is jurisdictional, so also is the time period specified in Rule 35(c).”). The district court’s jurisdiction to correct a sentence depends upon vacating the sentence and resentencing within the seven days following oral pronouncement of the sentence. See United States v. Colace, 126 F.3d 1229, 1231 (9th Cir.1997) (noting that sentence correction properly occurred within the seven days allowed by Rule 35(c)); United States v. Navarro-Espinosa, 30 F.3d 1169, 1170 (9th Cir.1994) (noting that a sentencing correction made more than seven days after oral pronouncement of the sentence would be untimely). Here, the district court properly vacated, within seven days, Penna’s five-year sentence for the conspiracy charge in light of its decision to proceed with a jury trial regarding the number of marijuana plants involved in the conspiracy. It erred, however, by failing to resentence Penna within the same seven-day period. As a result, the district court must reinstate Penna’s initial five year sentence because it never properly vacated and corrected this sentence under Rule 35(c). II. Alternatively, the government contends that the district court had discretion under Federal Rule of Criminal Procedure 36 to correct" }, { "docid": "15298338", "title": "", "text": "and subsequently resentencing outside of that window. That is the case presented here—the district court vacated its original sentence five days after Griffin was initially sentenced. The circuits that have squarely addressed this or similar scenarios have con-eluded that if a district court resentences a defendant, it must do so within the seven-day period following the initial sentencing, Penna, 319 F.3d at 512 (holding district court lacked jurisdiction to resentence defendant outside seven-day period even where court vacated initial sentence within that period); Morrison, 204 F.3d at 1094 (same); see also Vicol, 460 F.3d at 696 (“Rule 35 requires a district court to actually resentence a defendant within the seven-day period therein described”). This reading of Rule 35 is consistent with the statute’s plain language. Vicol, 460 F.3d at 695 (“[T]he plain language of the rule ... makes clear that the district court must correct the sentence within the time limitation imposed, and not simply take some other undefined action toward that end, such as scheduling a hearing....”). , . , fhe rationale tor the strict seven-day . . , , . . , . J time limit is articulated m the advisory _ , „ ^ committee no es. e . . rim. . vi sory Committees Notes (1991 amendment). The Committee believed that the time for correcting such errors should be narrowed within the time for appealing the sentence [to avoid jurisdictional confusion] and to provide the parties with an opportunity to address the [district] court s correetion of the sentence, or lack thereof, in any appeal of the sentence. Id. Griffin, nevertheless, argues that the Supreme Court’s ruling in Eberhart suggests that Rule 35(a) is not jurisdictional. In Eberhart, the Supreme Court analyzed Federal Rule of Criminal Procedure 33. 546 U.S. at 15-16,126 S.Ct. 403. This rule allows a defendant to file a motion for a new trial “within 7 days after the verdict of finding of guilty.” Fed.R.Crim.P. 33(b)(2). The Court characterized Rule 33 as a “claim-processing rule” that is not jurisdictional and can be forfeited. Eberhart, 546 U.S. at 19, 126 S.Ct. 403. In distinguishing" }, { "docid": "22051217", "title": "", "text": "id. 35(b); or (3) most significantly for this appeal, “within seven days after the imposition of sentence, ... [to] correct a sentence that was imposed as a result of arithmetical, technical, or other clear error.” Id. 35(c). This Court has conclusively held that “the seven-day limitation contained in Rule 35(c) is a jurisdictional restriction,” United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir.2000); see also United States v. Yost, 185 F.3d 1178, 1180 n. 3 (11th Cir.1999) (“Rule 35(c) authority is jurisdictional”) (dicta), and other Courts of Appeal have agreed. See, e.g., United States v. Lopez, 26 F.3d 512, 518-19 (5th Cir.1994) (per curiam); United States v. Fahm, 13 F.3d 447, 453 (1st Cir.1994); United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir.1994). Therefore, a court’s modification of a sentence outside of this seven-day period is an action taken without the requisite jurisdiction, and is a legal nullity. See Morrison, 204 F.3d at 1094 (vacating district court’s modified sentence imposed thirteen days after original sentence orally imposed). Other circuit courts that have addressed the issue are in accord. See, e.g., United States v. Austin, 217 F.3d 595, 597 (8th Cir.2000) (“Thus, more than seven days after the imposition of [the defendant’s] sentence, the District Court had no jurisdiction to alter it, even if the sentence was legally erroneous.”); United States v. Barragan-Mendoza, 174 F.3d 1024, 1029 (9th Cir.1999) (stating that the party seeking sentence modification “must meet the conditions of [Rule 35(c) ]; otherwise, the district court cannot modify a defendant’s sentence” and vacating sentence modified two months after original sentence imposed); United States v. Werber, 51 F.3d 342, 348 (2d Cir.1995) (“Because the district court modified the defendants’ original sentences more than seven days after they were imposed, the court had no jurisdiction to enter the corrected judgments under Rule 35(c).”); Lopez, 26 F.3d at 520 (holding that modification of original sentence “occurred outside the seven-day window and the district court lacked jurisdiction to act pursuant to Rule 35(c)”); Fahm, 13 F.3d at 454 (“Since the narrow window of opportunity allowed under Rule 35(c) closed long before" }, { "docid": "23351826", "title": "", "text": "yet run. What appellees overlook, however, is that all of the defendants in these cases were sentenced before the 1991 addition of Rule 35(c) to the Federal Rules of Criminal Procedure.”) (citations omitted). Thus, Rule 35(c) provides the only avenue for the district court to modify Barragan’s sentence. Rule 35(c) provides that “[t]he court, acting within 7 days after the imposition of sentence, may correct a sentence.” Although the government filed its motion within seven days, the district court did not rule on the motion within that time period. The government, nevertheless, ar gues that it satisfied the requirements of Rule 35(c), because the district court need not actually decide its motion within seven days, as long as the government filed the motion within that time period. A few of our sister circuits have held that a timely filed Rule 35(c) motion gives the district court jurisdiction over the motion for as long as it takes for the court to dispose of it. See United States v. Carmouche, 138 F.3d 1014, 1016 (5th Cir.1998) (holding that a timely Rule 35(c) motion renders otherwise final order of district court nonfinal until disposition of that motion); Corey, 999 F.2d at 496 (same). Other circuits, however, have held that a district court’s jurisdiction over a Rule 35(c) motion can last no longer than the seven days that the district court has to act on the motion after the imposition of sentence. See, e.g., Morillo, 8 F.3d at 869 (the district court loses jurisdiction over a Rule 35(e) motion “when the district court decides a timeous Rule 35(c) motion or at the expiration of seven days next following imposition of sentence, whichever first occurs.”); United States v. Turner, 998 F.2d 534, 536 (7th Cir.1993) (holding that, if a timely Rule 35(c) motion is filed, a district court’s judgment does not become final until the seventh day after the imposition of sentence, when the district judge’s power to alter the sentence expires). We adopt the latter view. The government’s interpretation of Rule 35(c) is contrary to the plain words of Rule 35(c), which require the" }, { "docid": "17642052", "title": "", "text": "of any error affecting the initial sentence. For present purposes, we will assume that sentencing Morrison to less than 46 months the first time was technical or clear error correct able under Rule 35(c) if the court had acted soon enough. Attempting to save the second and longer sentence, the government first argues that Morrison waived the seven-day limitation issue by not raising it in the district court. The problem with that argument is that lack of jurisdiction may be raised at any time, see United States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir.1998), and the seven-day limitation contained in Rule 35(c) is a jurisdictional restriction. United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), involved a prior version of Rule 35(b) which permitted the sentencing court to act within 120 days in order to reduce a sentence on substantial assistance grounds. The Supreme Court stated that the rule “authorizes district courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended.” Id. at 189, 99 S.Ct. 2235; see also, United States v. Orozco, 160 F.3d 1309, 1313 (11th Cir.1998) (recognizing that the one-year period in revised Rule 35(b) is a jurisdictional deadline). Just as the time period specified in Rule 35(b) is jurisdictional, so also is the time period specified in Rule 35(c). See United States v. Yost, 185 F.3d 1178, 1180 n. 3 (11th Cir.1999)(“Rule 35(c) authority is jurisdictional”)(dicta); United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2nd Cir.1995)(eollecting cases). The government’s next argument has more meat to it, but is still unavailing. The government contends that “the imposition of sentence,” as that phrase is used in the rule refers to the written imposition of sentence or entry of judgment, not to the oral imposition of sentence. If the seven-day jurisdictional period for correcting a sentence under Rule 35(c) does not begin to run until the sentence is reduced to writing or entered as part of the judgment, then the sentence in" }, { "docid": "22035695", "title": "", "text": "and its deadline to promote the finality of sentences and enable the parties to appeal a sentence promptly. The Advisory Committee note states that the Committee “believed that the time for correcting such errors should be narrowed within the time for appealing the sentence to reduce the likelihood of jurisdictional questions in the event of an appeal and to provide the parties with an opportunity to address the court’s correction of the sentence, or lack thereof, in any appeal of the sentenced[ ] A shorter period of time would also reduce the likelihood of abuse of the rule by limiting its application to acknowledged and obvious errors in sentencing.” Fed.R.Crim.P. 35 advisory committee’s note (1991). As the Rule 35 advisory committee note makes clear, the rule “is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or ... simply to change its mind about the appropriateness of the sentence ... [or] to reopen issues previously resolved at the sentencing hearing through the exercise of the court’s discretion with regard to the application of the sentencing guidelines.” Fed.R.Crim.P. 35 advisory committee’s note (1991). Importantly for this case, this Court has held that the seven-day time limit in Rule 35(a) is jurisdictional, and that “[ojutside of Rule 35(e)[ ] there exists no ‘inherent authority’ for a district court to modify a sentence.” United States v. Diaz-Clark, 292 F.3d 1310, 1319 (11th Cir.2002); see also United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir.2000) (noting the seven-day limitation contained in then Rule 35(c) “is jurisdictional”). In Diaz-Clark, we were “presented with the specific question of whether a district court has jurisdiction, after the expiration of the time provided by Rule 35 of the Federal Rules of Criminal Procedure and without any federal habeas corpus petition before it, to reduce a prisoner’s sentence based upon its conclusion that the sentence it had originally imposed was erroneous due to a grouping error under the [sentencing [guidelines.” 292 F.3d at 1311. The Diaz-Clark court noted that (1) the district court “did not act within Rule 35(c)’s" }, { "docid": "23136264", "title": "", "text": "Appeals interpreting Rule 35 following its amendments in both 1987, which significantly changed subsection (b), and in 1991, which added subsection (c)— that is — the text providing that a court may correct a sentence if it acts within seven days of sentencing. From 1991 until the present, ten other Courts of Appeals have held that Rule 35(a)’s seven-day time limit is jurisdictional. See, e.g., United States v. Penna, 319 F.3d 509, 510-12 (9th Cir.2003) (holding that a district court loses jurisdiction to act under Rule 35 after the seven-day time limitation expires); United States v. Austin, 217 F.3d 595, 597 (8th Cir.2000) (deciding that a district court had no jurisdiction to alter sentence after the seven-day time limit had expired); United States v. Werber, 51 F.3d 342, 348-49 (2d Cir.1995) (rejecting appel-lees’ argument that district court had “inherent authority” to correct sentence at any time, explaining that the 1991 amendments to Rule 35 imposed an absolute seven-day time limit); United States v. Fahm, 13 F.3d 447, 453-54 (1st Cir.1994) (deciding that Rule 35(c)’s seven-day time limit is jurisdictional and holding that the district court did not have inherent authority to correct a sentence after the expiration of that period). The Court of Appeals for the Fourth Circuit’s decision in United States v. Shank, 395 F.3d 466 (4th Cir.2005), is instructive. In Shank, the defendant had filed a motion to correct his sentence under former Rule 35(c), now Rule 35(a), within seven days of sentencing. Id. at 468. The district court failed to act on the motion within the seven days, but denied the motion several months later. Shank appealed, arguing that “if a defendant timely invokes Rule 85 (i.e., within seven days), the district court is vested with jurisdiction to dispose of that motion, regardless of how long it takes the court to do so.” Id. (internal citations omitted). The Court of Appeals rejected that argument, holding that Rule 85(a) “divests a district court of jurisdiction to correct sentencing errors more than seven days after sentencing.” Id. In reaching that conclusion, the court relied heavily upon its analysis of" }, { "docid": "23298118", "title": "", "text": "four months and over seven months after imposition of original sentences, were invalid because “outside the seven-day window of Rule 35(c).” See 51 F.3d at 348; accord Lopez, 26 F.3d at 520 (court lacked jurisdiction where resentencing occurred three months after original sentencing); United States v. Fahm, 13 F.3d 447, 454 (1st Cir.1994) (“Since the narrow window of opportunity allowed under Rule 35(c) closed [three months] before the district court reconsidered its original sentence ... the original sentence must be reinstated.”). According to Rule 35(c), the correction must be made within seven days of “the imposition of sentence.” The district court’s order assumed the seven-day period began running upon its oral pronouncement of Abreu-Cabrera’s sentence and the parties have continued to so assume in their briefing of the timeliness of Abreu-Cabrera’s resen-tencing. Yet the question of whether “imposition of sentence” refers to the oral pronouncement of a defendant’s sentence or the docket entry of a written sentence (which was not done with respect to the oral pronouncement of Abreu-Cabrera’s original sentence) is an unresolved question that has created a split among the courts of appeals. The Tenth Circuit has determined that the term “the imposition of sentence” refers to the oral pronouncement of sentence from the bench with the defendant present. See United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir.1994). Alternatively, the Seventh Circuit interprets the phrase to refer to the date judgment enters. See United States v. Clay, 37 F.3d 338, 340 (7th Cir.1994); cf. Fahm, 13 F.3d at 453 (noting the First Circuit’s dictum to that effect). Without deciding the issue, the Ninth Circuit has stated that the term is one of art “that generally refers to the time at which a sentence is orally pronounced,” although it suggests the intention of the drafters is that the seven-day period commences upon the formal entry of judgment. See United States v. Navarro-Espinosa, 30 F.3d 1169, 1170-71 (9th Cir.1994). We believe the only pertinent information to be gleaned from the Advisory Committee Notes is that the seven-day limitation was meant to restrict the period in which corrections could" }, { "docid": "23351827", "title": "", "text": "that a timely Rule 35(c) motion renders otherwise final order of district court nonfinal until disposition of that motion); Corey, 999 F.2d at 496 (same). Other circuits, however, have held that a district court’s jurisdiction over a Rule 35(c) motion can last no longer than the seven days that the district court has to act on the motion after the imposition of sentence. See, e.g., Morillo, 8 F.3d at 869 (the district court loses jurisdiction over a Rule 35(e) motion “when the district court decides a timeous Rule 35(c) motion or at the expiration of seven days next following imposition of sentence, whichever first occurs.”); United States v. Turner, 998 F.2d 534, 536 (7th Cir.1993) (holding that, if a timely Rule 35(c) motion is filed, a district court’s judgment does not become final until the seventh day after the imposition of sentence, when the district judge’s power to alter the sentence expires). We adopt the latter view. The government’s interpretation of Rule 35(c) is contrary to the plain words of Rule 35(c), which require the court, not the attorney, to “act.” See Sloan v. West, 140 F.3d 1255, 1261 (9th Cir.1998) (“If the intent of Congress is clear from the face of the statutory language, we must give effect to the unambiguously expressed Congressional intent.”). Moreover, that interpretation is inconsistent with our prior reading of Rule 35(c). See United States v. Portin, 20 F.3d 1028, 1030 n. 1 (9th Cir.1994) (“To correct a sentence pursuant to Rule 35(c), the sentencing court must act within seven days after imposition of sentence.”) (emphasis added). Here the district court did not “act” within seven days from the imposition of sentence and therefore lacked jurisdiction thereafter to modify Barragan’s sentence. Finally, the government argues that this court has authority under 28 U.S.C. § 2106 to vacate the May 29, 1997 “illegal” sentence and remand for imposition of the amended “legal” sentence, even though the district court lacked jurisdiction to impose that sentence. We disagree. Section 2106 gives this court the power to review a judgment that is “lawfully brought before it for review.” 28" }, { "docid": "22920977", "title": "", "text": "less than eleven days, intermediate Saturdays, Sundays, and legal holidays should be excluded. Fed.R.Crim.P. 45(a)(2). Therefore, for purposes of Rule 35(a) the seventh day after the district court orally pronounced sentence was July 6—the day that the court scheduled a hearing on Defendant’s motion to correct his sentence. Similarly, for purposes of Rule 35(a) the district court resentenced Defendant on the tenth day (the fifteenth calendar day) after the court orally sentenced Defendant. Because the July 9 resentenc-ing was conducted more than seven “Rule 35(a) days” following the June 24 sentencing, the district court lacked jurisdiction under Rule 35(a) to resentence Defendant at that time. The fact that Defendant made a motion for resentencing within the seven-day period, and that the district court scheduled a hearing on that motion within the seven-day period, did not extend the district court’s jurisdiction to dispose of the motion beyond the seven-day period. Rule 35(a) makes no provision for the extension of this period based on a timely motion by a party. The plain language of the rule— which states that “[w]ithin 7 days after sentencing, the court may correct a sentence,” Fed. R. Crim P. 35(a) (emphasis added)—makes clear that the seven-day period limits the time in which a court may impose a corrected sentence, not the time in which a party may make a motion for such a sentence. That Rule 35(a) speaks in terms of actions by a court, and not a party, is telling: The other portions of Rule 35 speak of actions by a party, so the omission of such terms in Rule 35(a) appears intentional. See Fed.R.Crim.P. 35(b)(1) (“Upon the government’s motion .... ”); Fed.R.Crim.P. 35(b)(2) (same). Many courts of appeals have rejected the argument that filing a motion to correct a sentence or scheduling a hearing on such a motion within seven days of the pronouncement of sentence can result in the extension of the period in which a court may act pursuant to Rule 35(a). See, e.g., United States v. Wisch, 275 F.3d 620, 626 (7th Cir.2001) (“The time limit is jurisdictional, and, furthermore, the motion" } ]

[ { "docid": "22270081", "title": "", "text": "Badillo-Rangel’s challenge to his conviction. Badillo-Rangel argues that the district court erred in denying his motion for judgment of acquittal on the charge of aiding and abetting the use and carrying of a firearm during a crime of violence. At the close of the prosecution’s case, Badillo-Rangel made a Rule 29 motion for judgment of acquittal because he argued that the prosecution failed to produce sufficient evidence to sustain a conviction on all counts against him. He renewed his motion prior to the charges being submitted to the jury. We review the district court’s denial of a motion for judgment of acquittal de novo. United States v. Floyd, 343 F.3d 363, 370 (5th Cir.2003) (citation omitted). We will affirm the jury’s verdict if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable' inferences from the evidence to support the verdict. Id. (citation omitted). In reviewing a challenge to a conviction based on the alleged insufficiency of the evidence, we must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted). “We do not consider whether the jury correctly determined guilt or innocence, [only] whether the jury made a rational decision.” United States v. Rivera, 295 F.3d 461, 466 (5th Cir.2002) (citation omitted); see also United States v. Moser, 123 F.3d 813, 820 (5th Cir.1997) (“The evidence need not exclude every reasonable hypothesis of innocence or be completely inconsistent with every conclusion except guilt, so long as a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.”). “ ‘Our review of the sufficiency of the evidence does not include a review of the weight of the evidence or of the credibility of the witnesses.’ ” Floyd, 343 F.3d at 370 (quoting United States v. Myers, 104 F.3d 76, 78-79 (5th Cir.1997))." } ]

[ { "docid": "4226569", "title": "", "text": "v. Bell, 678 F.2d 547 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983) as follows: It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence. Id. at 549 (footnote omitted). The evidence and the inferences to be drawn from it are viewed in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Lorence, 706 F.2d 512, 518 (5th Cir.1983). The standard of review is the same whether the evidence used to support the conviction is direct or circumstantial. United States v. Escobar, 674 F.2d 469, 477 (5th Cir.1982). To charge a defendant with perjury, an indictment must allege that: the defendant made a false material statement before a court with knowledge of its falsity____The test of materiality is whether the false testimony was capable of influencing the court on the issue before it. United States v. Oberski, 734 F.2d 1034, 1035 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 797, 83 L.Ed.2d 790 (1985). The issue before the grand jury was an investigation of the smuggling of marijuana into the United States from Mexico. In Count 1, Carpenter was charged with lying to the grand jury when he denied that he had flown to Mexico as a pilot for Barry Hogan to transport a quantity of marijuana. His conviction on this count is based on his answer to the questions set forth in Count 1 as follows: Q. All right. Tell us about Barry Hogan. Isn’t it a fact that you were going to be paid $15,000 for the 400-pound load of marijuana you were going to bring out of Mexico? A. No, sir, that’s not true at all. Q. Well, how much were you going to be paid? A. I wasn’t" }, { "docid": "20452708", "title": "", "text": "also on November 16,1999. Further, Wheeler testified that he made numerous trips to China to market the CPE process and that Liou funded all of these trips; thus the jury could reasonably infer that Liou’s usual practice was to arrange and fund business travel to China for his employees. Finally, the fact that Liou and Stoecker were in China on different dates is irrelevant to the question of whether Liou played any role in planning or funding the trip. And the jury was entitled to find that the fact that Stoecker’s credit card number appears on the itinerary was irrelevant in light of Stoecker’s explicit testimony that he did not pay for the trip and that his credit card was never charged. Although Liou argues that Stoecker’s testimony was inconsistent, assessing the credibility of witnesses is the sole province of the jury. United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir.1987). Based on Stoecker’s testimony and additional corroborating evidence, there is sufficient evidence in the record to support Liou’s perjury conviction. IV. For reasons stated above, we affirm the judgment of the district court. AFFIRMED. . Dow filed a civil lawsuit against Liou on July 1, 1999, alleging theft of trade secrets used in the production of its Tyrin CPE. . The term “trade secret,\" as defined by 18 U.S.C. § 1839(3), means: all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if— (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.... 18 U.S.C. § 1839(3)(A-B) (2006). . All three of these individuals cooperated with the Government and testified against Liou at trial. . Government Exhibit 39 — Dow Stade simplified Process Flow Diagram; Government Exhibit 40" }, { "docid": "4226568", "title": "", "text": "ROBERT MADDEN HILL, Circuit Judge: Mark Carpenter appeals from his convictions on three counts of perjury before a grand jury in violation of 18 U.S.C. § 1623 contending that the evidence was insufficient to support his convictions and arguing two theories of conflict of interest by his defense counsel. Finding the evidence to be sufficient and no conflict of. interest to have existed, we affirm. I. BACKGROUND Mark Carpenter was charged in a four-count indictment with perjury before a grand jury in violation of 18 U.S.C. § 1623. After a jury trial, Carpenter was found guilty on Counts 1, 2, and 3 and not guilty on Count 4. The district court sentenced Carpenter to three years imprisonment on Count 1 and five years probation on Counts 2 and 3, to commence upon expiration of the sentence in Count 1. Carpenter appeals his convictions on grounds of insufficient evidence and conflict of interest by his attorney. II. ANALYSIS A. Insufficient Evidence The standard of review for insufficiency of the evidence is set forth in United, States v. Bell, 678 F.2d 547 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983) as follows: It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence. Id. at 549 (footnote omitted). The evidence and the inferences to be drawn from it are viewed in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Lorence, 706 F.2d 512, 518 (5th Cir.1983). The standard of review is the same whether the evidence used to support the conviction is direct or circumstantial. United States v. Escobar, 674 F.2d 469, 477 (5th Cir.1982). To charge a defendant with perjury, an indictment must allege that: the defendant made a false material statement before a" }, { "docid": "20452707", "title": "", "text": "travel paid for that trip, was that the truth or not? [Stoecker, all answers] A. No, no, he had arranged through Katherine [Liou] to get my tickets for me. Q. And did Mr. Liou indeed know how your tickets were being paid for? A. I believe so, yes. Q. And did he know whether or not you even went to China in November of 1999? A. We discussed it, yes. Q. [When the jury] reads that he swore that he did not know you were in China in either November or December of 1999, was that the truth or not? A. No, it would not be. Documents introduced at trial confirmed the true source of the funding for Stoecker’s trip: the total cost reflected on Stoecker’s itinerary was $778; Li Chen Chao, a personal friend of Katherine Liou, wrote two checks — one for $778 and one for $10 — to Gateway Travel on November 16,1999; Katherine Liou then issued her a check for $788 — drawn from David and Katherine Liou’s bank account — also on November 16,1999. Further, Wheeler testified that he made numerous trips to China to market the CPE process and that Liou funded all of these trips; thus the jury could reasonably infer that Liou’s usual practice was to arrange and fund business travel to China for his employees. Finally, the fact that Liou and Stoecker were in China on different dates is irrelevant to the question of whether Liou played any role in planning or funding the trip. And the jury was entitled to find that the fact that Stoecker’s credit card number appears on the itinerary was irrelevant in light of Stoecker’s explicit testimony that he did not pay for the trip and that his credit card was never charged. Although Liou argues that Stoecker’s testimony was inconsistent, assessing the credibility of witnesses is the sole province of the jury. United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir.1987). Based on Stoecker’s testimony and additional corroborating evidence, there is sufficient evidence in the record to support Liou’s perjury conviction. IV. For" }, { "docid": "22315837", "title": "", "text": "applicable Guidelines range: thirty-three (33) months in prison, followed by three years of supervised release (with the sentences to run concurrently). The court also ordered the defendant to pay a special assessment of $150 and restitution in the amount of $179,502.07. II. ISSUES Initially, we are asked to consider and address whether the district court erred in denying the defendant’s Rule 29 motion for acquittal on all three counts of the indictment. Secondly, we must decide whether the district court improperly enhanced Hickok’s offense level, pursuant to § 3C1.1 of the Sentencing Guidelines, based on a finding that he obstructed justice by committing perjury at his trial. Our analysis of the first issue will require us to consider whether the Government introduced sufficient evidence from which a jury could determine that Hickok was guilty of mail fraud and conspiracy. Our discussion of the second issue involves two inquiries: (1) whether the district court committed clear error when it determined that the defendant made at least five false statements during his trial testimony, and (2) whether the district court failed to make the independent factual determinations necessary to establish that these statements were perjurious and therefore an obstruction of justice. III. DISCUSSION A. Sufficiency of the Evidence 1. Standard of Review Hickok challenges the sufficiency of the evidence introduced by the Government at his trial and asks this court to reverse his convictions for mail fraud and conspiracy. He follows in the footsteps of countless criminal defendants who have made similar arguments in this court, and, like them, he bears a “heavy burden,” United States v. James, 923 F.2d 1261, 1267 (7th Cir.1991), and faces a “nearly insurmountable hurdle.” United States v. Teague, 956 F.2d 1427, 1433 (7th Cir.1992). Usually, we consider the evidence in the light most favorable to the Government, defer to the credibility determinations of the jury, and overturn a verdict “ ‘[o]nly when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.’ ” Id. (quotation omitted); United States v. Bolen, 45 F.3d 140, 142" }, { "docid": "20452717", "title": "", "text": "51 (Pacific Richland Reactor Equipment Sheets) and commented on the different materials called for in the designs; and he would have testified that the use of centrifuges, spargers, and \"Christmas tree'1 manifolds are common in the industry. . See, e.g., United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir.1994) (“By itself, ... a general description of the excluded evidence would not preserve error.”); Stockstill v. Shell Oil Co., 3 F.3d 868, 872 (5th Cir.1993) (concluding that in absence of offer of proof, court of appeals could not assess whether exclusion affected substantial right); United States v. Harrelson, 754 F.2d 1153, 1178-79 (5th Cir.1985) (finding, where defendant made no offer of proof as to contents of excluded evidence, that appellate court was precluded from finding error in the exclusion); James v. Bell Helicopter Co., 715 F.2d 166, 174-75 (5th Cir.1983) (holding that when plaintiff's statements concerning excluded evidence were so “general as to be meaningless,” the court will \"decline to speculate on the complicated questions presented without sufficient knowledge of the true character of the evidence excluded”). . On appeal, Liou also argued that the district court erred in denying his motion for new trial. Because Liou’s motion for new trial is premised on his two previous arguments addressed above: that the district court improperly excluded the testimony of Oster-miller and the verdict as to Liou’s perjury count (Count 2) was against the weight of the evidence, it is unnecessary to address this argument further." }, { "docid": "20452706", "title": "", "text": "deposition in which he was asked: (1) whether he assisted “in any way” in arranging for Stoecker’s travel to China in 1999; (2) whether he arranged payment “in any way or manner” for Stoecker’s tickets, accommodations, and travel to China; (3) if he knew that his wife arranged “in any way” for the payment of Stoecker’s travel expenses to China; (4) if he knew whether Stoecker utilized Gateway Travel to take any trips to China; and (5) if he knew whether Stoecker went to China in either November or December of 1999. Viewing all evidence in the light most favorable to the verdict, there was sufficient evidence in the record to support Liou’s perjury conviction. The jury had the opportunity to hear Stoecker’s testimony concerning his travel to China. Namely: Q. Now, the jury has already seen ... a portion of the deposition of Mr. Liou where he denied assisting to arrange for your [Stoecker’s] travel to China in November of 1999.... [W]hen he swore that he did not arrange to have your tickets and travel paid for that trip, was that the truth or not? [Stoecker, all answers] A. No, no, he had arranged through Katherine [Liou] to get my tickets for me. Q. And did Mr. Liou indeed know how your tickets were being paid for? A. I believe so, yes. Q. And did he know whether or not you even went to China in November of 1999? A. We discussed it, yes. Q. [When the jury] reads that he swore that he did not know you were in China in either November or December of 1999, was that the truth or not? A. No, it would not be. Documents introduced at trial confirmed the true source of the funding for Stoecker’s trip: the total cost reflected on Stoecker’s itinerary was $778; Li Chen Chao, a personal friend of Katherine Liou, wrote two checks — one for $778 and one for $10 — to Gateway Travel on November 16,1999; Katherine Liou then issued her a check for $788 — drawn from David and Katherine Liou’s bank account —" }, { "docid": "11254559", "title": "", "text": "faith belief' that his statements were true or his omissions not misleading is insufficient. See Senese, 237 F.3d at 824 n. 2. As our court of appeals has often observed, “an ‘empty head but a pure heart is no defense.’ ” Sullivan-Moore 406 F.3d at 470 (quoting Chambers v. American Trans Air, Inc., 17 F.3d 998, 1006 (7th Cir.1994)); Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir.1986). In this case, both requirements for Rule 9011 sanctions — false statements of fact and culpable carelessness in making them — are satisfied. b. False Statements The first requirement is satisfied because Liou made false statements of fact to the court — 317 of them to be precise. In each of the 317 cases, Liou falsely stated in his fee application that he and the debtor had entered into the MRA. By his own admission, those statements were false because Liou had not entered into the MRA. He had instead entered into a different agreement — the MRA modified with a written “addendum” of his own creation that allowed him to charge additional fees in connection with the bankruptcy case, fees over and above the flat fee available under this district’s flat fee arrangement. Liou’s modification of the MRA with this addendum violated the fundamental premise of the arrangement: that the attorney and debtor enter into the MRA and only the MRA, and the attorney therefore receives a flat fee of $3,500 and only the flat fee for handling the entire case. All of this is evident from the MRA itself. It obligates the attorney to provide, not just the specific services listed, but “any other legal services necessary for the administration of the case.” {See, e.g., Ex. A to Resp. Ex. 30). It also declares that “[f]or all of the services outlined above, the attorney will be paid a fee of $3,500.00,” permits additional fees only “[i]n extraordinary circumstances” (and with an additional application), and prohibits the attorney from receiving fees “directly from the debtor after the filing of the case.” {Id.). By repeatedly stating in fee applications that he and" }, { "docid": "20452681", "title": "", "text": "Chinese companies, testified that Liou specifically “wanted Dow technology” from him and that Liou agreed to pay him $50,000 in cash for his assistance. He testified that a process manual provides an overview of the chemical process and that it gives descriptions of the vessels, the vessels’ sizes, and what each one does in the operation and that Liou needed a process manual for the Chinese project because it was required as part of the contract. Stoecker, who had authored substantial portions of the Dow process manual, testified that he plagiarized large parts of the Dow manual to produce the process manual -for Pacific Richland and that Liou knew the information was coming from Dow and is the reason Liou had promised to pay Stoecker up to $50,000. Stoecker also testified that after hearing rumors that Dow was about to file a civil suit against them, he and Wheeler deleted files off of their Pacific Richland computers; Wheeler informed Stoecker that Liou knew that they were deleting files. Stoecker further asserted that after the initiation of Dow’s civil suit he and Liou agreed they were going to fight the suit and discussed how to lie. Finally, Stoecker testified that Liou later moved to Canada and told him that he did so to put himself outside of the reach of United States law. Meyer admitted that he personally provided secret Dow CPE technology to Liou to sell to-the Chinese companies. Meyer testified that when he saw that they were using Dow’s P & IDs, he approached Liou with his concerns, but Liou placated him by telling him that he should not worry about it and that he had checked everything legally. Akers, a Dow engineer at the time of trial and the former leader of Dow Plaque-mine’s CPE process research group, testified that the Dow CPE process was “absolutely not” publicly available, and that Dow employees, including Liou, would have understood that fact. Akers also examined Pacific Richland’s flow sheet of the CPE process and testified that the flow sheet encompassed characteristics from both the Stade Dow plant and Plaquemine Dow" }, { "docid": "20452705", "title": "", "text": "the evidence was insufficient to support his perjury conviction. In reviewing the sufficiency of the evidence, this court considers whether “any reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt.” United States v. Martinez, 975 F.2d 159, 161 (5th Cir.1992). The evidence is viewed in the light most favorable to the verdict. United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir.2005). A defendant seeking reversal of a jury’s determination of guilt bears a “heavy burden.” United States v. Greer, 939 F.2d 1076, 1090 (5th Cir.1991). To obtain a perjury conviction, the Government must prove: (1) that the defendant’s statements were material; (2) false; (3) and at the time the statements were made the defendant did not believe them to be true. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987). Liou does not appear to contest that his statements were material, but rather he argues that the statements he made were not false. Count 2 charged Liou with lying in response to questions in his civil deposition in which he was asked: (1) whether he assisted “in any way” in arranging for Stoecker’s travel to China in 1999; (2) whether he arranged payment “in any way or manner” for Stoecker’s tickets, accommodations, and travel to China; (3) if he knew that his wife arranged “in any way” for the payment of Stoecker’s travel expenses to China; (4) if he knew whether Stoecker utilized Gateway Travel to take any trips to China; and (5) if he knew whether Stoecker went to China in either November or December of 1999. Viewing all evidence in the light most favorable to the verdict, there was sufficient evidence in the record to support Liou’s perjury conviction. The jury had the opportunity to hear Stoecker’s testimony concerning his travel to China. Namely: Q. Now, the jury has already seen ... a portion of the deposition of Mr. Liou where he denied assisting to arrange for your [Stoecker’s] travel to China in November of 1999.... [W]hen he swore that he did not arrange to have your tickets and" }, { "docid": "23662744", "title": "", "text": "the inferences therefrom in a light most favorable to the government and determines whether a rational trier of fact could have found — beyond a reasonable doubt — that the government proved the defendant’s guilt on each element of the charged offense. United States v. Velgar-Vivero, 8 F.3d 236, 239 (5th Cir.1993), cert. denied sub. nom., Rivas-Cor-dova v. United States, — U.S. -, 114 S.Ct. 1865, 128 L.Ed.2d 486 (1994). With these considerations in mind, we turn to the evidence against Watkins. Watkins paid $60 to borrow the car, initiated the trip to Fort Worth and recruited Crain and Thompson to accompany him. With Watkins’ permission, Crain assisted in the driving. Thompson’s testimony indicates that Watkins made phone calls, went outside to meet with a known drug dealer, and made the decision of when they would leave Fort Worth. Watkins physically possessed the bag containing the cocaine, made the statement, “I got this dope,” and asked for Thompson’s help in hiding it. We hold that the evidence was sufficient to support conviction of Watkins for conspiracy, and we therefore AFFIRM that conviction. Sufficiency of Evidence as to Crain — Conspiracy Crain contends that the evidence was insufficient to convince a rational jury of his guilt beyond a reasonable doubt on either the conspiracy count or the possession count. We first address the evidence on conspiracy. The government introduced circumstantial evidence tending to prove that Crain knew that Watkins was going to Fort Worth to obtain drugs, and that with this knowledge Crain agreed to accompany Watkins on the trip and help with the driving. The circumstantial evidence of the conspiracy includes these facts: (1) the men drove all the way to Fort Worth, yet stayed there less than two hours, and there was no evidence that any of them thought this was unusual, (2) Crain knew that Amtonio Harris was a drag dealer, yet called him a “friend” and told police the three men had gone to Fort Worth to see him, (3) Crain was present when Watkins made several phone calls, then went outside briefly to meet with Harris" }, { "docid": "1486961", "title": "", "text": "1139 (5th Cir.1978), a case in which the Fifth Circuit affirmed a conviction despite a delay of fifteen months which the court found to be prejudicial. Defendant’s reliance on Herman is misplaced, and the facts of this case clearly show that defendant was not denied a speedy trial under the Sixth Amendment to the United States Constitution. B. Defendant next contends that the proof in this case was insufficient to sup port his convictions. When insufficiency of the evidence is alleged as a ground for appeal, we determine “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Counts 1 and 2 of the indictment charged defendant with possessing and receiving a firearm in violation of 18 U.S.C. § 922(g). As to these counts, the evidence showed that defendant’s fingerprint was on the pawncard made out at the time defendant pawned the pistol and that his signature appeared on the ATF Form 4473 he was required to execute upon redeeming the pistol. Contrary to defendant’s assertions, this evidence, together with the testimony of the pawnshop personnel concerning their record keeping routines, is sufficient evidence that defendant was the person who pawned and redeemed the pistol. Moreover, John Williams' testimony to the effect that defendant solicited him to commit perjury indicates consciousness of guilt on defendant’s part. Viewed in the light most favorable to the government, there is ample evidence in this case that a rational trier of fact could rely on to convict. As to Count 3, which charges that defendant made a false statement on ATF Form 4473, defendant argues that there was no evidence introduced to show that he wrote the word “no” in response to question 8B. The jury in this case could rationally have inferred defendant’s guilt" }, { "docid": "2297166", "title": "", "text": "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, the government must prove that the defendant (1) filed a return, statement, or other document that was false as to a material matter; (2) signed the return, statement or other document under penalty of perjury; (3) did not believe the return, statement or other document was true as to every material matter; and (4) willfully subscribed to the false return with the specific intent to violate the law. United States v. Bishop, 412 U.S. 346, 350, 93 S.Ct. 2008, 2012, 36 L.Ed.2d 941 (1973); United States v. Marabelles, 724 F.2d 1374, 1380 (9th Cir.1984). At trial, Hanson admitted to signing the false returns under penalty of perjury. He conceded that the amounts he reported on his 1989 1040 form were incorrect. With respect to the falsity of the forms 1096 and 1099, the five FHA officials Hanson reported having made payments to testified that they never received the purported payments. Payment amounts reported on forms 1096 and 1099 and refund amounts claimed on a tax return are clearly material. Thus, the evidence supported the first" }, { "docid": "20452703", "title": "", "text": "that he did not know the material was being stolen including testimony that Liou and the others worked together in small working quarters and were able to complete the entire Chinese design package in only a few months. And there was testimony that after Dow filed a civil suit against Liou and his co-conspirators, Liou took extensive steps to cover his tracks and destroy evidence which included dumping boxes of documents in a parking lot dump ster, allowing Wheeler and Stoecker to delete information from Pacific Richland computers, discussing “how to lie” with Stoecker, and moving to Canada. We are persuaded beyond a reasonable doubt that Ostermiller’s testimony would have given Liou no help in persuading the jury to disregard the numerous exhibits offered by the Government or to resolve in his favor the conflict between his testimony and that of his co-conspirators. In summary, given the overwhelming evidence that Liou and, his co-conspirators stole trade secrets from Dow and that Liou believed he was stealing trade secrets, we are persuaded that Ostermiller’s testimony would have been of little or no benefit to the defendant. We therefore conclude that the exclusion of Ostermiller did not affect the verdict. III. We now turn to Liou’s perjury conviction. Following the initiation of the civil suit by Dow, Liou and Stoecker continued to travel to China. Specifically, in November 1999, Liou allegedly paid for Stoecker to travel to China to meet with the company China Tianteng. Stoecker testified that Liou arranged for his trip and paid for his ticket through Liou’s wife, Katherine Liou; Katherine Liou, in turn, had her friend Li Chen Chao pay for the ticket and then Katherine immediately reimbursed her. On January 16, 2001, Liou was deposed in connection with the civil suit. When asked about Stoecker’s trip, Liou denied that he had in any way arranged for or paid for the travel, that his wife had arranged payment in any way, or that he even knew that Stoecker went on the trip. Liou’s perjury charge was based on these statements made in his civil deposition. Liou argues that" }, { "docid": "21479677", "title": "", "text": "and direct evidence to a moral certainty and beyond a reasonable doubt that the defendant committed wilful and corrupt perjury”. Smith v. United States, 169 F.2d 118, 121 (6th Cir. 1948); Beckanstin v. United States, 232 F.2d 1 (5th Cir. 1956). Defendant contends that the District Court’s instruction requiring only that the prosecution prove defendant’s guilt beyond the customary “reasonable doubt” to prevail fell below the higher standard of proof demanded in a perjury ease. The effect of which, the defendant argues, permitted the jury to misuse much of the evidence which supported the more logical hypothesis that defendant testified truthfully before the grand jury or even if some of his statements were false, they were made mistakenly and without corrupt motive due to his failing memory. We do not believe the jury was led astray by the court’s inelaborate charge on burden of proof. Any definitive omission, we think, was corrected by its detailed instruction forbidding a conviction unless the jury found independent evidence corroborating the testimony of the government’s chief witness Elmer who furnished the direct proof that defendant testified falsely before the grand jury when he stated he had never purchased from Elmer any guns which the latter delivered to him at the Costanzo house in Gunnison, Colorado. Furthermore, the court carefully spelled out the alternatives the jury could consider in evaluating the witnesses’ testimony based on their credibility. The jury was correctly instructed it could credit a portion or reject all of the testimony of a witness it believed had not testified truthfully to a material matter. While it is arguable that most of the testimony of witnesses Frank and Lena Costanzo is consistent with defendant’s innocence, this Court cannot invade the jury’s province to assign whatever weight, if any, to such testimony. Therefore, a review of all the court’s instructions in their combined context does not convince us that the court committed reversible error in charging the jury as to the government’s burden of proof in a prosecution for perjury. Cf. Newman v. United States, 331 F.2d 968, 971 (8th Cir. 1964). Defendant also challenges" }, { "docid": "20452702", "title": "", "text": "testified that Liou paid them hundreds, of thousands of dollars to obtain the details of Dow’s process. The witnesses explained in detail how Pacific Richland relied on confidential Dow materials including Dow’s process manual, flow charts, and equipment, and other diagrams related to the complex Dow process specifically because the Chinese - companies wanted Dow technology. In the face of this testimony and without explanation, Liou stated baldly that he did not know that these witnesses were stealing this information from Dow; he assumed they were developing the process independently and on their own. Yet nothing in the record supports the contention that Liou’s co-conspirators relied on information regarding CPE manufacturing in the public domain to independently produce or reverse engineer the design package sold to the Chinese companies. In fact, given the overwhelming testimony and documentary evidence produced at trial, defense counsel, in closing arguments, had little choice but to admit that Liou’s cohorts, Wheeler, Stoecker, and Meyer, “all took trade secret information from Dow.” The Government produced other evidence that rebutted Liou’s contention that he did not know the material was being stolen including testimony that Liou and the others worked together in small working quarters and were able to complete the entire Chinese design package in only a few months. And there was testimony that after Dow filed a civil suit against Liou and his co-conspirators, Liou took extensive steps to cover his tracks and destroy evidence which included dumping boxes of documents in a parking lot dump ster, allowing Wheeler and Stoecker to delete information from Pacific Richland computers, discussing “how to lie” with Stoecker, and moving to Canada. We are persuaded beyond a reasonable doubt that Ostermiller’s testimony would have given Liou no help in persuading the jury to disregard the numerous exhibits offered by the Government or to resolve in his favor the conflict between his testimony and that of his co-conspirators. In summary, given the overwhelming evidence that Liou and, his co-conspirators stole trade secrets from Dow and that Liou believed he was stealing trade secrets, we are persuaded that Ostermiller’s testimony would" }, { "docid": "10035822", "title": "", "text": "Wiley Fairchild’s request, spoke about Drew Fairchild to Bud Holmes? A. He certainly had, absolutely. To obtain a perjury conviction, the Government must prove that the defendant’s statements were material, that they were false, and that, at the time they were made, the defendant did not believe them to be true. United States v. Fulbright, 804 F.2d 847, 851 (5th Cir.1986). The materiality of appellant’s challenged grand jury testimony was a question of law for the trial judge. United States v. Thompson, 637 F.2d 267, 268-69 (5th Cir.1981). Appellant does not challenge the correctness of the district judge’s holding that the subject matter of appellant’s testimony was material to the grand jury’s investigation. The evidence on the remaining issues must, of course, be viewed in a light that is most favorable to the Government, with all reasonable inferences and credibility choices made in support of the jury’s verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Lamp, 779 F.2d 1088, 1092 (5th Cir.), cert. denied, — U.S. -, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986). The standard is the same whether the evidence is direct or circumstantial. Glasser, supra, 315 U.S. at 80, 62 S.Ct. at 469; United States v. Escobar, 674 F.2d 469, 477 (5th Cir.1982). We did not see or hear the witnesses testify; the jury did. After viewing the cold and impersonal record in the light most favorable to the Government, we must affirm if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see United States v. Shaw, 701 F.2d 367, 392 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). This is so because a jury may choose its verdict among reasonable constructions of the evidence so long as the evidence establishes guilt beyond a reasonable doubt. United States v. Thomas, 768 F.2d 611, 614 (5th Cir.1985) (quoting United States v. Bell, 678 F.2d 547," }, { "docid": "20452704", "title": "", "text": "have been of little or no benefit to the defendant. We therefore conclude that the exclusion of Ostermiller did not affect the verdict. III. We now turn to Liou’s perjury conviction. Following the initiation of the civil suit by Dow, Liou and Stoecker continued to travel to China. Specifically, in November 1999, Liou allegedly paid for Stoecker to travel to China to meet with the company China Tianteng. Stoecker testified that Liou arranged for his trip and paid for his ticket through Liou’s wife, Katherine Liou; Katherine Liou, in turn, had her friend Li Chen Chao pay for the ticket and then Katherine immediately reimbursed her. On January 16, 2001, Liou was deposed in connection with the civil suit. When asked about Stoecker’s trip, Liou denied that he had in any way arranged for or paid for the travel, that his wife had arranged payment in any way, or that he even knew that Stoecker went on the trip. Liou’s perjury charge was based on these statements made in his civil deposition. Liou argues that the evidence was insufficient to support his perjury conviction. In reviewing the sufficiency of the evidence, this court considers whether “any reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt.” United States v. Martinez, 975 F.2d 159, 161 (5th Cir.1992). The evidence is viewed in the light most favorable to the verdict. United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir.2005). A defendant seeking reversal of a jury’s determination of guilt bears a “heavy burden.” United States v. Greer, 939 F.2d 1076, 1090 (5th Cir.1991). To obtain a perjury conviction, the Government must prove: (1) that the defendant’s statements were material; (2) false; (3) and at the time the statements were made the defendant did not believe them to be true. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987). Liou does not appear to contest that his statements were material, but rather he argues that the statements he made were not false. Count 2 charged Liou with lying in response to questions in his civil" }, { "docid": "23109636", "title": "", "text": "time of the Principe’s departure from the port in Naples. The questions preceding the one at issue here involved the damage done to the Principe, which DeGeorge himself acknowledged during the deposition was clearly done by power tools. Immediately after asking whether DeGeorge had knowledge of power tools on board the Principe, the examiner asked DeGeorge whether “Mr. Libovich or any of the two persons with him [had] any power tools in their black duffle bags?” Thus, the questions essentially progressed according to the following sequence: first, the examiner sought to establish that serious damage had been done to the Principe; second, he wanted to determine whether the tools used to inflict the damage were brought on board by DeGeorge himself; and third, if not, he sought DeGeorge’s explanation for the source of the tools. Because the jury could have concluded beyond a reasonable doubt that DeGeorge understood the question in Count Twelve as involving the second step of this sequence, we affirm De-George’s conviction on this count. B. The perjury charge in Count Sixteen involved the following question and answer: Q. Did you purchase any power cutting tools and have them on board the Principe? A. No, sir. DeGeorge argues that there was not sufficient evidence to show that he personally purchased the power tools. DeGeorge’s argument is utterly without merit. Ebeling specifically testified: “Mr. Falco and Mr. DeGeorge went into the hardware store and they bought drills and hammers and electric saws and tools.” Likewise, Falco was asked: “Who bought the tools?” He replied: “Mr. DeGeorge.” This evidence is clearly sufficient to support the jury’s verdict. C. DeGeorge next argues that all five perjury convictions must be reversed because the allegedly false statements were not material to the civil case in which they were made. See United States v. Lean-Reyes, 177 F.3d 816, 819 (9th Cir.1999) (“In a perjury case, the government must prove that the statement made by the defendant in the prior tribunal and alleged to be false was material.”) “A statement is material if it has a natural tendency to influence, or was capable of" }, { "docid": "7117170", "title": "", "text": "review his claim de novo. United States v. Naghani, 361 F.3d 1255, 1261 (9th Cir.2004). There is sufficient evidence if, viewing the evidence in the light most favorable to the government, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks omitted); see also United States v. Tobias, 863 F.2d 685, 687-88 (9th Cir.1988). Specifically, when a perjury defendant contends that he made no false statement, “Our central task is to determine whether the jury could conclude beyond a reasonable doubt that the defendant understood the question as did the government and that, so understood, the defendant’s answer was false.” United States v. Sainz, 772 F.2d 559, 562 (9th Cir.1985) (internal quotation marks omitted). Camper was convicted of violating 18 U.S.C. § 1001, which prohibits giving false information in any matter within the jurisdiction of a department or agency of the United States. The government must prove five elements to obtain a conviction for making a false statement under § 1001:(1) a statement, (2) falsity, (3) materiality, (4) specific intent, and (5) agency jurisdiction. United States v. Boone, 951 F.2d 1526, 1544 (9th Cir.1991). Camper concedes that all elements are met except for the element of falsity. He argues that his conviction must be reversed under Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), because his response to the question was literally true. Under Bronston, a defendant cannot be convicted for perjury when his statement was literally true under the only possible interpretation. Bronston was asked whether he had any Swiss bank accounts, and he answered, “The company had an account there for about six months, in Zurich.” Id. at 354, 93 S.Ct. 595. The statement was indisputably true, as far as it went, but Bronston neglected to mention that he also had once had a personal Swiss bank account. Id. Bronston was prosecuted for perjury, but the Supreme Court reversed his conviction because he had not made a false statement. Id. at 362, 93 S.Ct. 595. Bronston’s rule is limited to" } ]

[ { "docid": "2424240", "title": "", "text": "civil forfeiture of the currency. The case was reassigned to Judge Vuka-sin pursuant to Local Rule 205-2 as a “related” ease. Robinson filed a claim for the defendant funds on January 31, 1991. Robinson’s subsequent motion for the recusal of Judge Vukasin was denied, as was his motion to dismiss the complaint. His motion for appointment of counsel was also denied. On July 28, 1993, the district court denied Robinson’s motion for summary judgment, and granted the United States’ cross-motion for summary judgment. Robinson timely appeals. II.STANDARD OF REVIEW We review the denial of a recusal motion for abuse of discretion. Sewer Alert Comm. v. Pierce County, 791 F.2d 796, 798 (9th Cir.1986). The district court’s determination of whether a delay in the initiation of forfeiture proceedings is unconstitutional is reviewed de novo. United States v. $874,938.00 U.S. Currency, 999 F.2d 1323, 1325 (9th Cir.1993). A grant of summary judgment is reviewed de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). Id. Whether a defendant’s double jeopardy rights have been violated is a question of law reviewed de novo. United States v. Horodner, 993 F.2d 191, 193 (9th Cir.1993). Whether Robinson has a Sixth Amendment right to counsel in this civil forfeiture proceeding is reviewed de novo. See United States v. Quemado, 26 F.3d 920, 923 (9th Cir.1994). The district court’s denial of Robinson’s motion for appointment of counsel under 28 U.S.C. § 1915(d) is reviewed for abuse of discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986). III.DISCUSSION A. Denial of the Motion for Recusal Robinson contends that Judge Vukasin erred by denying his recusal motion, which alleged a “demonstrated pattern of bias, prejudice and prejudicial misconduct” in the two related criminal eases which had been heard before the judge. This contention lacks merit. Title 28 U.S.C. § 144 provides for the recusal of the judge upon the filing by a party of a “sufficient affidavit that the judge ... has a personal" } ]

[ { "docid": "22456535", "title": "", "text": "failure to state a claim, determining that neither a tester in Smith’s circumstance nor an organization like DRAC had standing to assert rights under the FHAA. DRAC subsequently moved for reconsideration under Fed.R.Civ.P. 59(e). In that motion, DRAC alerted the court that Smith had passed away, and asked that the court reconsider its motion to amend the complaint to include supplemental facts in support of its own representational and organizational standing in light of Smith’s death. The district court denied DRAC’s reconsideration motion without articulating the basis for denial. DRAC appeals both the dismissal and the denial of the motion for reconsideration. We have jurisdiction over both orders under 28 U.S.C. § 1291 because the post-judgment denial of reconsideration is an “integral part” of the final judgment on the merits, even though not entered concurrently with that judgment. See United States v. One 1986 Ford Pickup, 56 F.3d 1181, 1184-85 (9th Cir.1995) (per curiam). Standard Of Review We review the denial of a motion for reconsideration for abuse of discretion, Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000). The same standard of review applies to denial of leave to amend. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.2002). Whether such a denial rests on an inaccurate view of the law and is therefore an abuse of discretion, see United States v. State of Washington, 98 F.3d 1159, 1163 (9th Cir.1996), requires us to review the underlying legal determination de novo. See Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc) (per curiam). Because it is the only facially viable basis for denial of DRAC’s motion to reconsider, we assume that denial was premised on the futility of amendment in light of the district court’s legal ruling on the scope of § 3604(f)(2). As the Supreme Court has explained: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to" }, { "docid": "6041877", "title": "", "text": "dismiss the complaint under Rule 12(b)(6). The district court allowed Connerly and the American Civil Rights Foundation to intervene. The court dismissed the U.C. Regents on sovereign immunity grounds, which Plaintiffs have not appealed. The district court then denied the motions to dismiss by former Governor Schwarzenegger and Yudof. The court ruled that the governor and Yudof were not immune from suit and were proper defendants because they were sufficiently connected to the enforcement of section 31 through their respective roles as President of the U.C. Regents and President of the University. In a separate order, the district court dismissed with prejudice both of Plaintiffs’ claims, holding that it was bound by Wilson II to uphold the constitutionality of section 31. Plaintiffs appeal the dismissal of their claims, and Yudof cross-appeals the district court’s decision to deny him state immunity and to keep him in the suit. Governor Brown was then substituted as a defendant. II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction pursuant to 28 U.S.C. § 1291. We “review de novo a district court’s order granting a motion to dismiss under Rule 12(b)(6),” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir.2011). A denial of Eleventh Amendment immunity is also reviewed de novo. Eason v. Clark Cnty. Sch. Dist., 303 F.3d 1137, 1140 (9th Cir.2002). We review a district court’s decision to dismiss with prejudice for abuse of discretion. Steams v. Ticketmaster Corp., 655 F.3d 1013, 1018 (9th Cir.2011). III. DISCUSSION A. Because our precedent dictates that we resolve an Eleventh Amendment immunity claim before reaching the merits, we first address Yudof s cross-appeal. See In re Jackson, 184 F.3d 1046, 1048 (9th Cir.1999). Yudof argues that the district court erred in denying him Eleventh Amendment immunity. We disagree. “The Eleventh Amendment erects a general bar against federal lawsuits brought against a state.” Porter v. Jones, 319 F.3d 483, 491 (9th Cir.2003). It does not, however, bar actions for prospective declaratory or injunctive relief against state officers in their official capacities for their alleged violations of federal law. See Ex parte Young, 209 U.S. 123, 155-56, 28" }, { "docid": "1564475", "title": "", "text": "a claim. In re Dura Pharm., slip op. at 15. The district court reasoned further that because the February 24 announcement did not mention the Albuterol Spiros device, any omissions or misleading statements about this device could not be said to have caused the decline in price. Therefore, the district court ruled that the loss causation element was not met. Turning to Dura’s statements regarding Ceclor CD sales made during the class period, the district court found that Appellants’ allegations in the SAC were not sufficient to indicate that these statements were false and made with knowledge of their falsity. Id. at 20. The district court therefore held that the allegations in the SAC were not sufficient to withstand a motion to dismiss based on the scienter requirement for a § 10(b) violation. Id. The district court then dismissed the complaint with prejudice “[bjecause the Plaintiffs have had an opportunity to amend the complaint to meet the pleading requirements under the PSLRA and Silicon Graphics.” Id. at 28. This appeal followed, and we have jurisdiction under 28 U.S.C. § 1291. DISCUSSION A complaint’s dismissal under FRCP 12(b)(6) is reviewed de novo. See Howard v. Everex Sys., 228 F.3d 1057, 1060 (9th Cir.2000). And on review, the court must accept the complaint’s well-pleaded allegations as true and construe them in the light most favorable to the plaintiff. See In re Silicon Graphics Sec. Litig., 183 F.3d 970, 983 (9th Cir.1999). A district court’s denial of leave to amend is reviewed for abuse of discretion. See In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1097 (9th Cir.2002). In order for plaintiffs to properly allege a claim brought under § 10(b) of the Securities Exchange Act of 1934, they must state the following: (1) defendants made a false statement or omission with regard to a material fact; (2) in connection with the purchase or the sale of a security; (3) with scienter; (4) upon which plaintiffs reasonably relied; and (5) that proximately caused the alleged loss. See Binder v. Gillespie, 184 F.3d 1059, 1063 (9th Cir.1999). Loss Causation “The causation requirement in" }, { "docid": "20098873", "title": "", "text": "See 28 U.S.C. § 1346(a)(2). After the district court issued its judgment, Janicki sought reconsideration. It requested that the district court allow it to amend its complaint and that the court then transfer the amended complaint to the Claims Court. See 28 U.S.C. § 1631. The district court denied the motion, and this appeal ensued. STANDARD OF REVIEW We review de novo a decision to dismiss a complaint for lack of jurisdiction. See Reebok Int’l, Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 554 (9th Cir.1992); Hooker v. United States Dep’t of Health & Human Servs., 858 F.2d 525, 529 (9th Cir.1988). We review a denial of a motion to amend a complaint for an abuse of discretion. See Sorosky v. Burroughs Corp., 826 F.2d 794, 804 (9th Cir.1987). Similarly, we review decisions involving pretrial scheduling orders issued pursuant to Federal Rule of Civil Procedure 16 for an abuse of discretion. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir.1992). We also review a district court’s refusal to transfer a case pursuant to 28 U.S.C. § 1631 for an abuse of discretion. See Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.1990). JURISDICTION The district court determined that because the CDA created a comprehensive remedial scheme for breaches of contract by the federal government, it did not have subject matter jurisdiction over the Bivens action. While we agree with the accuracy of the premise, we cannot agree with the particular conclusion. It is clear that district courts do have jurisdiction over Bivens actions. Those actions are brought against employees of the federal government in their individual capacities and are brought to redress violations of citizens’ constitutional rights. See Bivens, 403 U.S. at 395-96, 91 S.Ct. at 2004-05. They are firmly within the subject matter jurisdiction of the district courts. It is true that Janicki cannot state a cause of action in this case, but that inability did not deprive the district court of jurisdiction. See Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (“Jurisdiction ... is not defeated ... by" }, { "docid": "23042465", "title": "", "text": "The Amended Complaint After the dismissal of its original complaint, and nearly two years after its filing, the Band moved for leave to file an amended complaint. The district court denied the motion, citing the inordinate delay, prejudice to the defendants, the fact that the amended complaint would greatly change the nature of the litigation, and the potential futility of the claims. Finding no abuse of discretion, Thomas-Lazear v. FBI, 851 F.2d 1202, 1206 (9th Cir.1988), we affirm. It is true that leave to amend “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), and this policy is to be applied with extreme liberality. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). In this ease, however, the district judge was justified in exercising his discretion not to permit the amendment. The delay of nearly two years, while not alone enough to support denial, is nevertheless relevant. Loehr v. Ventura County Community College Dist., 743 F.2d 1310,1319-20 (9th Cir.1984). The new claims set forth in the amended complaint would have greatly altered the nature of the litigation and would have required defendants to have undertaken, at a late hour, an entirely new course of defense. Again, this factor is not fatal to amendment, DCD Programs, Ltd., 833 F.2d at 186, but it enters into the balance. The new federal claims were based upon the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1968 (1982), 25 U.S.C. § 81 (regulating contracts with tribes), criminal depredation and trespass statutes, 18 U.S.C. §§ 1160 and 1163, and 42 U.S.C. § 1985. In light of the radical shift in direction posed by these claims, their tenuous nature, and the inordinate delay, we conclude that the district court did not clearly abuse its discretion in denying leave to amend. In affirming the trial court’s exercise of its discretion, we recognize that the denial of leave to amend occurred after the court had dismissed all claims in the original complaint for lack of jurisdiction. Our ruling that the court has jurisdiction over the Band’s claim against Rose changes somewhat the posture" }, { "docid": "7948521", "title": "", "text": "Sterling released their trust deeds on the eleven homes sold under the workout agreement. Friedman foreclosed on the unbuilt portion of the development, and the IRS declined to exercise its rights of redemption. Friedman still retains the Land Loan deeds of trust, which encumber the lot and house improperly sold by Berkshire. Subsequently, Friedman applied for a discharge of the tax lien. The IRS refused to release the lien, and Friedman filed this action. Friedman seeks a discharge of the tax lien encumbering the eleven homes sold under the workout agreement and the home sold by Berkshire. STANDARDS OF REVIEW “Whether the United States waived its sovereign immunity is a question of law reviewed de novo.” Arford v. United States, 934 F.2d 229, 231 (9th Cir.1991) (emphasis deleted). Waivers of sovereign immunity must be strictly construed in favor of the government. See Campbell v. United States, 835 F.2d 193, 195 (9th Cir.1987). Interpretation of a statute also presents a question of law reviewed de novo. See Home Sav. Bank v. Gillam, 952 F.2d 1152, 1156 (9th Cir.1991). DISCUSSION First, we must determine whether the United States has waived its sovereign immunity to this action. This court has stated that “[i]n an action against the United States, in addition to statutory authority granting subject matter jurisdiction, there must be a waiver of sovereign immunity.” Arford, 934 F.2d at 231. While, 28 U.S.C. § 1340 provides statutory authority for subject matter jurisdiction over Friedman’s claims, see Arford, 934 F.2d at 231, Friedman must still clear the second jurisdictional hurdle by pointing to a waiver of sovereign immunity before we can conclude that the district court had subject matter jurisdiction. See id.; Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). Friedman argues that 28 U.S.C. § 2410, 28 U.S.C. § 2201, and 5 U.S.C. § 702 waive sovereign immunity in this ease. We disagree. I. First, Friedman argues that it can bring this action under 28 U.S.C. § 2410. Section 2410 provides that “the United States may be named a party in any civil action or suit in any district1 court ..." }, { "docid": "5485892", "title": "", "text": "Congress did not limit the scope of tribal immunity, as such, the tribes retain the extraterritorial component of sovereign immunity. See Richardson v. Mt. Adams Furniture (In re Greene), 980 F.2d 590, 596 (9th Cir.1992); see also 25 U.S.C. § 450n (stating that nothing in the ISDEAA shall be construed as waiving a tribe’s sovereign immunity). Thus, Modoc did not lose its exemption simply because it performed the self-determination contract for health services off the reservation. See In re Greene, 980 F.2d at 596. E. Individual Liability Pink contends that the district court erred by dismissing her employment discrimination claims against Forrest because Title VII imposes individual liability. We disagree. Assuming arguendo that Modoc’s immunity did not extend to Forrest, civil liability for employment discrimination does not extend to individual agents of the employer who committed the violations, even if that agent is a supervisory employee. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir.1993). The district court therefore properly dismissed Pink’s employment discrimination claims against Forrest, a Modoc employee. F. Indian Civil Rights Act Pink additionally contends that the district court’s dismissal violates her right to due process under the Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1301. Pink is incorrect. ICRA only provides a basis for an individual to bring a habeas corpus civil claim. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); R.J. Williams Co. v. Fort Belknap Housing Auth., 719 F.2d 979, 981 (9th Cir.1983). This court therefore rejects Pink’s contention, raised for the first time on appeal, that her due process rights under ICRA were violated. Cf. Barker v. Menominee Nation Casino, 897 F.Supp. 389, 394-95 (E.D.Wis.1995) (holding that former employee of Indian casino could not sue for any alleged breach of due process rights under ICRA). G. Leave to Amend Pink contends that the district court erred by denying her leave to amend her complaint. This contention lacks merit. This court reviews a denial of leave to amend for abuse of discretion. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183," }, { "docid": "7284126", "title": "", "text": "752, 757 (9th Cir.1999); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). However, dismissal without leave to amend is improper “ ‘unless it is clear, upon de novo review, that the complaint could not be saved by amendment.’” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir.1998) (quoting Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996)). “We have stressed Rule 15’s policy of favoring amendments, and we have applied this policy with liberality.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.1989). Upon de novo review, we conclude that the district court erred by denying Adam’s motion to file a third amended complaint. Most importantly, the magistrate judge’s decision to deny Adam’s motion to file a third amended complaint rested at least in part on Judge Gillmor’s erroneous dismissal with prejudice of Adam’s complaint. As discussed above, Judge Gillmor was required to stay the federal proceedings, not dismiss them. Consequently, the magistrate judge’s belief that Adam’s proposed amended complaint would be futile in light of Judge Gillmor’s dismissal of Adam’s complaint with prejudice rested on a faulty premise. Furthermore, with respect to futility, a district court should grant leave to amend unless it appears beyond doubt that the plaintiffs proposed amended complaint would not remedy the deficiencies in the previous complaint. DCD Programs, 833 F.2d at 188. It is not beyond doubt that allowing Adam to amend his complaint would be futile. Adam’s proposed third amended complaint, for example, deleted the State of Hawaii as a defendant, thereby avoiding the Eleventh Amendment sovereign immunity bar relied upon by Judge Gillmor in dismissing some of Adam’s claims. Adam’s third amended complaint also omitted any reference to the July 1, 1998, “warning shot” incident for which Hawaii prosecuted him, thereby minimizing any friction between the state prosecution and the federal civil rights action. Finally, Chief Carvalho and Officer Haa-nio failed to identify any prejudice they would suffer from allowing Adam to amend his complaint. See DCD Programs, 833 F.2d at 187 (“The party opposing amendment bears the burden of showing prejudice.”). Adam’s" }, { "docid": "20098872", "title": "", "text": "actions constituted a breach of contract, a taking of property, and a denial of substan tive due process. It sought the same damages that it had already sought in its action against Mateer and Robertson. On November 23, 1992, the Claims Court dismissed Janicki’s complaint because the action was not filed within one year of the contracting officer’s final decision, the Claims Court lost jurisdiction when JanicM filed its district court action, and the Claims Court did not have jurisdiction to grant relief based upon the due process clause of the Fifth Amendment. The Court of Appeals for the Federal Circuit ultimately summarily affirmed the Claims Court decision based upon the second ground. In June of 1993, the district court determined that it did not have jurisdiction, as a result of which it dismissed the action without prejudice. It determined that because the CDA is a comprehensive remedial scheme, Janicki could not sustain a Bivens action against the USFS officials. The court also pointed out that it had no jurisdiction over CDA actions as such. See 28 U.S.C. § 1346(a)(2). After the district court issued its judgment, Janicki sought reconsideration. It requested that the district court allow it to amend its complaint and that the court then transfer the amended complaint to the Claims Court. See 28 U.S.C. § 1631. The district court denied the motion, and this appeal ensued. STANDARD OF REVIEW We review de novo a decision to dismiss a complaint for lack of jurisdiction. See Reebok Int’l, Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 554 (9th Cir.1992); Hooker v. United States Dep’t of Health & Human Servs., 858 F.2d 525, 529 (9th Cir.1988). We review a denial of a motion to amend a complaint for an abuse of discretion. See Sorosky v. Burroughs Corp., 826 F.2d 794, 804 (9th Cir.1987). Similarly, we review decisions involving pretrial scheduling orders issued pursuant to Federal Rule of Civil Procedure 16 for an abuse of discretion. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir.1992). We also review a district court’s refusal to transfer a case pursuant" }, { "docid": "21475373", "title": "", "text": "capture and confinement, not restrictions on international travel. See, e.g., Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 356, 358 (D.C.Cir.2006); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107, 109-111, 113 (D.D.C.2000). Because plaintiffs fail to satisfy the statutory requirements of the terrorism exception, Iran, as a “foreign state,” is “immune from the jurisdiction” of federal courts. See 28 U.S.C. § 1604. The district court concluded that it also lacked jurisdiction over the Revolutionary Guard because the FSIA defines “foreign state” to include “a political subdivision of a foreign state or an agency or instrumentality of a foreign state,” id. § 1603(a). Plaintiffs have forfeited any challenge to that conclusion by failing to contest it on appeal. See, e.g., World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1160 (D.C.Cir. 2002). Plaintiffs also raise no challenge to the district court’s determination that foreign sovereign immunity extended to the individual defendants, Khamenei and Ahmadinejad. Immunity under the FSIA therefore applies to all defendants. In a final effort to establish subject-matter jurisdiction, plaintiffs invoke the Alien Tort Statute, 28 U.S.C. § 1350. The Alien Tort Statute, however, does not confer any waiver of foreign sovereign immunity. See Amerada Hess, 488 U.S. at 438-39, 109 S.Ct. 683; Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir.2005); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 713 n. 13 (9th Cir.1992). The Alien Tort Statute affords jurisdiction for suits against private defendants, not against foreign sovereigns. The FSIA provides the “sole basis for obtaining jurisdic: tion over a foreign state.” Amerada Hess, 488 U.S. at 439, 109 S.Ct. 683. We therefore affirm the district court’s dismissal of plaintiffs’ third amended complaint for lack of subject-matter jurisdiction. III. After the district court granted dismissal, plaintiffs filed motions for reconsideration and for leave to file a fourth amended complaint. The only basis for jurisdiction under the FSIA asserted in the third amended complaint was the terrorism exception, 28 U.S.C. § 1605A. In the proposed fourth amended complaint, plaintiffs sought to invoke 28 U.S.C. § 1605(a)(5), the FSIA’s noncommercial torts exception, as" }, { "docid": "22432930", "title": "", "text": "stemming from the force the officers used against him. On March 30, 2000, Lolli filed his complaint in federal court. After discovery, the County and the officers moved for summary judgment. Lolli opposed their motion, submitting evidence and pointing to disputed facts that he claimed prevented a grant of summary judgment against him. The district court, after a hearing, granted the motion on February 28, 2002. The order, as well as its statement of facts and conclusions of law, made no mention of Lolli’s allegedly disputed facts or of his medical claim. It awarded costs, “including reasonable attorneys’ fees,” to the County and the officers. Rather than immediately appealing the grant of summary judgment, Lolli filed a motion for reconsideration. The district court denied this motion on July 8, 2002. Among other things, it stated that “[pjlain-tiffs claims, analyzed under the Fourth Amendment as a non-medical detention, cannot stand as against defendants’ qualified immunity defense,” although the officers had not mentioned qualified immunity in their summary judgment motion or in their opposition to the motion for reconsideration. On July 26, Lolli filed a notice of appeal listing only the July 8 order. We have jurisdiction pursuant to 28 U.S.C. § 1291. STANDARD OF REVIEW The denial of a motion for reconsideration is reviewed for an abuse of discretion. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000). In contrast, we review a grant of summary judgment de novo. See Oliver v.Keller, 289 F.3d 623, 626 (9th Cir.2002). When considering a grant of summary judgment, “[vjiewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. DISCUSSION A. The Notice of Appeal We review the district court’s grant of summary judgment — not simply its denial of Lolli’s motion for reconsideration— although Lolli did not list the order granting summary judgment in his timely notice of appeal. Ordinarily, Lolli’s appeal of the February 28 summary judgment order would have been due" }, { "docid": "21475374", "title": "", "text": "invoke the Alien Tort Statute, 28 U.S.C. § 1350. The Alien Tort Statute, however, does not confer any waiver of foreign sovereign immunity. See Amerada Hess, 488 U.S. at 438-39, 109 S.Ct. 683; Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir.2005); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 713 n. 13 (9th Cir.1992). The Alien Tort Statute affords jurisdiction for suits against private defendants, not against foreign sovereigns. The FSIA provides the “sole basis for obtaining jurisdic: tion over a foreign state.” Amerada Hess, 488 U.S. at 439, 109 S.Ct. 683. We therefore affirm the district court’s dismissal of plaintiffs’ third amended complaint for lack of subject-matter jurisdiction. III. After the district court granted dismissal, plaintiffs filed motions for reconsideration and for leave to file a fourth amended complaint. The only basis for jurisdiction under the FSIA asserted in the third amended complaint was the terrorism exception, 28 U.S.C. § 1605A. In the proposed fourth amended complaint, plaintiffs sought to invoke 28 U.S.C. § 1605(a)(5), the FSIA’s noncommercial torts exception, as an additional basis for jurisdiction. The district court denied plaintiffs’ motion for reconsideration and consequently denied as moot plaintiffs’ motion to file a fourth amended complaint. Mohammadi, 947 F.Supp.2d at 84. We review the district court’s ruling for abuse of discretion, see GSS Group Ltd., 680 F.3d at 811; In re InterBank Funding Corp. Securities Litigation, 629 F.3d 213, 218 (D.C.Cir.2010), and we perceive no basis for overturning it. Federal Rule of Civil Procedure 15(a) provides that leave to amend shall be “freely give[n]” when “justice so requires.” But after entry of judgment, a court has no obligation to grant leave to amend unless a plaintiff first satisfies “Rule 59(e)’s more stringent standard for setting aside that judgment.” Ciralsky v. CIA 355 F.3d 661, 673 (D.C.Cir.2004) (internal quotation marks omitted). “[Reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly.” 11 Charles Alan Wright et al., Federal Practice & Procedure § 2810.1 (3d ed.2012). A district court need not grant a Rule 59(e) motion unless there is an “intervening" }, { "docid": "630743", "title": "", "text": "tax assessments. Wanda and Marlin sued the United States seeking to quiet title to and recover Marlin’s retirement pay. They alleged that the government: 1) did not assess their taxes as required by 26 U.S.C. §§ 6201 & 6203; 2) did not send them the proper notices as required by 26 U.S.C. §§ 6331-6333 & 6335, and 3) made an improper claim against Wanda’s community property interest in the pay. The government filed a motion to dismiss, which the district court treated as one for summary judgment due to the inclusion of documents in affidavit form. The district court granted the motion, concluding that it had no jurisdiction to hear the complaint because the United States had not waived its sovereign immunity. The Arfords now appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. DISCUSSION In an action against the United States, in addition to statutory authority granting subject matter jurisdiction, there must be a waiver of sovereign immunity. DeMasters v. Arend, 313 F.2d 79, 84 (9th Cir.), cert. dismissed, 375 U.S. 936, 84 S.Ct. 341,11 L.Ed.2d 269 (1963). In other words, the United States must consent to be sued. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). Whether the United States waived its sovereign immunity is a question of law reviewed de novo. United States v. Washington, 872 F.2d 874, 877 (9th Cir.1989). The district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1340. That section states in relevant part that “[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue.... ” Section 1340, however, does not constitute a waiver of sovereign immunity. DeMasters, 313 F.2d at 84. The Arfords alleged sovereign immunity was waived by 26 U.S.C. § 7426 as to the requested recovery relief and 28 U.S.C. § 2410 as to the requested quiet title relief. We consider these two provisions in turn. Sovereign immunity under 26 U.S.C. § 7k26 Title 26 U.S.C. § 7426(a)(1) provides that “any person (other than the person against whom is assessed the tax out of which" }, { "docid": "22095339", "title": "", "text": "notice requirement for a claim under subsection B. Ascon has not pleaded that it has provided 90-day notice; it has not pleaded that it has notified the Attorney General. We therefore lack subject matter jurisdiction over Ascon’s RCRA subsection B claim. IV Ascon also challenges the district judge’s denial of leave to file another amended complaint. We review a denial of leave to amend for abuse of discretion. DCD Programs, Ltd. v. Leighton, 883 F.2d 183, 186 (9th Cir.1987) (Leighton). Under Federal Rule of Civil Procedure 15(a), a party may amend its complaint “once as a matter of course at any time before a responsive pleading is served.” Fed.R.Civ.P. 15(a). Thereafter, a party may amend only by leave of the court or by written consent of the adverse party. Id. Rule 15(a), however, instructs that “leave shall be freely given when justice so requires.” Id. We have stressed Rule 15’s policy of favoring amendments, and we have applied this policy with liberality. Leighton, 833 F.2d at 186; United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981). In Leighton, however, we held that the liberality in granting leave to amend is subject to several limitations. 833 F.2d at 186. Leave need not be granted where the amendment of the complaint would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay. Id.; see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). The district court’s discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint. Leighton, 833 F.2d at 186 n. 3.; Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir.1980) (Mir). Leigh-ton points out that denials of motions for leave to amend have been reversed in the absence of a contemporaneous finding by the court that one of these factors is present. 833 F.2d at 186-87. Although the district court in the present case made no such explicit finding in dismissing As-con’s RCRA claim, we believe that from the entire record the reasons are “readily apparent.” Id." }, { "docid": "22477721", "title": "", "text": "reason for denying Levald leave to amend the complaint. Nor is the reason for the denial apparent from the record. See DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (“in the absence of written findings or a record which clearly indicates reasons for the district court’s denial, this court will reverse a denial of leave to amend”). The district court dismissed the claim “without prejudice,” implying that the defects in the complaint were not unremedia-ble. See id. at 187. The court stated that an allegation “that [Levald] had applied for an increase under the ordinance and was not given an amount constituting a fair return on its investment” would perhaps be sufficient to state an as-applied due process claim. The proposed amended complaint alleged precisely that: [27] The Ordinance as applied to Le-vald deprives Levald of property without due process of law. [28] By the Rent Review Board’s enforcement policy of the Ordinance: Levald is not able to receive a fair return on the value of Levald’s property or on its capital improvements. The value of Levald’s investment does not even keep pace with inflation. Even though the amended version of the complaint seemed to comply with the direction provided by the court, the court refused to grant leave to amend. Since the district court did not provide an explanation for its refusal to allow Levald to amend its complaint and since its reasons are not apparent from the record, we conclude that the district court abused its discretion in failing to explain its reasons for denying leave to amend the complaint. We thus remand for explanation. IV Levald argues that the district court erred in declining to exercise supplemental jurisdiction over its state law claims. 28 U.S.C. § 1367(c) provides: The district courts may decline to exercise supplemental jurisdiction over a claim ... if— (3) the district court has dismissed all claims over which it has original jurisdiction. ... Here, the district court properly exercised its discretion under section 1367(c)(3) and de-dined to retain the pendent state claims after it dismissed all of the other claims" }, { "docid": "23404954", "title": "", "text": "B. Reade Trust. The Plans and Stone concede that Ms. Reade was not named in the amended complaint in her proper representative capacity. They argue, however, that the district court abused its discretion in denying their motion to amend the complaint to designate Ms. Reade in her proper capacity as the trustee of the Robert B. Reade Trust. We review a district court’s denial of a motion for leave to amend for abuse of discretion. See Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879 (9th Cir.1999). Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires.” We therefore review such a denial strictly in light of the strong policy permitting amendment. See Plumeau v. School Dist. No. 40, 130 F.3d 432, 439 (9th Cir.1997). Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). Additionally, the dis trict court may consider the factor of undue delay. See id. Undue delay by itself, however, is insufficient to justify denying a motion to amend. See id. We have previously reversed the denial of a motion for leave to amend where the district court did not provide a contemporaneous specific finding of prejudice to the opposing party, bad faith by the moving party, or futility of the amendment. See id. at 186-87 (citing Howey v. United States, 481 F.2d 1187, 1191 (9th Cir.1973)). Here, the district court did not make any specific findings of prejudice, bad faith, or futility. The court merely explained that it denied The Plans’ motion because they knew that Ms. Reade was acting in her capacity as trustee of the Robert B. Reade Trust. This explanation, however, does not satisfy the district court’s duty to make findings supported by the record showing that the motion was prejudicial to the defendant, was made in bad faith, or was futile. Ms. Reade" }, { "docid": "22799492", "title": "", "text": "illegal payments must have been submitted.’ ” (quoting Clausen, 290 F.3d at 1311)); Hopper, 91 F.3d at 1265 (“It is not the case that any breach of contract, or violation of regulations or law, or receipt of money from the government where one is not entitled to receive the money, automatically gives rise to a claim under the FCA.” (quoting the district court)). Given Cafasso’s failure to plead a false claim, we affirm the district court’s dismissal of Cafasso’s complaint. Ill We next consider the district court’s denial of Cafasso’s motion for leave to amend her complaint. Our review is for abuse of discretion. United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1051 (9th Cir.2001). GDC4S brought its Rule 12(c) motion after nearly two years of discovery. Given that late stage of litigation, the district court suggested that Cafasso, rather than opposing the motion, instead seek to amend her pleading to cure the deficiencies identified in the motion. Acting on this suggestion, Cafasso moved to amend and tendered a 733-page proposed amended complaint. The district court denied Cafasso’s motion for failure to comply with Rule 8(a), among other deficiencies. Normally, when a viable case may be pled, a district court should freely grant leave to amend. Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir.2002). However, “liberality in granting leave to amend is subject to several limitations.” Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.1989) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987)). Those limitations include undue prejudice to the opposing party, bad faith by the movant, futility, and undue delay. Id. Further, “[t]he district court’s discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.” Id. (citing Leighton, 833 F.2d at 186; Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir.1980)). The district court was well within its discretion to deny leave to amend for several reasons. First, amendment would have been futile considering the proposed pleading’s extraordinary prolixity. Rule 8(a) requires that a complaint contain “a short and" }, { "docid": "7284125", "title": "", "text": "with prejudice a federal plaintiffs complaint seeking money damages brought under § 1983. See Quackenbush, 517 U.S. at 721, 116 S.Ct. 1712 (“[Wjhile we have held that federal courts may stay actions for damages based on abstention principles, we have not held that those principles support the outright dismissal or remand of damages actions.”); Martinez, 125 F.3d at 782-83. Furthermore, precluding Adam from arguing the merits of his claims in federal court contravenes § 1983’s purpose of “providing] a remedy in situations where states ... provide inadequate remedies, and in instances where state remedies, though theoretically adequate, are unavailable in practice.” Martinez, 125 F.3d at 781-82 (citing Monroe v. Pape, 365 U.S. 167, 173-74, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)). In sum, even if the Younger elements had been satisfied, the district court was required to stay the proceedings. Ill Motion to Amend Complaint We review the district court’s denial of a request to amend a complaint under Federal Rule of Civil Procedure 15(a) for an abuse of discretion. Bowles v. Reade, 198 F.3d 752, 757 (9th Cir.1999); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). However, dismissal without leave to amend is improper “ ‘unless it is clear, upon de novo review, that the complaint could not be saved by amendment.’” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir.1998) (quoting Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996)). “We have stressed Rule 15’s policy of favoring amendments, and we have applied this policy with liberality.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.1989). Upon de novo review, we conclude that the district court erred by denying Adam’s motion to file a third amended complaint. Most importantly, the magistrate judge’s decision to deny Adam’s motion to file a third amended complaint rested at least in part on Judge Gillmor’s erroneous dismissal with prejudice of Adam’s complaint. As discussed above, Judge Gillmor was required to stay the federal proceedings, not dismiss them. Consequently, the magistrate judge’s belief that Adam’s proposed amended complaint would be futile in light of" }, { "docid": "11593795", "title": "", "text": "The pretrial order is likewise silent. In that section of the order where the parties are listed, the plaintiffs’ names are listed without any notation of a representative capacity. The Byrds had the burden of alleging and proving standing. See Northwest Environmental Defense Center v. BPA, 117 F.3d 1520, 1528 (9th Cir.1997). The Byrds failed to allege their representative capacity in their complaint, and faded to introduce any evidence that they were in fact the successors in interest of Sylvan Byrd under California law. The district court properly found that the Byrds lacked standing to assert the violation of Sylvan Byrd’s Fourth Amendment rights. 2. Did the district court err in denying that portion of the Byrds’ motion to amend the complaint and modify the pretrial order that sought to add an allegation that the, Byrds were successors in interest to Sylvan Byrd’s Fourth Amendment claim? The Byrds attempted to cure their lack of standing by filing a motion to amend their complaint and to modify the pretrial order. The district court denied the motion without explanation. We review the district court’s denial of a motion to modify a pretrial order for abuse of discretion. See Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir.1985). The district court abuses its discretion by denying a motion to amend without explanation unless the reasons for doing so are apparent from the record. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). In this case, the reasons are apparent from the record, and we can find no abuse of discretion. “Standing is a necessary element of federal-court jurisdiction:” Big Country Foods, Inc. v. Board of Education, 952 F.2d 1173, 1176 (9th Cir.1992). If the complaint’s allegations are insufficient to confer standing, “[o]ften a plaintiff will be able to amend its complaint to cure standing deficiencies.” United Union of Roofers v. Insurance Corp. of America, 919 F.2d 1398, 1402 (9th Cir.1990). Fed.R.Civ.P. 15(a) provides that amendment shall be granted “ft-eely when justice so requires.” But this standard changes and becomes progressively more difficult to meet as litigation proceeds" }, { "docid": "23404953", "title": "", "text": "Ms. Reade’s motion for summary judgment. The district court denied The Plans’ motion to shorten time. It granted Ms. Reade’s motion for summary judgment on November 14, 1997. On January 7,1998, The Plans filed a motion for reconsideration of the order granting summary judgment and a motion for leave to amend the complaint. On March 23, 1998, the district court denied the motion for reconsideration of the order granting summary judgment and the motion to amend. The district court entered judgment on May 7, 1998 in favor of Ms. Reade pursuant to Rule 54(b). The Plans and Stone filed their notice of appeal from the judgment disposing of all claims against Ms. Reade on June 3, 1998. Bowles did not file a notice of appeal. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. II The district court dismissed this action because the claims in the first amended complaint were filed against Ms. Reade as “Exeeutrix/Administratrix of the Estate of Robert B. Reade, Sr.” Ms. Reade is the trustee of the Robert B. Reade Trust. The Plans and Stone concede that Ms. Reade was not named in the amended complaint in her proper representative capacity. They argue, however, that the district court abused its discretion in denying their motion to amend the complaint to designate Ms. Reade in her proper capacity as the trustee of the Robert B. Reade Trust. We review a district court’s denial of a motion for leave to amend for abuse of discretion. See Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879 (9th Cir.1999). Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires.” We therefore review such a denial strictly in light of the strong policy permitting amendment. See Plumeau v. School Dist. No. 40, 130 F.3d 432, 439 (9th Cir.1997). Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile. See DCD Programs, Ltd." } ]

[ { "docid": "22650525", "title": "", "text": "Per Curiam. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Upon consideration of the entire record we agree with the Solicitor General that “the record in this case does not sufficiently support the findings of competency to stand trial/' for to support those findings under 18 U. S. C. § 4244 the district judge “would need more information than this record presents.” We also agree with the suggestion of the Solicitor General that it is not enough for the district judge to find that “the defendant [is] oriented to time and place and [has] some recollection of events,” but that the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner’s competency as of more than a year ago, we reverse the judgment of the Court of Appeals affirming the judgment of conviction, and remand the case to the District Court for a new hearing to ascertain petitioner’s present competency to stand trial, and for a new trial if petitioner is found competent. It is so ordered." } ]

[ { "docid": "23645618", "title": "", "text": "denying continuances. The Supreme Court in Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940) stated: In the course of trial, after due appointment of competent counsel, many procedural questions necessarily arise which must be decided by the trial judge in the light of facts then presented and conditions then existing. Disposition of a request for continuance is of this nature and is made in the discretion of the trial judge, the exercise of which will ordinarily not be reviewed. There are, of course, rare occasions when the denial of a continuance could be an abuse of discretion, but a clear abuse would have to be found. See United States v. Michelson, 559 F.2d 567, 572 (9th Cir. 1978); Daut v. United States, 405 F.2d 312, 315 (9th Cir. 1968), cert. denied, 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971); Wright, Federal Practice and Procedure, Criminal § 832. There was no abuse of discretion in this case. B. Hearing on Competence Cavanaugh argues that the trial court erred by failing to initiate a hearing on his competence to stand trial. If the evidence is sufficient to raise a genuine doubt in the mind of a reasonable trial judge concerning the defendant’s competence, due process requires the trial judge to hold a competency hearing on his own motion. Bassett v. McCarthy, 549 F.2d 616, 619 (9th Cir.), cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117 (1977); see 18 U.S.C. § 4244; Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The constitutional standard of competence is whether a defendant “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him’ ”. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Bassett, 549 F.2d at 618. Bare assertions by defendant’s counsel that defendant is not competent to stand trial generally are not sufficient to raise the requisite doubt." }, { "docid": "23239126", "title": "", "text": "learn that Chischilly had committed later crimes, and would be prejudiced against finding him incompetent again. Judge Ro-senblatt denied the motion, stating that “the Court has no independent recollection of the 1979 competency proceedings.” The Supreme Court has recently addressed the question of whether the personal bias or prejudice alleged in support of a motion for recusal under 28 U.S.C. § 455(a) must stem from an extrajudicial source. The Court determined that judicial rulings may support a motion for recusal, but only “in the rarest circumstances” where they evidence the requisite degree of favoritism or antagonism. Liteky v. United States, — U.S. -, -, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). In addition, information and beliefs formed during current or prior proceedings may serve as the basis of a Section 455(a) motion, but only when “they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. Chischilly has shown no ground for disqualification but the bare fact of the prior ruling and conjecture as to its lingering prejudicial effect. Liteky instructs that “judicial rulings alone almost never constitute valid basis [sic] for a bias or partiality motion” and per se “cannot possibly show reliance upon an extrajudicial source” in a judge’s deliberations. Id. (emphasis added); see also, United States v. Hamilton, 792 F.2d 837, 839 (9th Cir.1986) (affirming refusal to recuse where trial judge stated that he had no recollection of 15-year-old prior proceeding in which defendant had appeared before him and the record contained no evidence of bias or prejudice). Accordingly, the trial judge did not abuse his discretion in refusing to recuse himself. II. Competency to Stand Trial Chischilly asserts that his illiteracy and low level intelligence deprived him of the ability to understand factually the nature of the legal proceedings against him and to assist counsel with a reasonable degree of rational understanding. He contends that, lacking these capacities, he failed to meet the two criteria for competency to stand trial enunciated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). We review for clear error as" }, { "docid": "23239130", "title": "", "text": "retarded, illiterate, brain damaged or incompetent to stand trial. Thus, the district court was presented with two contradictory diagnoses of Chischilly’s competency and one tentative, variable assessment. To the extent that Judge Rosen-blatt, from his courtroom observations, assigned more weight to the Government’s expert than to the contrary, at times inconclusive conclusions of experts retained by Chis-chilly, he was acting within his discretion to do so as a part of his fact-finding and credibility-weighing functions. See Frank, 956 F.2d at 875 (noting that “a district court is free to assign greater weight to the findings of experts produced by the Government”); United States v. Lindley, 774 F.2d 993 (9th Cir.1985) (concluding that “the district court did not clearly err in assigning more weight to the findings of [the government’s] psychiatrists”). Accordingly, we conclude that the district court did not clearly err in finding that Chischilly was fit to stand trial. III. Voluntariness of Confession and Consent to Give Blood Sample Chischilly contends that the district court’s ruling that his confession was voluntary kept him from presenting an insanity defense, because the ruling would have permitted the Government to use the confession in rebuttal. We conclude that Chischilly can raise this issue despite the fact that he did not present Ms insanity defense and the Government accordingly did not use the confession against him. It is true that in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), the Supreme Court held that a defendant who did not testify could not appeal the denial of an in limine motion that would have prevented the use of prior convictions for impeachment. See also, Galindo v. Ylst, 971 F.2d 1427, 1429 (9th Cir.1992) (same). Luce, however, recognized that its rule dealt with a preliminary ruling “not reaching constitutional dimensions.” Luce, 469 U.S. at 43, 105 S.Ct. at 464. Because use of an involuntary confession would violate the Constitution, Luce does not apply. The Seventh Circuit so held in United States ex rel. Adkins v. Greer, 791 F.2d 590, 593-94 (7th Cir.1986). We agree with that decision, and therefore" }, { "docid": "23239122", "title": "", "text": "Chisehilly filed a motion requesting Judge Rosenblatt’s recusal on the basis that the judge would be reluctant to again find him incompetent after learning that Chisehilly had committed further crimes after being released without trial in 1979. Judge Ro-senblatt stated that he had no independent recollection of the 1979 competency proceedings and denied the motion for recusal. At two pretrial competency hearings on February 7 and March 6, 1991, Chisehilly offered the testimony of Dr. Otto Bendheim, a psychiatrist whose practice is described as focusing heavily on Native Americans, and Dr. Marc Walter, a neuropsychologist. The Government countered with the testimony of Dr. Alexander Don. Dr. Walter administered two neuropsycho-logical examinations of a combined duration of eight hours and interviewed members of Chischilly’s family. From this data Dr. Walter concluded that the defendant had a verbal IQ of approximately 62 and the functional level of a five- or six-year old child. Dr. Walter testified that Chisehilly could not meaningfully participate in legal proceedings and could not understand or be taught legal concepts. Dr. Walter further testified that Chisehilly would be unable to assist his lawyer effectively, notwithstanding his general understanding of the defense attorney’s role. Several months before trial, Dr. Bendheim initially diagnosed Chisehilly as having organic brain syndrome and temporal lobe seizure disorder, resulting in deficient intellect, illiteracy and behavioral problems. Later developments made Dr. Bendheim’s diagnosis more tentative. First, Chisehilly showed modest improvement in response to psychotropic drug treatment. In addition, Dr. Don conducted tests indicating that Chisehilly had some long-term retention of the events surrounding the victim’s death. Dr. Don agreed with Drs. Bendheim and Walter that Chisehilly had behavioral problems, a structurally abnormal brain and deficient intelligence. However, Dr. Don did not agree that the defendant was mentally retarded. In view of Chischilly’s improving memory, Dr. Don testified that Chisehilly was “not so disabled by mental disorder, or defect, at this time, so as to be unable to understand the nature of proceedings against him and assist counsel in the preparation of his own defense.” On March 6, 1991, the district court ruled that Chisehilly was" }, { "docid": "23190991", "title": "", "text": "counsel, and the judge. He has very little understanding of his constitutional rights, but this is not so much the result of mental incompetency as cultural differences. The defendant is able to assist his counsel in the preparation of a defense. A defendant is incompetent to stand trial if the court finds “by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense....” 18 U.S.C. § 4241(d) A district court’s finding that a defendant is competent to stand trial is a question of fact which we review for clear error. United States v. Lindley, 774 F.2d 993 (9th Cir.1985). We are required to consider the evidence in the light most favorable to the Government. United States v. Carlson, 617 F.2d 518, 523 (9th Cir. (citing United States v. Glover, 514 F.2d 390, 391 (9th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 108, 46 L.Ed.2d 83 (1975)), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974). The test that must be applied in determining competency to stand trial is set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). There the Court held: [I]t is not enough for the district judge to find that “the defendant [is] oriented to time and place and [has] some recollection of events,” but that the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 402-03, 80 S.Ct. at 788-89 (citations omitted). Accord, De Kaplany v. Enomoto, 540 F.2d 975, 979 (9th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). The" }, { "docid": "23645619", "title": "", "text": "erred by failing to initiate a hearing on his competence to stand trial. If the evidence is sufficient to raise a genuine doubt in the mind of a reasonable trial judge concerning the defendant’s competence, due process requires the trial judge to hold a competency hearing on his own motion. Bassett v. McCarthy, 549 F.2d 616, 619 (9th Cir.), cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117 (1977); see 18 U.S.C. § 4244; Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The constitutional standard of competence is whether a defendant “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him’ ”. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Bassett, 549 F.2d at 618. Bare assertions by defendant’s counsel that defendant is not competent to stand trial generally are not sufficient to raise the requisite doubt. See De Kaplany v. Enomoto, 540 F.2d 975, 982-83 & n.8 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977); see also United States v. Ives, 574 F.2d 1002, 1004 (9th Cir. 1978). In this case, the record reveals that Cavanaugh was alert, rational and responsive throughout the trial. Cavanaugh testified, at a hearing on a motion to suppress, that during the month immediately preceding trial, and at Cavanaugh’s request, jail officials had given Cavanaugh sedatives that made him drowsy. However, there is no evidence that he took any drugs at the time of his trial. The only other evidence of incompetence consisted of the unsupported assertions of Cavanaugh and his counsel that the discomfort of living in a jail cell had impaired Cavanaugh’s mental ability to testify and to respond to cross-examination. The evidence was insufficient to raise a genuine doubt about Cavanaugh’s ability to communicate rationally with his lawyer and to understand the proceedings against him. The trial court was not required to hold a" }, { "docid": "23190990", "title": "", "text": "to the testimony of defense witnesses to support his contention that he was unable to concentrate or assist counsel in his defense because he is mentally retarded and suffers from severe depression. The Government’s experts disagreed. They testified that there was no evidence that Frank was mentally retarded or that he suffered from severe depression at the time of their examination. Each prosecution expert was of the opinion that Frank was able to understand the nature and the consequences of the criminal proceedings against him and to assist his counsel in the preparation of a defense. The district court concluded that the Government met its burden of proving that Frank was competent. The court found that Frank was oriented as to time, place, and person, and was not presently suffering from a mental disease or defect. In explaining its ruling on the competency motion, the district court stated: The defendant understands the charges against him and the possible consequences if he is found guilty. He has some understanding of the roles of the prosecutor, defense counsel, and the judge. He has very little understanding of his constitutional rights, but this is not so much the result of mental incompetency as cultural differences. The defendant is able to assist his counsel in the preparation of a defense. A defendant is incompetent to stand trial if the court finds “by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense....” 18 U.S.C. § 4241(d) A district court’s finding that a defendant is competent to stand trial is a question of fact which we review for clear error. United States v. Lindley, 774 F.2d 993 (9th Cir.1985). We are required to consider the evidence in the light most favorable to the Government. United States v. Carlson, 617 F.2d 518, 523 (9th Cir. (citing United States v. Glover, 514 F.2d 390, 391 (9th Cir.), cert. denied, 423 U.S." }, { "docid": "22854044", "title": "", "text": "tried him in absentia without informing him expressly of his constitutional right to be present and securing a specific waiver on the record. I. Burden of Proof of Competency The Supreme Court has set forth a two-prong test for determining competency to stand trial. The defendant must have (1) “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and (2) “a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (per curiam); United States v. Hemsi, 901 F.2d 293, 295 (2d Cir.1990). In the federal courts, competency is determined by a preponderance of the evidence. 18 U.S.C. § 4241(d). The district court held that, under 18 U.S.C. § 4241(d), the defendant bears the burden of proving incompetency to stand trial and be sentenced despite longstanding contrary authority in other circuits. See United States v. Teague, 956 F.2d 1427, 1431 n. 10 (7th Cir.1992); United States v. Frank, 956 F.2d 872, 875 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992); United States v. Velasquez, 885 F.2d 1076, 1089 (3d Cir.1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 497 (1990); United States v. Hutson, 821 F.2d 1015, 1018 (5th Cir.1987); United States v. DiGilio, 538 F.2d 972, 988 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977); United States v. Makris, 535 F.2d 899, 906 (5th Cir.1976). The district court reasoned that the holdings of those cases were predicated on the common assumption that the Due Process Clause required the government to bear the burden of proof. In its view, that assumption was undercut by the Supreme Court’s recent decision in Medina v. California, — U.S. -, -, 112 S.Ct. 2572, 2580-81, 120 L.Ed.2d 353 (1992), which held that California’s allocation of the burden to the defendant did not offend due process. Approaching the issue afresh, the district court employed both textual and functional analysis in deciding that under § 4241 the defendant should" }, { "docid": "23239125", "title": "", "text": "(the “NRC Report”). According to the testimony of Government witnesses, DNA analysis conducted by the FBI later indicated a match between a sample of Chischilly’s blood and sperm found on the victim. A Government expert witness, Dr. Chakraborty, further testified that one in 2563 would be a “conservative estimate” of the probability of a similar match between the DNA of a randomly selected American Indian and either the evidentiary sample or the defendant’s DNA. At the end of the Government’s presentation of its case and again at the end of the defense’s case, Chischilly filed a motion for judgment of acquittal. The district court denied both motions. On July 2, 1992, the jury found Chischilly guilty on both counts. On September 28, 1992, he was sentenced to two life sentences, to be served concurrently. DISCUSSION I. Recusal Chischilly contends that Judge Rosenblatt should have recused himself because, when still a state judge, he had held Chischilly incompetent to stand trial on unrelated sex charges in 1979. Chischilly speculates that Judge Rosenblatt would be eha-grined to learn that Chischilly had committed later crimes, and would be prejudiced against finding him incompetent again. Judge Ro-senblatt denied the motion, stating that “the Court has no independent recollection of the 1979 competency proceedings.” The Supreme Court has recently addressed the question of whether the personal bias or prejudice alleged in support of a motion for recusal under 28 U.S.C. § 455(a) must stem from an extrajudicial source. The Court determined that judicial rulings may support a motion for recusal, but only “in the rarest circumstances” where they evidence the requisite degree of favoritism or antagonism. Liteky v. United States, — U.S. -, -, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). In addition, information and beliefs formed during current or prior proceedings may serve as the basis of a Section 455(a) motion, but only when “they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. Chischilly has shown no ground for disqualification but the bare fact of the prior ruling and conjecture as to its lingering prejudicial effect. Liteky instructs" }, { "docid": "23239123", "title": "", "text": "testified that Chisehilly would be unable to assist his lawyer effectively, notwithstanding his general understanding of the defense attorney’s role. Several months before trial, Dr. Bendheim initially diagnosed Chisehilly as having organic brain syndrome and temporal lobe seizure disorder, resulting in deficient intellect, illiteracy and behavioral problems. Later developments made Dr. Bendheim’s diagnosis more tentative. First, Chisehilly showed modest improvement in response to psychotropic drug treatment. In addition, Dr. Don conducted tests indicating that Chisehilly had some long-term retention of the events surrounding the victim’s death. Dr. Don agreed with Drs. Bendheim and Walter that Chisehilly had behavioral problems, a structurally abnormal brain and deficient intelligence. However, Dr. Don did not agree that the defendant was mentally retarded. In view of Chischilly’s improving memory, Dr. Don testified that Chisehilly was “not so disabled by mental disorder, or defect, at this time, so as to be unable to understand the nature of proceedings against him and assist counsel in the preparation of his own defense.” On March 6, 1991, the district court ruled that Chisehilly was competent to stand trial. Chisehilly abruptly walked out of the courtroom in the middle of the first day of trial. He then renewed his incompetency motion, which the district court again denied. Following completion of the competency hearing, Chisehilly learned from the Government that FBI tests had established a match between his blood sample and semen found on the victim’s clothing. Chisehilly filed a motion in limine and requested a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), to examine the admissibility of this identification evidence, never before presented in the District of Arizona, derived from DNA profiling analysis. After an extensive hearing involving the testimony of eight scientists and the admission of 152 exhibits, the district court denied Chischilly’s motion in limine. At trial the jury heard further testimony from expert witnesses retained by each side on the FBI’s findings, methodology and procedures and was presented findings from the recent report of the Committee on DNA Technology in Forensic Science of the National Research Council of the National Academy of Sciences" }, { "docid": "17153994", "title": "", "text": "with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 402, 80 S.Ct. at 788. Accord, de Kaplany v. Enomoto, 540 F.2d at 979. The government has the burden of demonstrating by a preponderance of the evidence that the defendant is competent to stand trial. Frank, 933 F.2d at 1494 (citing United States v. Hutson, 821 F.2d 1015, 1018 (5th Cir.1987)). Taking the evidence in a light most favorable to the government, we find that the district court committed clear error in finding that the government met its required burden. Our finding of clear error turns in part on our sense that the district court itself was not convinced that Hoskie was competent, but was unwilling to find incompetency in light of its firm conviction that Hoskie posed a danger to society. More fundamentally, however, the testimony of the government expert failed to address the principal concerns of the competency inquiry, i.e. whether Hoskie could comprehend and retain explanations of the judicial process so as to participate effectively in his trial. The defense expert, Dr. Donald Tatro, examined Hoskie for approximately three hours, administering the verbal scale of the Wechsler Adult Intelligence Scale, Revised (“WAIS-R”), the Bender Visual-Motor Gestalt Test, Figure Drawing Test, and Sentence Completion Test. He recorded a verbal IQ of 62. In addition, Dr. Tatro reviewed a wide range of documentary materials related to Hoskie and to the crime, including police reports, hospital reports and school documents. Prior to the competency hearing, Dr. Tatro also reviewed the report prepared by Dr. Grossman. Dr. Tatro concluded and testified to his opinion that Hoskie was incompetent to stand trial. More specifically, he testified that Hoskie had no ability to understand abstractions like guilt, innocence or rights. He gave examples of the interpreter spending 15 minutes explaining the concept of a jury to Hoskie in the simplest terms, at which point Hoskie evidenced “a glimmer” of understanding; five or ten minutes later, Hoskie would have no recollection or understanding of what" }, { "docid": "23511526", "title": "", "text": "that he was competent to plea. See United States v. Frank, 956 F.2d 872, 875 (9th Cir.1991) (“Clear error is not demonstrated by pointing to conflicting evidence in the record.”), cert. denied, — U.S. -, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992); United States v. Lindley, 774 F.2d 993, 993 (9th Cir.1985) (“The district court did not clearly err in assigning more weight to the findings [of competence] of [two government] psychiatrists than to the contrary conclusion of a psychiatrist retained by the defense.”). We therefore hold that the district court did not clearly err in rejecting the testimony of Dr. Alexander and finding that Petitioner was competent to plea based on the testimony of Dr. Thompson. B. Petitioner also argues that the district court clearly erred in finding that he was competent when he is borderline mentally retarded, has a history of mental illness, and has been prescribed psychotropic medication and abused drugs and alcohol. Although Petitioner is of low intelligence, the district court found that he is not mentally retarded. Based on our review of the record this finding is not clearly erroneous. Petitioner’s history of mental problems, low intelligence, psychotropic medication, and substance abuse do not establish that he was incompetent to plea. See Wolf, 430 F.2d at 445 (“The presence of some degree of mental disorder in the defendant does not necessarily mean that he is incompetent to ... enter a plea_”); LoConte, 847 F.2d at 751 (illiterate defendant with below average intelligence, history of drug abuse, and youth spent in institutions and state hospitals held competent to plea guilty to first degree murder); Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir.1985) (defendant’s repeated suicide attempts, repeated head injuries, stories of bizarre behavior, and alcoholism did not raise substantial doubt as to his competency to stand trial), cert. denied, 474 U.S. 1085, 106 S.Ct. 860, 88 L.Ed.2d 899 (1986). Consequently, we hold the district court did not clearly err in finding that Petitioner was legally competent when he pled no contest on January 26, 1990. III. Finally, Petitioner argues the district court erred in finding" }, { "docid": "23239121", "title": "", "text": "his rights and Agent Burke. Agent Burke then asked Chischilly if he would provide a blood sample. Chischilly stated that he would comply and that he knew the purpose of the blood sample. When Agent Burke questioned Chischilly on this point, Chischilly responded that the blood would be compared with evidence found at the scene. Agent Burke then explained a consent form to Chischilly item by item. Chischilly signed the form and was taken to the hospital to give the blood sam- pie. The district court denied Chischilly’s motion to suppress this evidence at a pretrial hearing held on August 20, 1991. After his arraignment, Chisehilly filed a motion for a competency determination. Judge Rosenblatt granted the motion and scheduled a hearing for February 7, 1991. While assembling his psychiatric records, Chisehilly learned that in 1979 Judge Rosen-blatt, then still an Arizona state court judge, had found Chisehilly incompetent to stand trial on a four count sexual contact indictment. Following the 1979 competency hearing, Chisehilly was released from custody without a conviction or further detention. Chisehilly filed a motion requesting Judge Rosenblatt’s recusal on the basis that the judge would be reluctant to again find him incompetent after learning that Chisehilly had committed further crimes after being released without trial in 1979. Judge Ro-senblatt stated that he had no independent recollection of the 1979 competency proceedings and denied the motion for recusal. At two pretrial competency hearings on February 7 and March 6, 1991, Chisehilly offered the testimony of Dr. Otto Bendheim, a psychiatrist whose practice is described as focusing heavily on Native Americans, and Dr. Marc Walter, a neuropsychologist. The Government countered with the testimony of Dr. Alexander Don. Dr. Walter administered two neuropsycho-logical examinations of a combined duration of eight hours and interviewed members of Chischilly’s family. From this data Dr. Walter concluded that the defendant had a verbal IQ of approximately 62 and the functional level of a five- or six-year old child. Dr. Walter testified that Chisehilly could not meaningfully participate in legal proceedings and could not understand or be taught legal concepts. Dr. Walter further" }, { "docid": "23190992", "title": "", "text": "857, 96 S.Ct. 108, 46 L.Ed.2d 83 (1975)), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974). The test that must be applied in determining competency to stand trial is set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). There the Court held: [I]t is not enough for the district judge to find that “the defendant [is] oriented to time and place and [has] some recollection of events,” but that the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 402-03, 80 S.Ct. at 788-89 (citations omitted). Accord, De Kaplany v. Enomoto, 540 F.2d 975, 979 (9th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). The Government has the burden of demonstrating by a preponderance of the evidence that the defendant is competent to stand trial. United States v. Hutson, 821 F.2d 1015, 1018 (5th Cir.1987). We have examined the record to determine whether the district court’s findings are supported by the evidence in the record. Dr. Jeffrey Harrison, a psychologist, testified that “Mr. Frank is able to assist his attorney at this time, that he is able to with education from his attorney understand the proceedings, and that there is no significant mental illness that would interfere with his ability to assist and understand the proceedings.” He stated that although Frank suffered from depression, this condition did not interfere with his ability to recall the facts surrounding the case, or his awareness of the wrongfulness of his actions. Dr. Alexander Don, a psychiatrist, testified that while Frank’s intelligence was “low average,” he was able to relate the charges against him and the identity of the victims. Frank was also able to give a detailed account of the events surrounding the" }, { "docid": "23239127", "title": "", "text": "that “judicial rulings alone almost never constitute valid basis [sic] for a bias or partiality motion” and per se “cannot possibly show reliance upon an extrajudicial source” in a judge’s deliberations. Id. (emphasis added); see also, United States v. Hamilton, 792 F.2d 837, 839 (9th Cir.1986) (affirming refusal to recuse where trial judge stated that he had no recollection of 15-year-old prior proceeding in which defendant had appeared before him and the record contained no evidence of bias or prejudice). Accordingly, the trial judge did not abuse his discretion in refusing to recuse himself. II. Competency to Stand Trial Chischilly asserts that his illiteracy and low level intelligence deprived him of the ability to understand factually the nature of the legal proceedings against him and to assist counsel with a reasonable degree of rational understanding. He contends that, lacking these capacities, he failed to meet the two criteria for competency to stand trial enunciated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). We review for clear error as a question of fact the district court’s finding that the Government established the defendant’s ability to stand trial by a preponderance of the evidence. United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir.1991). On defendant’s appeal the evidence relating to his competency must be considered in the light most favorable to the Government. United States v. Frank, 956 F.2d 872, 874 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992). Viewed in this light, the record reveals a rough balance of testimony militating against and in favor of Chischilly’s competency to stand trial. At the competency hearing, Dr. Bendheim initially testified that Chischilly would be incompetent to stand trial. The district court reasonably discounted this testimony after Dr. Bendheim’s subsequent diagnoses became increasingly uncertain as trial approached. Later examinations revealed improvements in Chischilly’s recollection and attention span in response to treatment with psychotropic medication. By the time of the final competency hearing, one year after his initial examination of Chischilly, Dr. Bendheim acknowledged that he had changed his opinion" }, { "docid": "17153992", "title": "", "text": "him sent away for some other evaluation, because as I say the principal concern I have is that Mr. Hoskie may not operate so well in the environment of the courtroom, I think he operates more effectively in the environment of the reservation, and that is where he would go at some time and [be] put back in these situations, at least as it was here with this victim. R.T.S. 12 (emphasis added). At the conclusion of the hearing, the court sentenced Hoskie to serve 180 months in prison and to a term of supervised release of 60 months. Hoskie filed a timely notice of appeal. He challenges his conviction on grounds that he was incompetent to stand trial and that the district court erred in denying him an insanity instruction. Because we re verse on the ground of incompetency, we do not reach the insanity issue. II. Discussion A defendant is incompetent to stand trial if the court finds “by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense_” 18 U.S.C. § 4241(d). A district court’s finding that a defendant is competent to stand trial is a question of fact which we review for clear error. United States v. Frank, 933 F.2d 1491, 1493 (9th Cir.1991); United States v. Lindley, 774 F.2d 993, 993 & n. 1 (9th Cir.1985). We are required to consider the evidence in the light most favorable to the government. Frank, 933 F.2d at 1493. The test that must be applied in determining competency to stand trial is set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). There the Court held: [I]t is not enough for the district judge to find that “the defendant [is] oriented to time and place and [has] some recollection of events,” but that the “test must be whether he has sufficient present ability to consult" }, { "docid": "23239129", "title": "", "text": "of Chischilly’s competency several times in view of these improvements and could not deliver a firm conclusion. As summarized by Judge Rosenblatt, at the final competency hearing Dr. Bendheim “quite frankly and honestly and openly testifies to the court that he simply does not know” whether Chischilly would be competent to stand trial. Accordingly, Dr. Bendheim’s later testimony neutralized his original, negative diagnosis. The other expert called by Chischilly, Dr. Walter, offered more consistent but, viewed in the light most favorable to the Government, not especially compelling testimony as to Chischilly’s incompeteney to stand trial. Judge Rosenblatt discounted Dr. Walter’s conclusion that Chischilly was unfit to stand trial on the not clearly unreasonable or erroneous basis that the doctor, a neuropsychologist, had offered medical conclusions straying beyond the realm of his training or expertise. The Government’s expert witness, Dr. Don, concurred with the defense experts’ assessment that Chischilly had a faulty or at least selective memory, structural brain abnormalities and a history of behavioral problems. However, Dr. Don did not agree that Chischilly was mentally retarded, illiterate, brain damaged or incompetent to stand trial. Thus, the district court was presented with two contradictory diagnoses of Chischilly’s competency and one tentative, variable assessment. To the extent that Judge Rosen-blatt, from his courtroom observations, assigned more weight to the Government’s expert than to the contrary, at times inconclusive conclusions of experts retained by Chis-chilly, he was acting within his discretion to do so as a part of his fact-finding and credibility-weighing functions. See Frank, 956 F.2d at 875 (noting that “a district court is free to assign greater weight to the findings of experts produced by the Government”); United States v. Lindley, 774 F.2d 993 (9th Cir.1985) (concluding that “the district court did not clearly err in assigning more weight to the findings of [the government’s] psychiatrists”). Accordingly, we conclude that the district court did not clearly err in finding that Chischilly was fit to stand trial. III. Voluntariness of Confession and Consent to Give Blood Sample Chischilly contends that the district court’s ruling that his confession was voluntary kept him from" }, { "docid": "23239128", "title": "", "text": "a question of fact the district court’s finding that the Government established the defendant’s ability to stand trial by a preponderance of the evidence. United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir.1991). On defendant’s appeal the evidence relating to his competency must be considered in the light most favorable to the Government. United States v. Frank, 956 F.2d 872, 874 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992). Viewed in this light, the record reveals a rough balance of testimony militating against and in favor of Chischilly’s competency to stand trial. At the competency hearing, Dr. Bendheim initially testified that Chischilly would be incompetent to stand trial. The district court reasonably discounted this testimony after Dr. Bendheim’s subsequent diagnoses became increasingly uncertain as trial approached. Later examinations revealed improvements in Chischilly’s recollection and attention span in response to treatment with psychotropic medication. By the time of the final competency hearing, one year after his initial examination of Chischilly, Dr. Bendheim acknowledged that he had changed his opinion of Chischilly’s competency several times in view of these improvements and could not deliver a firm conclusion. As summarized by Judge Rosenblatt, at the final competency hearing Dr. Bendheim “quite frankly and honestly and openly testifies to the court that he simply does not know” whether Chischilly would be competent to stand trial. Accordingly, Dr. Bendheim’s later testimony neutralized his original, negative diagnosis. The other expert called by Chischilly, Dr. Walter, offered more consistent but, viewed in the light most favorable to the Government, not especially compelling testimony as to Chischilly’s incompeteney to stand trial. Judge Rosenblatt discounted Dr. Walter’s conclusion that Chischilly was unfit to stand trial on the not clearly unreasonable or erroneous basis that the doctor, a neuropsychologist, had offered medical conclusions straying beyond the realm of his training or expertise. The Government’s expert witness, Dr. Don, concurred with the defense experts’ assessment that Chischilly had a faulty or at least selective memory, structural brain abnormalities and a history of behavioral problems. However, Dr. Don did not agree that Chischilly was mentally" }, { "docid": "17153993", "title": "", "text": "disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense_” 18 U.S.C. § 4241(d). A district court’s finding that a defendant is competent to stand trial is a question of fact which we review for clear error. United States v. Frank, 933 F.2d 1491, 1493 (9th Cir.1991); United States v. Lindley, 774 F.2d 993, 993 & n. 1 (9th Cir.1985). We are required to consider the evidence in the light most favorable to the government. Frank, 933 F.2d at 1493. The test that must be applied in determining competency to stand trial is set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). There the Court held: [I]t is not enough for the district judge to find that “the defendant [is] oriented to time and place and [has] some recollection of events,” but that the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 402, 80 S.Ct. at 788. Accord, de Kaplany v. Enomoto, 540 F.2d at 979. The government has the burden of demonstrating by a preponderance of the evidence that the defendant is competent to stand trial. Frank, 933 F.2d at 1494 (citing United States v. Hutson, 821 F.2d 1015, 1018 (5th Cir.1987)). Taking the evidence in a light most favorable to the government, we find that the district court committed clear error in finding that the government met its required burden. Our finding of clear error turns in part on our sense that the district court itself was not convinced that Hoskie was competent, but was unwilling to find incompetency in light of its firm conviction that Hoskie posed a danger to society. More fundamentally, however, the testimony of the government expert failed to address the principal concerns of the competency inquiry, i.e. whether Hoskie could comprehend" }, { "docid": "23511525", "title": "", "text": "observed that Dr. Alexander’s opinion that Petitioner is mentally retarded and incompetent to understand legal proceedings conflicted with the findings of Dr. Thompson and the two prior evaluations reviewed by Mitchell in his investigations. The district court found that Dr. Alexander’s findings were based on Petitioner’s intentional misrepresentation of his own conditions. The district court noted that Petitioner’s claimed inability to read or write was patently false and refuted by correspondence he wrote while in custody. In sum, the district court found that Petitioner had sufficient ability to consult with Mitchell with a reasonable degree of rational understanding, and that Petitioner had a rational and factual understanding of the charges and proceedings against. Consequently, the district court concluded that Petitioner was competent when he entered the plea and remained competent at the time of the habeas proceeding. The record amply supports the district court’s conclusion that Petitioner was competent at the time he pled no contest. Merely by highlighting Dr. Alexander’s testimony, Petitioner has failed to demonstrate that the district court clearly erred in finding that he was competent to plea. See United States v. Frank, 956 F.2d 872, 875 (9th Cir.1991) (“Clear error is not demonstrated by pointing to conflicting evidence in the record.”), cert. denied, — U.S. -, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992); United States v. Lindley, 774 F.2d 993, 993 (9th Cir.1985) (“The district court did not clearly err in assigning more weight to the findings [of competence] of [two government] psychiatrists than to the contrary conclusion of a psychiatrist retained by the defense.”). We therefore hold that the district court did not clearly err in rejecting the testimony of Dr. Alexander and finding that Petitioner was competent to plea based on the testimony of Dr. Thompson. B. Petitioner also argues that the district court clearly erred in finding that he was competent when he is borderline mentally retarded, has a history of mental illness, and has been prescribed psychotropic medication and abused drugs and alcohol. Although Petitioner is of low intelligence, the district court found that he is not mentally retarded. Based on our" } ]

[ { "docid": "23158383", "title": "", "text": "at the time of his arrest was his own, and the rest belonged to the owners of Christopher’s and the garage. Roman also called several witnesses who testified, inter alia, that Roman spoke little or no English. A bilingual teacher gave his expert opinion that Roman was not capable of carrying on a conversation in English. The jury found Roman guilty on all counts, and he was sentenced as described above. II. DISCUSSION On appeal, Roman challenges, inter alia, (1) the general sufficiency of the evidence to convict him, (2) the manner of submission to the jury of the elements of the CCE charge and the sufficiency of the evidence to support that charge, (3) the trial court’s instructions to the jury, and (4) the court’s failure to combine his distribution and conspiracy convictions with his CCE conviction. We have considered all of his contentions on appeal and find merit only in the contention that the conspiracy and CCE convictions should have been combined. A. The General Sufficiency of the Evidence Roman’s general challenge to the sufficiency of the evidence focuses on the testimony of Carter. He contends that (1) Carter’s testimony as a whole was unworthy of belief because it was largely uncorroborated, and (2) her testimony as to her conversations directly with Roman was incredible because Carter did not speak Spanish and Roman neither spoke nor understood English. Neither contention has merit. In challenging the sufficiency of the evidence on appeal, a defendant bears a heavy burden. United States v. Esdaille, 769 F.2d 104, 108 (2d Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985). We must view the evidence in the light most favorable to the government, Glosser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and decide whether “ ‘the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt,’ ” United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986) (quoting United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert." } ]

[ { "docid": "10051896", "title": "", "text": "the jury might fairly have concluded guilt beyond a reasonable doubt, United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). In order to prove a charge of conspiracy, the government need not present evidence of an explicit agreement; proof of a tacit understanding will suffice. United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. Rubin, 844 F.2d at 984. The coconspirators need not have agreed on the details of the conspiracy, so long as they have agreed on the essential nature of the plan. United States v. Bagaric, 706 F.2d at 63. The defendant’s knowledge of the conspiracy and participation in it with the requisite criminal intent may be established through circumstantial evidence. See, e.g., United States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied, - U.S. -, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990). Any challenge to the weight of the evidence is for argument to the jury, not a ground for reversal on appeal. See, e.g., United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Skowronski has not met his heavy burden on this appeal. Here, the evidence included the early references by Tinnirello and DiSomma to “Richie” as their inside man who wanted them to rob the store; the efforts of Skowronski himself, after being visited by the FBI, to get Tinnirello to go to a pay telephone so that he could be told of the serious trouble they were in in light of that visit; Tinnirello’s identification of Skowronski’s voice as that of “Richie”; DiSomma’s confirmation of that identification and of the fact that Richie had just been “paid a visit”; and the later discussion between Tinnirello and DiSomma as to how much should be revealed to “Richie’s mother.” In" }, { "docid": "22834696", "title": "", "text": "law, be guilty of a felony.... Willfulness, as used in such a statute, means the “ ‘voluntary, intentional violation of a known legal duty.’ ” Cheek v. United States, — U.S. -, 111 S.Ct. 604, 610, 112 L.Ed.2d 617 (1991); see also United States v. Gurary, 860 F.2d 521, 523 (2d Cir.1988) (“In the context of [26 U.S.C. § 7206(2) ], ‘willfully’ means an intentional violation of a known legal duty.”), cert. denied, 490 U.S. 1035, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). Count 1 charged conspiracy to evade the payment and impede the collection of federal excise taxes by the invoicing of Tun Yung on sales to J & J, and since the essence of any conspiracy is agreement, the government was required to present evidence from which it could reasonably be inferred that the defendant in question knew of the illegal venture and knowingly joined and participated in it. See, e.g., United States v. Labat, 905 F.2d 18, 21 (2d Cir.1990); United States v. Villegas, 899 F.2d 1324, 1338 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Sanchez Solis, 882 F.2d 693, 696 (2d Cir.1989). In order to prove conspiracy, the government need not present evidence of an explicit agreement; proof of a tacit understanding will suffice. United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. Rubin, 844 F.2d 979, 984 (2d Cir.1988). The coconspirators need not have agreed on the details of the conspiracy, so long as they have agreed on the essential nature of the plan, United States v. Bagaric, 706 F.2d 42, 63 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); and their goals need not be congruent, so long as they are not at cross-purposes, United States v. Beech-Nut Nutrition Corp., 871 F.2d at 1192; United States v. Heinemann, 801 F.2d 86, 92 n. 1 (2d Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1308, 94 L.Ed.2d 163 (1987). The defendant’s" }, { "docid": "22078921", "title": "", "text": "so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, see, e.g., United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992); United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). A challenge to the weight of the evidence or the credibility of a witness is a matter for argument to the jury, not a ground for reversal on appeal. See, e.g., United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990); United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Thus, the defendant who makes a sufficiency challenge bears a heavy burden. Only Rosa, in challenging his conviction for attempted possession of heroin, has carried that burden in this case. 1. Rosa’s Conviction of Attempt In order to establish that a person is guilty of an attempt to commit a crime, the government must prove that he “(1) had the intent to commit the crime, and (2) engaged in conduct amounting to a ‘substantial step’ towards the commission of the crime.” United States v. Martinez, 775 F.2d 31, 35 (2d Cir.1985). A “substantial step,” although it may be less than the last act necessary before the actual commission of the substantive crime, entails “more than mere preparation.” United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981); see also United States v. Cea, 914 F.2d 881, 888-89 (7th Cir.1990). “[E]vidence of a verbal agreement alone, without more, is insufficient as a matter of law to support an attempt conviction.” United States v. Delvecchio, 816 F.2d 859, 862 (2d Cir.1987). In Delvecchio, the defendants who were charged with attempt to possess narcotics had met with a government agent and a government informant to negotiate a narcotics transaction. At the meeting, the defendants agreed to purchase 5 kilograms of heroin for $195,000 a kilogram;" }, { "docid": "7206341", "title": "", "text": "v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. See United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal. See United States v. Skowronski, 968 F.2d at 247; United States v. Parker, 903 F.2d at 97; United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Thus, the defendant who makes a sufficiency challenge bears a heavy burden. Gordon has not carried that burden with respect to either the conspiracy count or the substantive counts. In order to prove a conspiracy, the government “need not present evidence of an explicit agreement; proof of a tacit understanding will suffice.” United States v. Skowronski, 968 F.2d at 247; see United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989). Further, a defendant’s knowledge of the conspiracy and his participation in it with criminal intent may be established through circumstantial evidence. See United States v. Skowronski, 968 F.2d at 247; United States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990). Such circumstantial evidence may include acts that exhibit a consciousness of guilt, such as false exculpatory statements, see, e.g., United States v. Rea, 958 F.2d 1206, 1220 (2d Cir.1992), and attempts to influence the testimony of a witness, see, e.g., United States v. Macklin, 927 F.2d" }, { "docid": "22078931", "title": "", "text": "violation of 18 U.S.C. § 1959. We reject his challenges. The matter of whether the evidence has established one conspiracy or more than one is a question of fact for a properly instructed jury. See, e.g., United States v. Aracri, 968 F.2d 1512, 1519 (2d Cir.1992); United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1192 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. Alessi, 638 F.2d 466, 472 (2d Cir.1980). We cannot disturb the jury’s verdict if the evidence, viewed in the light most favorable to the government, could have led a reasonable juror to conclude beyond a reasonable doubt “(1) that the scope of the criminal enterprise proven fits the pattern of the single conspiracy alleged in the indictment, and (2) that the defendant participated in the alleged enterprise with a consciousness of its general nature and extent.” United States v. Beech-Nut Nutrition Corp., 871 F.2d at 1192. There was ample evidence from the many accomplice witnesses, who testified as to the Organization’s activities, from which a rational juror could have inferred that there was one conspiracy, rather than several. Hernandez has made no challenge to the instructions given to the jury on this issue. Further, though there was some indication that Hernandez was not a member of the Organization in 1987 or 1988, there was also ample evidence that Hernandez, who had first joined the Organization in 1986, was running Organization spots in 1989 with Lopez and two other long-time Organization members. Thus, a reasonable juror could have concluded beyond a reasonable doubt that in 1989 Hernandez was running spots on behalf of, rather than in competition with, the Organization. Hernandez’s challenge to his § 1959 conviction for the Hambrick murder is also meritless. When Hernandez became an Organization worker in 1986 he performed many lower-level tasks; he rose to become one of its leaders in the summer of 1989. On Labor Day in 1989, Hernandez killed Ham-brick, an Organization lookout for a spot run by Hernandez. An eyewitness testified that he saw Hernandez, who was armed, arguing" }, { "docid": "22834697", "title": "", "text": "— U.S. -, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Sanchez Solis, 882 F.2d 693, 696 (2d Cir.1989). In order to prove conspiracy, the government need not present evidence of an explicit agreement; proof of a tacit understanding will suffice. United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. Rubin, 844 F.2d 979, 984 (2d Cir.1988). The coconspirators need not have agreed on the details of the conspiracy, so long as they have agreed on the essential nature of the plan, United States v. Bagaric, 706 F.2d 42, 63 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); and their goals need not be congruent, so long as they are not at cross-purposes, United States v. Beech-Nut Nutrition Corp., 871 F.2d at 1192; United States v. Heinemann, 801 F.2d 86, 92 n. 1 (2d Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1308, 94 L.Ed.2d 163 (1987). The defendant’s knowledge of the conspiracy and participation in it with the requisite criminal intent may be established through circumstantial evidence. See, e.g., United States v. Villegas, 899 F.2d at 1338-39; United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990); United States v. Young, 745 F.2d 733, 762 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). A defendant need not have joined a conspiracy at its inception in order to incur liability for the unlawful acts of the conspiracy committed both before and after he or she became a member. United States v. Blackmon, 839 F.2d 900, 911 (2d Cir.1988); United States v. Guillette, 547 F.2d 743, 751 (2d Cir.1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). At the trial of the present case, Sarowitz was allowed to testify that Rea “had to” know that the reason he was asked to list Tun Yung on the invoices as the purchaser of the gasoline" }, { "docid": "22172445", "title": "", "text": "inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). These principles apply whether the evi dence being reviewed is direct or circumstantial. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The fact that a conviction may be supported only by the uncorroborated testimony of a single accomplice is not a basis for reversal if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. United States v. Bernstein, 533 F.2d 775, 791 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). Any lack of corroboration goes merely to the weight of the evidence, not to its sufficiency. See, e.g., United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, — U.S.-, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Whether or not there is corroboration for an accomplice’s testimony, the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal, see id., and we must defer to the jury’s assessments of both the weight of the evidence and the credibility of the witnesses, United States v. Stratton, 779 F.2d 820, 828 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986); United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983). The evidence here was ample to support the convictions of Parker and Moon. Though Smith was attacked on cross-examination with respect to various past untruths, his description of the events, including Moon’s orchestration of the robbery and the role Moon said Parker was to play, was not incredible on its face. Even had Smith’s testimony been the only evidence against Parker and Moon, we would not be entitled to overturn the jury’s verdict against them. In addition, Smith’s description of Parker’s role was complemented by other" }, { "docid": "23310341", "title": "", "text": "a “conscious avoidance” charge with respect to his knowledge that he was participating in a kidnaping. Such a charge is appropriate where the defendant claims to lack “some specific aspect of knowledge necessary to conviction but where the evidence may be construed as deliberate ignorance.” United States v. Lanza, 790 F.2d 1015, 1022 (2d Cir.), cert. denied, 479 U.S. 861, 107 S.Ct. 211, 93 L.Ed.2d 141 (1986); see United States v. Mang Sun Wong, 884 F.2d 1537, 1541 (2d Cir.1989), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990); United States v. Civelli 883 F.2d 191, 194-95 (2d Cir.), cert. denied, 493 U.S. 966, 110 S.Ct. 409, 107 L.Ed.2d 374 (1989). An adequate evidentiary foundation for the charge exists when a rational juror could conclude beyond a reasonable doubt that the defendant “was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.” United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir.1993). Where there is sufficient evidence that the defendant was a member of a conspiracy, a conscious-avoidance instruction may properly be given, permitting the jury to convict if it finds that the defendant deliberately attempted to remain ignorant of the conspiracy’s precise goals. See, e.g., United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1195 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. Lanza, 790 F.2d at 1022-23. It is plain in this case that the government’s evidence and Aulieino’s testimony provided an appropriate basis for the delivery of a con scious-avoidance charge with respect to his claimed lack of knowledge that a goal of the conspiracy he joined was kidnaping. D. Other Contentions Defendants' other contentions include challenges to the use of an anonymous jury, to an alleged violation of their right to counsel, and to the calculations of the sentences of Rug-giero and Aulicino. We reject all of their challenges. 1. The Use of an Anonymous Jury Jury anonymity may be warranted when the jury needs protection, as when, for example, the government has demonstrated a defendant's \"willingness" }, { "docid": "22172444", "title": "", "text": "imposed on them. Phillips challenges only the prosecutor’s summation at his second trial. We have considered all of their arguments on appeal and find no basis for reversal. A. Sufficiency of the Evidence Parker and Moon challenge the sufficiency of the evidence to support their convictions largely on the grounds that (1) the principal evidence against them was testimony of Smith, who admitted having lied in various respects in the past, and that (2) since they were not present at the robbery, the remaining evidence against them was circumstantial. Their contentions have no merit. In reviewing a challenge to the sufficiency of the evidence, we are required to credit every inference that could have been drawn in the government’s favor, United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983), and to affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). These principles apply whether the evi dence being reviewed is direct or circumstantial. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The fact that a conviction may be supported only by the uncorroborated testimony of a single accomplice is not a basis for reversal if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. United States v. Bernstein, 533 F.2d 775, 791 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). Any lack of corroboration goes merely to the weight of the evidence, not to its sufficiency. See, e.g., United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, — U.S.-, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Whether or not there is corroboration for an" }, { "docid": "5365707", "title": "", "text": "Both the existence of the conspiracy and the defendant’s participation in it with the requisite criminal intent may be established through circumstantial evidence. See, e.g., United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990); United States v. Young, 745 F.2d 733, 762 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). The defendant need not know the identities of all of the other conspirators, nor all of the details of the conspiracy. See Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947). Since the essence of conspiracy is the agreement and not the commission of the substantive offense that is its objective, the offense of conspiracy may be established even if the collaborators do not reach their goal. See United States v. Abel, 258 F.2d 485, 489 (2d Cir.1958), aff'd on other grounds, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden. United States v. Adegbite, 877 F.2d 174, 179-80 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 370, 107 L.Ed.2d 356 (1989); United States v. Chang An-Lo, 851 F.2d 547, 553 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988). In reviewing such a challenge, we must credit every inference that could have been drawn in the government’s favor, United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); 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), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). Labat has not carried his burden with respect to the conspiracy count." }, { "docid": "394842", "title": "", "text": "rejected that challenge and affirmed their convictions. United States v. Perez, 112 F.3d 506 (table), 1996 WL 576001 (2d Cir.1996), cert denied, — U.S. -, 117 S.Ct. 1002, 136 L.Ed.2d 881 (1997). II. “In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden. In reviewing such a challenge, we must view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor, and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt. In order to prove a charge of conspiracy, the government need not present evidence of an explicit agreement; proof' of a tacit understanding will suffice. The coconspirators need not have agreed on the. details of the conspiracy, so long as they have agreed on the essential nature of the plan. The defendant’s knowledge of the conspiracy and participation in it with the requisite criminal intent may be established through circumstantial evidence. Any challenge to the weight of the evidence is for argument to the jury, not a ground for reversal on appeal.” United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992) (citations omitted). A. Under these principles, Rosario “has not met his heavy burden on this appeal.” Id. There was sufficient evidence from which the jury properly could have concluded that Rosario participated in a conspiracy with Perez and Trinidad to distribute and possess cocaine, which involved a carefully structured plan designed to minimize the likelihood of discovery and, if they were apprehended, of prosecution. Rosario and his companions in crime traveled together on sequentially purchased tickets on the overnight bus from New York City to Buffalo. On arriving there and leaving the bus, they had a brief discussion. They then separately walked through the bus station approximately 15 to 20 feet apart; from this the jury could have inferred that they were attempting to create the impression that they were not together: Upon leaving the bus station, however, they rejoined" }, { "docid": "22357643", "title": "", "text": "him and the district court’s instruction that his “functional presence” in the Ravenite Apartment during discussions was sufficient to prove his participation in the various conspiracies. ' A. Sufficiency of the Evidence Locascio’s challenge to the sufficiency of the evidence carries, as we have often stated, a heavy burden. In reviewing such challenges, we view the evidence in the light most favorable to the government .and credit, every inference in its favor. See United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992). Moreover, we will affirm the conviction if any jury could have found guilt beyond a reasonable doubt based on the reasonably drawn inferences from that evidence. See id. (“Any challenge to the weight of the evidence is for argument to the jury, not a ground for reversal on appeal.”); see also. Concepcion, 983 F.2d at 382. Locascio argues that the only proof of his participation in the conspiracy was that he was present in the Ravenite apartment when some of the actions were discussed. Locascio asserts that his mere presence is not enough to prove participation. See United States v. Scarpa, 913, F.2d 993, 1004 (2d Cir.1990) (“[K]nowledge of the existence and goals of a conspiracy does not of itself make one a co-conspirator.”). Traditionally, conspiracy law has required more than “mere presence” or mere knowledge to sustain a conviction for conspiracy. See, e.g., United States v. Edwardo-Franco, 885 F.2d 1002, 1010-11 (2d Cir.1989) (holding that defendant who lived for twelve days in á single room of a house found to contain drugs in basement could not be convicted of conspiracy to possess for mere presence in house); United States v. Nusraty, 867 F.2d 759, 764-65 (2d Cir.1989) (holding that mere presence at airport when acquaintance arrived carrying drugs could not justify conspiracy conviction); United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983) (holding that defendant’s presence in apartment in which drugs were found did not sufficiently support conviction). Rather, it is necessary for the government to introduce some evidence of participation in the conspiracy in order to sustain a conviction. See id. Locascio, however, was" }, { "docid": "7206340", "title": "", "text": "a challenge to the sufficiency of the evidence to support a conviction are well established. We are to view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Maldonado-Rivera, 922 F.2d 934, 978 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991); United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); 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), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, see United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992); United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. See United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal. See United States v. Skowronski, 968 F.2d at 247; United States v. Parker, 903 F.2d at 97; United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Thus, the defendant who makes a sufficiency challenge bears a heavy burden. Gordon has not carried that burden with respect to either the conspiracy count or the substantive counts. In" }, { "docid": "22164084", "title": "", "text": "the government did offer such evidence with respect to international travel by other conspirators. He contends that, without this corroboration, the accomplice witnesses were inherently incredible. We are not persuaded. The law is well established that a federal conviction may be supported “by the uncorroborated testimony” of even a single accomplice witness “if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” United States v. Parker, 903 F.2d 91, 97 (2d Cir.1990). As this court has previously explained, the government’s failure to corroborate a witness’s testimony raises a question as to the weight a jury might choose to give that testimony, not its legal sufficiency to support a conviction. See United States v. Roman, 870 F.2d 65, 71 (2d Cir.1989) (“[A]ny lack of corroboration goes only to the weight of the evidence, not to its sufficiency. The weight is a matter for argument to the jury, not a ground for reversal on appeal.”). In this case, where three accomplice witnesses provided mutually corroborative direct evidence of the existence of the charged conspiracies and Florez’s membership in them, a sufficiency challenge based on the lack of corroborating documentary evidence must necessarily fail. To the extent Florez challenges the accomplices’ credibility based on their plea agreements with the government and their long histories of criminal and dishonest behavior, he simply repeats facts and arguments already presented to the jury. We will not attempt to second-guess a jury’s credibility determination on a sufficiency challenge. See United States v. Autuori, 212 F.3d 105, 118 (2d Cir.2000) (“It is not for the court on a Rule 29 motion to make credibility determinations .... ”); see also United States v. Rea, 958 F.2d 1206, 1221-22 (2d Cir.1992) (“Matters of the choice between competing inferences, the credibility of the witnesses, and the weight of the evidence are within the province of the jury, and we are not entitled to second-guess the jury’s assessments.”). Rather, we will assume that the jury “resolve[d] all issues of credibility in favor of the prosecution.” United States v. Khan, 787 F.2d 28, 34" }, { "docid": "22078920", "title": "", "text": "court’s evidentiary rulings, either singly or in combination, had any effect on the outcome of the trial. B. Challenges to the Sufficiency of the Evidence Several of the defendants contend that the evidence adduced at trial was insufficient to support certain of their convictions. The general principles governing review of such claims are well established. We are to view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor, see, e.g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Maldonado-Rivera, 922 F.2d 934, 978 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991); United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, see, e.g., United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992); United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). A challenge to the weight of the evidence or the credibility of a witness is a matter for argument to the jury, not a ground for reversal on appeal. See, e.g., United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990); United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Thus, the defendant who makes a sufficiency challenge bears a heavy burden. Only Rosa, in challenging his conviction for attempted possession of heroin, has carried that burden in this case. 1. Rosa’s Conviction of Attempt In order to establish that a person is guilty of an attempt to commit" }, { "docid": "7206342", "title": "", "text": "order to prove a conspiracy, the government “need not present evidence of an explicit agreement; proof of a tacit understanding will suffice.” United States v. Skowronski, 968 F.2d at 247; see United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989). Further, a defendant’s knowledge of the conspiracy and his participation in it with criminal intent may be established through circumstantial evidence. See United States v. Skowronski, 968 F.2d at 247; United States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990). Such circumstantial evidence may include acts that exhibit a consciousness of guilt, such as false exculpatory statements, see, e.g., United States v. Rea, 958 F.2d 1206, 1220 (2d Cir.1992), and attempts to influence the testimony of a witness, see, e.g., United States v. Macklin, 927 F.2d 1272, 1279 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991). Gordon, in support of his argument that there was insufficient evidence that he was a member of the conspiracy to import cocaine, relies principally on United States v. Nusraty, 867 F.2d 759 (2d Cir.1989). His reliance is misplaced, for Nusraty is easily distinguishable. There, one Detrich was arrested at JFK after arriving from India with luggage containing a suit in which packets of heroin had been secreted. Det-rich told the government agents that he was unaware of the heroin and that a friend had asked him to bring the suit to the United States for the friend’s brother, the defendant Nusraty, for Nusraty’s imminent wedding. Nusraty, however, gave no indication that he knew anything whatever about the suit or the heroin. When Detrich tried to make a controlled delivery of the suit, he first mentioned to Nusraty that he had heard Nusraty was to be married soon; Nusraty said that he was not getting married. Detrich then said that" }, { "docid": "10051895", "title": "", "text": "the evidence to support his conviction, a defendant bears a heavy burden. United States v. Maldonado-Rivera, 922 F.2d 934, 978 (2d Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991); United States v. Rubin, 844 F.2d 979, 983 (2d Cir.1988); United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). In reviewing such a challenge, we must view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). In order to prove a charge of conspiracy, the government need not present evidence of an explicit agreement; proof of a tacit understanding will suffice. United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. Rubin, 844 F.2d at 984. The coconspirators need not have agreed on the details of the conspiracy, so long as they have agreed on the essential nature of the plan. United States v. Bagaric, 706 F.2d at 63. The defendant’s knowledge of the conspiracy and participation in it with the requisite criminal intent may be established through circumstantial evidence. See, e.g., United States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied, - U.S. -, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Tutino, 883 F.2d 1125, 1129 (2d" }, { "docid": "22078930", "title": "", "text": "the proposed sale to Agee. The evidence provided no basis on-which a rational juror could have found beyond a reasonable doubt that Rosa had taken a substantial step toward possessing heroin for resale to Agee, and it therefore was insufficient to support Rosa’s conviction for attempt. Accordingly, we reverse Rosa’s conviction on count 12 and remand for dismissal of that count. Since it is unclear what effect, if any, acquittal on that count has on his sentence, we vacate the judgment and remand for re-sentencing. 2. Hernandez’s Conspiracy and § 1959 Convictions Hernandez makes two sufficiency challenges. First, he contends that there was insufficient evidence to support his conviction of conspiracy, arguing that in 1989 he was a competitor, not a member, of the Organization, and that in any event the evidence showed that the Organization consisted of multiple independent conspiracies, not one overall conspiracy. Second, he contends the evidence was insufficient to establish that he murdered Hambrick and that he did so in order to maintain or increase his position in the Organization in violation of 18 U.S.C. § 1959. We reject his challenges. The matter of whether the evidence has established one conspiracy or more than one is a question of fact for a properly instructed jury. See, e.g., United States v. Aracri, 968 F.2d 1512, 1519 (2d Cir.1992); United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1192 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. Alessi, 638 F.2d 466, 472 (2d Cir.1980). We cannot disturb the jury’s verdict if the evidence, viewed in the light most favorable to the government, could have led a reasonable juror to conclude beyond a reasonable doubt “(1) that the scope of the criminal enterprise proven fits the pattern of the single conspiracy alleged in the indictment, and (2) that the defendant participated in the alleged enterprise with a consciousness of its general nature and extent.” United States v. Beech-Nut Nutrition Corp., 871 F.2d at 1192. There was ample evidence from the many accomplice witnesses, who testified as to the Organization’s activities," }, { "docid": "23427908", "title": "", "text": "at the scene of a crime will not be enough to show that he was a member of the conspiracy, United States v. Soto, 716 F.2d 989, 991-92 (2d Cir.1983), his presence may establish his membership in the conspiracy if all of the circumstances considered together show that by his presence he meant to advance the goals of that conspiracy, see, e.g., United States v. Gordils, 982 F.2d 64, 71 (2d Cir.1992), cert. denied, 507 U.S. 1054, 113 S.Ct. 1953, 123 L.Ed.2d 657 (1993). Further, a “defendant’s participation in a single transaction can, on an appropriate record, suffice to sustain a charge of knowing participation in an existing conspiracy,” United States v. Miranda-Ortiz, 926 F.2d 172, 176 (2d Cir.), cert. denied, 502 U.S. 928, 112 S.Ct. 347, 116 L.Ed.2d 287 (1991); see also United States v. Zabare, 871 F.2d 282, 287 (2d Cir.), cert. denied, 493 U.S. 856, 110 S.Ct. 161, 107 L.Ed.2d 119 (1989), if the other evidence permits an inference that the defendant had knowledge of the conspiracy and intended to join, see, e.g., United States v. Miranda-Ortiz, 926 F.2d at 176. In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden. In reviewing such a challenge, we view the evidence “in the light most favorable to the government,” United States v. Gordon, 987 F.2d 902, 906 (2d Cir.1993), drawing all inferences and resolving all issues of credibility in the government’s favor, see, e.g., United States v. Weiss, 930 F.2d 185, 191 (2d Cir.), cert. denied, 502 U.S. 842, 112 S.Ct. 133, 116 L.Ed.2d 100 (1991). i‘[P]ieces of evidence must be viewed in conjunction, not in isolation,” United States v. Podlog, 35 F.3d 699, 705 (2d Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 954, 130 L.Ed.2d 897 (1995), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, see, e.g., United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). The weight of the evidence is" }, { "docid": "2698187", "title": "", "text": "where prosecutor lambasted defense bar for representing drug dealers); Burse, 531 F.2d at 1154-55 (new trial ordered where prosecutor, inter alia, claimed to “know” certain testimony was true, incorrectly recapped trial testimony, implied that defense attorney manipulated his witnesses, and commented on high incidence of bank robbery, leaving open inference that general trend was evidence of defendant’s guilt). 5. Sufficiency of the Evidence Moloney further claims that the evidence was legally insufficient to prove the existence of the single conspiracy charged in the indictment. To succeed, a challenge to the sufficiency of the evidence must satisfy demanding criteria. See United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). We review the evidence in the light most favorable to the government, United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994), drawing all inferences and resolving all issues of credibility in its favor, United States v. Khan, 787 F.2d 28, 34 (2d Cir.1986). We must uphold Moloney’s conviction if a rational trier of fact could have concluded beyond a reasonable doubt that the scope of the criminal enterprise proven at trial matches the single conspiracy alleged in the indictment and that the defendant participated in the alleged enterprise with consciousness of its general nature and extent. United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1192 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989). Moloney argues that the proof showed the existence of multiple conspiracies. However, “a single conspiracy is not transformed into multiple conspiracies merely by virtue of the fact that it may involve two or more phases or spheres of operation.” United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991). The robbery of the Brinks facility and the possession of the proceeds could reasonably have been found by a jury to be part of a single conspiracy. Cf. United States v. Potamitis, 739 F.2d 784, 788 (2d Cir.) (armed robbery and concealment of proceeds are part of" } ]

[ { "docid": "22972306", "title": "", "text": "Fla. Stat. § 943.0435. Ambert traveled from Florida back to California on July 9, 2007. He returned to Florida on July 11, 2007 and was arrested in Jacksonville. On September 18, 2007, Ambert was charged in a superseding federal indictment filed in the United States District Court for the Northern District of Florida with traveling in interstate commerce to Florida, and failing to register with the State of Florida, under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250(a). Ambert moved to dismiss the indictment, arguing that the indictment was improper because Congress did not intend SORNA to apply to his offense based on his dates of travel. Moreover, he claimed that SORNA was unconstitutional because the statute amounted to: 1) an excessive delegation of legislative authority; 2) an impermissible ex post facto law; 3) a violation of the commerce clause; 4) a violation of his procedural and substantive due process rights; 5) an impermissibly vague travel requirement; and 6) a violation of his right to travel. Soon thereafter, the district court denied the defendant’s motion to dismiss. Ambert entered a conditional plea of guilty pursuant to an agreement that allowed him to preserve the right to appeal the denial of his motion to dismiss. See Fed. R.Crim.P. 11(a)(2). On April 21, 2008, he was sentenced to a thirty-seven month term of imprisonment and a twenty-five year term of supervised release. This timely appeal followed. II. We review a district court’s denial of a motion to dismiss for abuse of discretion. See United States v. Madera, 528 F.3d 852, 854 (11th Cir.2008). However, this appeal raises a number of issues concerning statutory interpretation and constitutional law, which we review de novo. United States v. Castro, 455 F.3d 1249, 1251 (11th Cir.2006). SORNA was enacted in July 2006 “to protect the public from sex offenders and offenders against children ...” by establishing “a comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901. Indeed, the statute was designed “to track the interstate movement of sex offenders.” United States v. Howell, 552 F.3d 709," } ]

[ { "docid": "8681911", "title": "", "text": "as Felts’s own conduct renders this defense unavailable. Under any conceivable definition of the word “register,” Felts did not register. There is no question that Felts failed at a minimum to update his address information when he moved, with a minor, to Florida and Puerto Rico. Felts cites no specific inconsistencies between Tennessee law and SORNA that would have rendered it “impossible for [him] to comply with SORNA in Tennessee.” Appellant Br. at 17. Failing to actually register lies at the core of all sex-offender registry offenses, whether the state is SORNA-compliant or not. Felts clearly did not comply with the Tennessee law in effect at the time, which was consistent with SORNA insofar as it provided for and required registration with a registry, and thus there is no due-process problem. This claim fails. Ill Felts also argues that retroactive application of SORNA violates the Constitution’s Ex Post Facto Clause, as it in creases the punishments for Felts’s earlier crimes. This argument has been consistently rejected. In Smith v. Doe, the Supreme Court upheld Alaska’s sex-offender-registration statute, finding that it was not punitive, but civil in nature, and not in violation of the Ex Post Facto Clause. 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Relying on Smith, circuit courts have consistently held that SORNA does not violate the Ex Post Facto Clause. See, e.g., United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir.2010); Guzman, 591 F.3d at 94 (2d Cir.2010); Shenandoah, 595 F.3d at 158-59; George, 625 F.3d at 1131; Gould, 568 F.3d at 466; United States v. Young, 585 F.3d 199, 203-06 (5th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir.2009); United States v. May, 535 F.3d 912, 919-20 (8th Cir.2008), abrogated on other grounds by Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); Hinckley, 550 F.3d at 936 (10th Cir.2008). Felts attempts — to little avail — to distinguish SORNA from the Alaska statute in question, but fails to address the unanimous consensus among the circuits that SORNA does not violate the Ex Post Facto" }, { "docid": "8681912", "title": "", "text": "sex-offender-registration statute, finding that it was not punitive, but civil in nature, and not in violation of the Ex Post Facto Clause. 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Relying on Smith, circuit courts have consistently held that SORNA does not violate the Ex Post Facto Clause. See, e.g., United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir.2010); Guzman, 591 F.3d at 94 (2d Cir.2010); Shenandoah, 595 F.3d at 158-59; George, 625 F.3d at 1131; Gould, 568 F.3d at 466; United States v. Young, 585 F.3d 199, 203-06 (5th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir.2009); United States v. May, 535 F.3d 912, 919-20 (8th Cir.2008), abrogated on other grounds by Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); Hinckley, 550 F.3d at 936 (10th Cir.2008). Felts attempts — to little avail — to distinguish SORNA from the Alaska statute in question, but fails to address the unanimous consensus among the circuits that SORNA does not violate the Ex Post Facto Clause. SORNA provides for a conviction for failing to register; it does not increase the punishment for the past conviction. Felts’s crime of failing to update his sex offender registry after the enactment of SORNA was entirely separate from his crime of rape of a child and aggravated sexual battery. IV Next, Felts argues that SORNA’s “grant of power to the Attorney General to make it retroactive is unconstitutional” as “this provision effectively delegates broad-ranging legislative powers to the Attorney General, in violation of the nondelegation doctrine.” Appellant Br. at 24. SORNA delegates to the Attorney General the authority to decide how the registration requirements will be applied to sex offenders convicted “before July 27, 2006 or its implementation in a particular jurisdiction.” 42 U.S.C. § 16913(d). Felts relies on precedents from before the New Deal’s transformation of the Supreme Court—such as Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446 (1935) and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570" }, { "docid": "22300343", "title": "", "text": "see also United States v. Brown, 586 F.3d 1342, 1347-49 (11th Cir.2009); United States v. George, 579 F.3d at 965; United States v. Gould, 568 F.3d 459, 463-66 (4th Cir.2009). Furthermore, the Attorney General has the authority both to “issue guidelines and regulations to interpret and implement [SORNA],” 42 U.S.C. § 16912(b), and to “specify the applicability of the requirements of [SORNA] to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction,” id. § 16913(d). The Attorney General has also issued regulations clarifying that “[t]he requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3; see also National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38,030, 38,046-47 (July 2, 2008). There is no express condition in the text of SORNA that the applicability of the registration requirement should depend upon state implementation of SORNA’s terms. Nor is there any link between a state’s obligation to comply with the statute — enforced via the threat of withheld funding — and an individual sex offender’s independent duty to register. See Hester, 589 F.3d 86, 92-93; Gould, 568 F.3d at 463-65. Moreover, even if SORNA is unclear by its own terms, the Attorney General has specified that an offender’s obligation to register is not contingent on any jurisdiction’s implementation of SORNA. 73 Fed.Reg. at 38,046, 38,063-64. Appellees do not and cannot contend that New York, Massachusetts, or Virginia did not have a functional sex offender registry during the relevant time periods. Appellees further argue that, if SORNA applies to them in spite of the relevant states’ non-implementation of its terms, then to apply it would violate the Ex Post Facto and Due Process Clauses. However, both Hall and Guzman were convicted of traveling interstate and failing to register, and in both of their cases the travel and failure to register occurred after SORNA’s enactment and the effective date of the regulations indicating that SORNA applies to all sex offenders. See 28 C.F.R. § 72.3. There" }, { "docid": "14906414", "title": "", "text": "explained by the Eighth Circuit in United States v. May, 535 F.3d 912, 916-19 (8th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009), adopted by the Tenth Circuit in United States v. Hinckley, 550 F.3d 926, 930 (10th Cir.2008). Other circuits have reached the same result. See United States v. Guzman, 591 F.3d 83, 93 (2nd Cir.2010) (“SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA.”); United States v. Brown, 586 F.3d 1342, 1347-49 (11th Cir.2009); United States v. Gould, 568 F.3d 459, 463-66 (4th Cir.2009). Without regard to whether SORNA is implemented by Washington or any other state, registration under it is required. We hold that George violated SORNA by failing to register as a sex offender. George argues that an interpretation determining 18 U.S.C. § 2250 to be applicable pre-implementation by an applicable state renders the statute impermissibly vague. In support of this argument, he contends that such an interpretation leaves it unclear what it means to register as a sex offender “as required by SORNA” when a state’s registration system is not “SORNA-compliant.” This argument is without merit because George was required to register as a sex offender even before the enactment of SORNA. As stated in the plea agreement he entered in this case, he had signed a notice of conditions of registration in connection with his 2003 sexual abuse conviction in the United States District Court for the District of Idaho “which included a requirement to provide notice of any change of address, and if [he] should move to another state, to register in the state and notify Idaho of the move.” Moreover, § 2250 plainly requires a sex offender to register and update any registration according to SORNA’s requirements. 18 U.S.C. § 2250(a). Under 42 U.S.C. § 16913, which sets out “Registry requirements for sex offenders,” a sex offender must register, registration must be kept current, and for initial registrations, a sex offender must register in the jurisdiction of conviction if different from the" }, { "docid": "14906413", "title": "", "text": "provision. That the states have until July 2009 to implement the administrative portions of SORNA, does not preclude federal prosecution for George’s failure to register under SORNA. 72 Fed. Reg. at 8895 (“In contrast to SORNA’s provision of a three-year grace period for jurisdictions to implement its requirements, SORNA’s direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness.”). SORNA requires states to implement sex offender registries which comply with SORNA requirements by July 2009 or lose part of their federal funding. 42 U.S.C. §§ 16924(a); 16925(a); 72 Fed. Reg. 30210, 30211. With regard to the requirements that individuals register, SORNA establishes a criminal offense for the failure to register or to update a registration. 18 U.S.C. § 2250; 72 Fed. Reg. 8894, 8895. There is no clear direction from Congress instructing that an individual’s obligation to register is dependent on a state’s implementation of SORNA. See Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). Indeed, it is not so dependent, as explained by the Eighth Circuit in United States v. May, 535 F.3d 912, 916-19 (8th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009), adopted by the Tenth Circuit in United States v. Hinckley, 550 F.3d 926, 930 (10th Cir.2008). Other circuits have reached the same result. See United States v. Guzman, 591 F.3d 83, 93 (2nd Cir.2010) (“SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA.”); United States v. Brown, 586 F.3d 1342, 1347-49 (11th Cir.2009); United States v. Gould, 568 F.3d 459, 463-66 (4th Cir.2009). Without regard to whether SORNA is implemented by Washington or any other state, registration under it is required. We hold that George violated SORNA by failing to register as a sex offender. George argues that an interpretation determining 18 U.S.C. § 2250 to be applicable pre-implementation by an applicable state renders the statute impermissibly vague. In support of this argument, he contends that such an interpretation leaves it unclear" }, { "docid": "22956100", "title": "", "text": "this amendment. The district court, however, should consider on remand whether Cabrera should receive a third level of reduction for acceptance of responsibility in light of this amendment. . See United States v. Gould, 568 F.3d 459, 471 (4th Cir.2009) (holding \"that § 2250(a) does not violate the Commerce Clause”); United States v. Whaley, 577 F.3d 254, 258 (5th Cir.2009) (\"Through § 2250, Congress has forbidden sex offenders from using the channels of interstate commerce to evade their registration requirements, and we have no doubt that it was within its power under the Commerce Clause to do so.”); United States v. Hinckley, 550 F.3d 926, 940 (10th Cir.2008) (\"By requiring that a sex offender travel in interstate commerce before finding a registration violation, SORNA remains well within the constitutional boundaries of the Commerce Clause.”), abrogated on other grounds by Reynolds v. United States,-U.S.-, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (2012); United States v. Ambert, 561 F.3d 1202, 1210 (11th Cir.2009) (\"Section 2250 is a proper regulation falling under either of the first two Lopez categories because it regulates both the use of channels of interstate commerce and the instrumentalities of interstate commerce.”). . See United States v. Guzman, 591 F.3d 83, 90 (2d Cir.2010) (\"We have no difficulty concluding that § 2250(a) is a proper congressional exercise of the commerce power under Lopez\"). . See United States v. Fernandes, 636 F.3d 1254, 1256 n. 2 (9th Cir.2011) (per curiam) (noting the argument that SORNA \"is an invalid exercise of Congress' power under the Commerce Clause was rejected by this court” in George); United States v. Valverde, 628 F.3d 1159, 1161 (9th Cir.2010) (noting that George's holding of constitutionality was binding). . See Guzman, 591 F.3d at 90 (\"Sections 2250 and 16913 were enacted as part of the Adam Walsh Child Protection and Safety Act of 2006, and are clearly complementary....” (internal quotation mark omitted)); Whaley, 577 F.3d at 259 (same); United States v. Howell, 552 F.3d 709, 716 (8th Cir.2009) (”[T]he statutory scheme Congress created to enforce § 16913 demonstrates Congress was focused on the interstate movement of sex" }, { "docid": "8681904", "title": "", "text": "SORNA? The answer to that question— based on case law from all other circuits to look at this issue — is yes. The duty to register in a state registry is independent of a state’s degree of implementation of SORNA. United States v. Guzman, 591 F.3d 83, 93 (2d Cir.2010) (“SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA.”); United States v. George, 625 F.3d 1124, 1128 (9th Cir.2010) (“Without regard to whether SORNA is implemented by Washington or any other state, registration under it is required.”); United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir.2010), abrogated on other grounds by Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); United States v. Brown, 586 F.3d 1342, 1349 (11th Cir.2009) (“SORNA was not enacted in a vacuum. To the contrary, every state and the District of Columbia had a sex offender registration law prior to 2006. An individual may therefore comply with SORNA’s registration requirements by registering through the state’s sex offender registry, even if that jurisdiction has not implemented SORNA’s administrative procedures.”) (citations omitted); United States v. Gould, 568 F.3d 459, 465-66 (4th Cir.2009) (‘We conclude that the requirement imposed on individuals to register is independent of the requirement imposed on the States to implement the enhanced registration and notification standards of SORNA. Accordingly, SORNA’s requirement that a sex offender register applies whether registration would be accomplished through preSORNA registration facilities or under SORNA-compliant programs.”); United States v. Hinckley, 550 F.3d 926, 939 (10th Cir.2008), abrogated on other grounds by Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 985 (2012) (finding that defendant had “knowledge of his duty to register under similar state and federal provisions”). Felts cites no contrary precedents. Felts argues that “SORNA ... appears to require that persons register under its provisions only when States actually implement SORNA’s regulatory scheme.” Appellant Br. at 15. From the context, it appears that by “actually implement,” Felts means that a state “fully implements” SORNA." }, { "docid": "23388137", "title": "", "text": "state registration systems. See 73 Fed.Reg. 38045 (2008). The Act seeks to make those systems more uniform and effective. It does so by repealing several earlier federal laws that also (but less effectively) sought uniformity; by setting forth comprehensive registration-system standards; by making federal funding contingent on States’ bringing their systems into compliance with those standards; by requiring both state and federal sex offenders to register with relevant jurisdictions (and to keep registration information current); and by creating federal criminal sanctions applicable to those who violate the Act's registration requirements. Id. at 978. . See United States v. Guzman, 591 F.3d 83, 91 (2d Cir.2010) (“[Wjith SORNA, Congress's goal was not simply to require sex offenders to register or to penalize the failure to do so, but rather to establish[ ] a comprehensive national system for the registration of those offenders.”) (internal quotation marks and citation omitted); United States v. Shenandoah, 595 F.3d 151, 154 (3d Cir.2010) (\"SORNA creates a national sex offender registry with the goal of eliminating inconsistencies among state laws.”), abrogated on other grounds by Reynolds, 132 S.Ct. 975; United States v. Gould, 568 F.3d 459, 464 (4th Cir.2009) (\"SORNA’s purpose [is] to strengthen and increase the effectiveness of preexisting sex offender registration and notification”); United States v. Young, 585 F.3d 199, 204 (5th Cir.2009) (\"[W]e now hold — in line with all of our sister Circuits to have considered the issue— that SORNA is a civil regulation and, thus, does not run afoul of the Constitution's ex post facto prohibitions.”); United States v. Utesch, 596 F.3d 302, 306 (6th Cir.2010) (\"Congress enacted SORNA to create a national system for the registration of sex offenders.”); United States v. May, 535 F.3d 912, 920 (8th Cir.2008) (“SORNA's registration requirement demonstrates no congressional intent to punish sex offenders. Congress described SORNA as a public safety measure.”), abrogated on other grounds by Reynolds, 132 S.Ct. 975; United States v. Lawrance, 548 F.3d 1329, 1333 (10th Cir.2008) (\"SORNA is both civil in its stated intent and nonpunitive in its purpose”); United States v. Brown, 586 F.3d 1342, 1347 (11th Cir.2009) (\"SORNA" }, { "docid": "13269937", "title": "", "text": "v. Chesney, 86 F.3d 564, 570 (6th Cir.1996) (finding that the presence of a jurisdictional element defeated defendant’s challenge to a felon-in-possession statute). SORNA fits comfortably within this rubric. It contains an express jurisdictional element, conditioning conviction under SORNA on the government proving that the defendant has used the channels of interstate commerce by traveling to another state or country. See 18 U.S.C. § 2250(a)(2). Although not directed at economic activity, SORNA targets “the spread of [an] evil or harm” via the channels and instrumentalities of interstate commerce; namely, “the evasion of sex offender registration requirements by sex offenders who have crossed jurisdictional lines.” Lawrance, 548 F.3d at 1337. Thus, we join several of our sister circuits in finding that SORNA’s jurisdictional element, coupled with its purpose, creates the requisite nexus to the use of the channels of interstate commerce. See, e.g., George, 625 F.3d at 1130 (Ninth Circuit); DiTomasso, 621 F.3d at 26 (First Circuit); United States v. Hinckley, 550 F.3d 926, 940 (10th Cir.2008), abrogated on other grounds by Reynolds v. United States, 565 U.S. at —, 132 S.Ct. at 980; May, 535 F.3d at 922 (Eighth Circuit). That the culminating act — the failure to register— does not occur until the defendant exits the stream of interstate commerce is irrelevant to the constitutionality of the statute. Cf. Page, 167 F.3d at 334 (upon inclusion of a jurisdictional element, “[a]ny arguably intrastate nature or timing of the crime ... is irrelevant”). Accordingly, SORNA bears a rational relationship to Congress’s power to regulate the channels of interstate commerce. 2. The Second Lopez Prong SORNA also constitutes a valid regulation of the instrumentalities of interstate commerce. As Lopez explains, the “instrumentalities of interstate commerce” include “persons or things in interstate commerce.” 514 U.S. at 558, 115 S.Ct. 1624. When Coleman traveled across state lines, he became a “person ... in interstate commerce.” Cf. Vasquez, 611 F.3d at 330; Shenandoah, 595 F.3d at 161; Guzman, 591 F.3d at 90; Gould, 568 F.3d at 472; Ambert, 561 F.3d at 1211; Hinckley, 550 F.3d at 940; May, 535 F.3d at 921. As with" }, { "docid": "23388138", "title": "", "text": "other grounds by Reynolds, 132 S.Ct. 975; United States v. Gould, 568 F.3d 459, 464 (4th Cir.2009) (\"SORNA’s purpose [is] to strengthen and increase the effectiveness of preexisting sex offender registration and notification”); United States v. Young, 585 F.3d 199, 204 (5th Cir.2009) (\"[W]e now hold — in line with all of our sister Circuits to have considered the issue— that SORNA is a civil regulation and, thus, does not run afoul of the Constitution's ex post facto prohibitions.”); United States v. Utesch, 596 F.3d 302, 306 (6th Cir.2010) (\"Congress enacted SORNA to create a national system for the registration of sex offenders.”); United States v. May, 535 F.3d 912, 920 (8th Cir.2008) (“SORNA's registration requirement demonstrates no congressional intent to punish sex offenders. Congress described SORNA as a public safety measure.”), abrogated on other grounds by Reynolds, 132 S.Ct. 975; United States v. Lawrance, 548 F.3d 1329, 1333 (10th Cir.2008) (\"SORNA is both civil in its stated intent and nonpunitive in its purpose”); United States v. Brown, 586 F.3d 1342, 1347 (11th Cir.2009) (\"SORNA created a comprehensive national system for registering sex offenders in order to track their interstate movement.”). . In support of its claim of consensus on the part of the circuit courts, the Sixth Circuit noted: Relying on Smith, circuit courts have consistently held that SORNA does not violate the Ex Post Facto Clause. See, e.g., United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir.2010); Guzman, 591 F.3d at 94 (2d Cir.2010); Shenandoah, 595 F.3d at 158- 59; George, 625 F.3d at 1131; Gould, 568 F.3d at 466; United States v. Young, 585 F.3d 199, 203-06 (5th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir.2009); United States v. May, 535 F.3d 912, 919-20 (8th Cir.2008), abrogated on other grounds by Reynolds v. United States, - U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); [United States v.] Hinckley, 550 F.3d [926] at 936 (10th Cir.2008). Felts, 674 F.3d at 606. . We cited 72 Fed.Reg. at 8,895, which states: \"In contrast to SORNA’s provision of a three-year grace period for jurisdictions to" }, { "docid": "23388120", "title": "", "text": "Juvenile Male I, 590 F.3d at 930, we noted that “S.E. has properly not disputed that in enacting SORNA, Congress intended to establish a civil regulatory scheme rather than a criminal one.” Indeed, it appears that all of the circuit courts that have considered this issue agree that SORNA was enacted to create a national system for the registration of sex offenders. Accordingly, the application of SORNA to Elkins will only violate the Ex Post Facto Clause if it is “so punitive either in purpose or effect as to negate” Congress’s intent. See Smith, 538 U.S. at 92, 123 S.Ct. 1140. Elkins correctly asserts that SORNA is backward looking insofar as it looks to a prior-in-time conviction as a basis for requiring registration. However, the courts of appeals have consistently rejected Elkins’s contention that this renders SORNA punitive. In United States v. George, 625 F.3d 1124, 1131 (9th Cir.2010), we held that SORNA could be applied based on a prior conviction because failure to register is a continuing offense. We subsequently vacated our opinion in George on other grounds. United States v. George, 672 F.3d 1126 (9th Cir.2012). However, in United States v. Clements, 655 F.3d 1028, 1029 (9th Cir.2011), we reiterated that “[f]ailure to register pursuant to SORNA, or to keep one’s registration current, is a continuing offense.” In United States v. Felts, 674 F.3d 599, 605-06 (6th Cir.2012), the Sixth Circuit addressed the same argument that Elkins makes here: Felts also argues that retroactive application of SORNA violates the Constitution’s Ex Post Facto Clause, as it increases the punishments for Felts’s earlier crimes. This argument has been consistently rejected. In Smith v. Doe, the Supreme Court upheld Alaska’s sex-offender-registration statute, finding that it was not punitive, but civil in nature, and not in violation of the Ex Post Facto Clause. 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).... Felts attempts — to little avail — to distinguish SORNA from the Alaska statute in question, but fails to address the unanimous consensus among the circuits that SORNA does not violate the Ex Post Facto Clause. SORNA provides" }, { "docid": "8681903", "title": "", "text": "27, 2009. See 42 U.S.C. § 16924(a)(1)-(2) (“Each jurisdic tion shall implement this title before the later of 3 years after the date of the enactment of this Act [enacted July 27, 2006]”). Currently, 15 states have “substantially implemented SORNA’s requirements”: Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota, Wyoming, and most saliently, Tennessee. U.S. Dep’t of Justice, SMART Office “Newsroom,” http://www.ojp.usdoj.gov/smart/newsroom. htm (last visited Mar. 8, 2012). As of the date of Felts’s federal conviction for failure to register, however, Tennessee had not yet substantially implemented SORNA. Appellant Br. at 13 (“Though Tennessee’s own sex registration form includes notification of the federal duty to register and alerts registrants to possible federal criminal penalties of ‘up to 10 years imprisonment,’ Tennessee has not yet taken the additional steps required to achieve substantial implementation.”). B This appeal presents a case of first impression for this circuit — if Tennessee failed to implement SORNA, does Felts’s failure to register in Tennessee’s registry constitute a failure to register as required by SORNA? The answer to that question— based on case law from all other circuits to look at this issue — is yes. The duty to register in a state registry is independent of a state’s degree of implementation of SORNA. United States v. Guzman, 591 F.3d 83, 93 (2d Cir.2010) (“SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA.”); United States v. George, 625 F.3d 1124, 1128 (9th Cir.2010) (“Without regard to whether SORNA is implemented by Washington or any other state, registration under it is required.”); United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir.2010), abrogated on other grounds by Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); United States v. Brown, 586 F.3d 1342, 1349 (11th Cir.2009) (“SORNA was not enacted in a vacuum. To the contrary, every state and the District of Columbia had a sex offender registration law prior to 2006. An individual may therefore comply with SORNA’s registration" }, { "docid": "23143624", "title": "", "text": "in Mistretta the Supreme Court upheld the delegation of authority to the Sentencing Commission to create the federal sentencing guidelines. Mistretta, 488 U.S. at 374-79, 109 S.Ct. 647. We agree with our sister Circuits that section 16913(d) of SORNA is a valid delegation of authority because Congress provided the Attorney General with an intelligible principle to follow. Affirmed. . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. . In the years following SORNA's passage, the Courts of Appeals reached different conclusions about SORNA's retroactive application. Five Circuits concluded that the express language of SORNA gave it automatic retroactive effect to “pre-Act” offenders. United States v. Fuller, 627 F.3d 499, 506 (2d Cir. 2010); United States v. DiTomasso, 621 F.3d 17, 24-25 (1st Cir.2010); United States v. Shenandoah, 595 F.3d 151, 163 (3d Cir.2010); United States v. Hinckley, 550 F.3d 926, 932 (10th Cir.2008); United States v. May, 535 F.3d 912, 918-919 (8th Cir.2008). Six Circuits concluded that SORNA delegated authority to the Attorney General to decide the retroactivity question. United States v. Johnson, 632 F.3d 912, 922-927 (5th Cir.2011); United States v. Valverde, 628 F.3d 1159, 1162-1167 (9th Cir.2010); United States v. Cain, 583 F.3d 408, 414-419 (6th Cir.2009); United States v. Hatcher, 560 F.3d 222, 226-229 (4th Cir.2009); United States v. Dixon, 551 F.3d 578, 585 (7th Cir.2008); United States v. Madera, 528 F.3d 852, 856-859 (11th Cir.2008) (per curiam). The Supreme Court settled this issue in 2012, holding that SORNA was not retroactive on its face, but could have retroactive effect if the Attorney General so determined. Reynolds v. United States, - U.S. -, 132 S.Ct. 975, 980, 181 L.Ed.2d 935 (2012). . United States v. Felts, 674 F.3d 599, 606 (6th Cir.2012); United States v. Burns, 418 Fed.Appx. 209, 211-12 (4th Cir.2011); United States v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010); United States v. Whaley, 577 F.3d 254, 263-64 (5th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1213-14 (11th Cir.2009); United States v. Dixon, 551 F.3d 578, 583-84 (7th Cir.2008)." }, { "docid": "22956079", "title": "", "text": "“channels of interstate commerce.” We held in George, 625 F.3d at 1130, vacated on other grounds, 672 F.3d 1126, that “Congress had the power under its broad commerce clause authority to enact the SORNA,” and we now reaffirm that holding, which has been embraced by our fellow circuits. In George, we explained: SORNA was enacted to keep track of sex offenders. See Carr v. United States, 560 U.S. 438, 455 [130 S.Ct. 2229, 176 L.Ed.2d 1152] (2010) (“[SORNA was] enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks.”). Such offenders are required to “register, and keep registration current, in each jurisdiction” where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a). As stated by the Eighth Circuit, “[t]his language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions.” United States v. Howell, 552 F.3d 709, 716 (8th Cir.2009). “Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense or who move in interstate commerce.” Id. (citing 18 U.S.C. § 2250(a)(2)). The requirements of § 16913 are reasonably aimed at “regulating persons or things in interstate commerce and the use of the channels of interstate commerce.” Id. at 717 (quoting [United States v.] May, 535 F.3d [912,] 921 [ (8th Cir.2008) ]) (quotation marks omitted). 625 F.3d at 1129-30 (emendations, except in the last sentence, in the original). George noted that, in addition to the Eighth Circuit, the Fourth, Fifth, Tenth, and Eleventh Circuits had upheld SOR-NA’s constitutionality under the Commerce Clause. Id. at 1130. The Second Circuit has also affirmed the constitutionality of SORNA under the Commerce Clause. In at least two extant opinions, we have approvingly referenced George. Moreover, the Supreme Court’s opinions in Reynolds v. United States, — U.S.-, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012), and Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010), affirming but limiting SORNA, implicitly affirm SORNA’s constitutionality. We recognize, as Cabrera observes, that only" }, { "docid": "8681905", "title": "", "text": "requirements by registering through the state’s sex offender registry, even if that jurisdiction has not implemented SORNA’s administrative procedures.”) (citations omitted); United States v. Gould, 568 F.3d 459, 465-66 (4th Cir.2009) (‘We conclude that the requirement imposed on individuals to register is independent of the requirement imposed on the States to implement the enhanced registration and notification standards of SORNA. Accordingly, SORNA’s requirement that a sex offender register applies whether registration would be accomplished through preSORNA registration facilities or under SORNA-compliant programs.”); United States v. Hinckley, 550 F.3d 926, 939 (10th Cir.2008), abrogated on other grounds by Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 985 (2012) (finding that defendant had “knowledge of his duty to register under similar state and federal provisions”). Felts cites no contrary precedents. Felts argues that “SORNA ... appears to require that persons register under its provisions only when States actually implement SORNA’s regulatory scheme.” Appellant Br. at 15. From the context, it appears that by “actually implement,” Felts means that a state “fully implements” SORNA. This cannot be correct, as at the time of SORNA’s enactment in 2006, no state’s registry was in compliance with SORNA. For Felts’s argument to be true, Congress — which provided the states with three years to comply without penalty — would have effectively rendered SORNA nugatory in any non-compliant state until 2009. Or, if a state chooses not to comply with SORNA — its sovereign prerogative, so long as it is willing to forego federal funding — a resident-sex offender would never have to register under federal law. See Shenandoah, 595 F.3d at 157 (“New York and Pennsylvania may never implement SORNA, choosing, for whatever reason, to forego a portion of their federal funding. This failure to implement a federal law, however, does not give sex offenders a reason to disregard their federal obligation to update their state registrations.”). At the time of the enactment of SORNA, “every state and the District of Columbia had a sex offender registration law” and “an individual may therefore comply with SORNA’s registration requirements by registering through the" }, { "docid": "23388140", "title": "", "text": "implement its requirements, SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness.” George, 625 F.3d at 1128. . The Sixth Circuit commented: The duty to register in a state registry is independent of a state’s degree of implementation of SORNA. United States v. Guzman, 591 F.3d 83, 93 (2d Cir.2010) (\"SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA.”) ...; United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir.2010), abrogated on other grounds by Reynolds v. United States, - U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); United States v. Brown, 586 F.3d 1342, 1349 (11th Cir.2009) (\"SORNA was not enacted in a vacuum. To the contrary, every state and the District of Columbia had a sex offender registration law prior to 2006. An individual may therefore comply with SORNA’s registration requirements by registering through the state’s sex offender registry, even if that jurisdiction has not implemented SORNA’s administrative procedures.”) (citations omitted); United States v. Gould, 568 F.3d 459, 465-66 (4th Cir.2009) (\"We conclude that the requirement imposed on individuals to register is independent of the requirement imposed on the States to implement the enhanced registration and notification standards of SORNA. Accordingly, SORNA’s requirement that a sex offender register applies whether registration would be accomplished through preSORNA registration facilities or under SORNA-compliant programs.”); United States v. Hinckley, 550 F.3d 926, 939 (10th Cir.2008), abrogated on other grounds by Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012) (finding that defendant had \"knowledge of his duty to register under similar state and federal provisions”). Felts, 674 F.3d at 603-04. . SORNA’s definition of sex offender includes the following provision: The term \"convicted\" or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than" }, { "docid": "23388139", "title": "", "text": "created a comprehensive national system for registering sex offenders in order to track their interstate movement.”). . In support of its claim of consensus on the part of the circuit courts, the Sixth Circuit noted: Relying on Smith, circuit courts have consistently held that SORNA does not violate the Ex Post Facto Clause. See, e.g., United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir.2010); Guzman, 591 F.3d at 94 (2d Cir.2010); Shenandoah, 595 F.3d at 158- 59; George, 625 F.3d at 1131; Gould, 568 F.3d at 466; United States v. Young, 585 F.3d 199, 203-06 (5th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir.2009); United States v. May, 535 F.3d 912, 919-20 (8th Cir.2008), abrogated on other grounds by Reynolds v. United States, - U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); [United States v.] Hinckley, 550 F.3d [926] at 936 (10th Cir.2008). Felts, 674 F.3d at 606. . We cited 72 Fed.Reg. at 8,895, which states: \"In contrast to SORNA’s provision of a three-year grace period for jurisdictions to implement its requirements, SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness.” George, 625 F.3d at 1128. . The Sixth Circuit commented: The duty to register in a state registry is independent of a state’s degree of implementation of SORNA. United States v. Guzman, 591 F.3d 83, 93 (2d Cir.2010) (\"SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA.”) ...; United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir.2010), abrogated on other grounds by Reynolds v. United States, - U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); United States v. Brown, 586 F.3d 1342, 1349 (11th Cir.2009) (\"SORNA was not enacted in a vacuum. To the contrary, every state and the District of Columbia had a sex offender registration law prior to 2006. An individual may therefore comply with SORNA’s registration requirements by registering through the state’s sex offender registry, even if that jurisdiction has not implemented SORNA’s administrative procedures.”)" }, { "docid": "23388121", "title": "", "text": "George on other grounds. United States v. George, 672 F.3d 1126 (9th Cir.2012). However, in United States v. Clements, 655 F.3d 1028, 1029 (9th Cir.2011), we reiterated that “[f]ailure to register pursuant to SORNA, or to keep one’s registration current, is a continuing offense.” In United States v. Felts, 674 F.3d 599, 605-06 (6th Cir.2012), the Sixth Circuit addressed the same argument that Elkins makes here: Felts also argues that retroactive application of SORNA violates the Constitution’s Ex Post Facto Clause, as it increases the punishments for Felts’s earlier crimes. This argument has been consistently rejected. In Smith v. Doe, the Supreme Court upheld Alaska’s sex-offender-registration statute, finding that it was not punitive, but civil in nature, and not in violation of the Ex Post Facto Clause. 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).... Felts attempts — to little avail — to distinguish SORNA from the Alaska statute in question, but fails to address the unanimous consensus among the circuits that SORNA does not violate the Ex Post Facto Clause. SORNA provides for a conviction for failing to register; it does not increase the punishment for the past conviction. 674 F.3d at 605-06. We agree and join our sister circuits in holding that requiring a person to register under SORNA based on a conviction entered prior to SORNA’s enactment does not violate the Ex Post Facto Clause. 2. Federal prosecution under SORNA is not conditioned on a state’s implementation of the administrative provisions of SORNA. A related argument raised in George, and arguably inherent in Elkins’s challenge to SORNA, is that SORNA cannot be applied to an individual if the state in which he resides has not implemented SORNA. We noted, however, that the defendant in George “misconstrues the scope and effect of SORNA’s implementation provision,” and that the fact that states had until July 2009 to implement the administrative portions of SORNA “does not preclude federal prosecution for George’s failure to register under SORNA.” George, 625 F.3d at 1128. We held that “[w]ithout regard to whether SORNA is implemented by Washington or any other state, registration" }, { "docid": "13269933", "title": "", "text": "bear no rational relationship to any of these powers. United States v. Faasse, 265 F.3d 475, 481 (6th Cir.2001) (en banc) (citing Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)). Coleman argues that SORNA fits into none of the Lopez categories. He contends that SORNA exceeds the first prong because, due to the fact that registration is not required until after the offender exits the stream of interstate commerce to settle in a given location, SORNA lacks a nexus to interstate commerce. He maintains that SORNA exceeds the second prong because its focus on offender registration, as opposed to offender travel, decouples it from any “instrumentality of interstate commerce” that Congress constitutionally may regulate. Finally, he alleges that SORNA exceeds the third prong because it regulates activity with no cognizable relation to interstate commerce, as neither travel nor registry “substantially affect” commerce. None of these arguments is availing. We find that SORNA fits comfortably within the first two Lopez prongs. Accord United States v. George, 625 F.3d 1124, 1129-30 (9th Cir.2010), vacated on other grounds, 672 F.3d 1126 (9th Cir.2012); United States v. DiTomasso, 621 F.3d 17, 26 (1st Cir.2010), vacated on other grounds in light of Reynolds by No. 10-8532, — U.S. —, 132 S.Ct. 1533, 182 L.Ed.2d 151, 2012 WL 538283 (Feb. 21, 2012); United States v. Vasquez, 611 F.3d 325, 330-31 (7th Cir.2010); United States v. Shenandoah, 595 F.3d 151, 160 (3d Cir.2010), abrogated on other grounds by Reynolds, 565 U.S. at —, 132 S.Ct. at 980; United States v. Guzman, 591 F.3d 83, 89-92 (2d Cir.2010); United States v. Whaley, 577 F.3d 254, 259-61 (5th Cir.2009); United States v. Gould, 568 F.3d 459, 470-75 (4th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1210-12 (11th Cir.2009); United States v. Lawrance, 548 F.3d 1329, 1337 (10th Cir.2008); United States v. May, 535 F.3d 912, 921-22 (8th Cir.2008), abrogated on other grounds by Reynolds, 565 U.S. at —, 132 S.Ct. at 980. We therefore decline to address the third Lopez prong. 1. The First Lopez Prong SORNA" }, { "docid": "4311314", "title": "", "text": "a knowing act, see Bryan, 524 U.S. at 192-93, 118 S.Ct. 1939, and was therefore sufficient to sustain the indictment for violating SORNA, see 18 U.S.C. § 2250(a); cf. Gould, 568 F.3d at 468. C. Fuller’s Remaining Arguments Fuller advances several additional arguments that require only brief consideration. First, he argues that his conviction violates the Ex Post Facto Clause. Since we hold that SORNA applied to Fuller upon its enactment, this argument is foreclosed. See Guzman, 591 F.3d at 94 (holding that, where a SORNA defendant’s “travel and failure to register occurred after SORNA’s enactment and the effective date of the [Act],” there is “no ex post facto problem” (emphasis added)). Additionally, Fuller argues that his conviction was improper because (1) SORNA exceeds Congress’s Commerce Clause authority; (2) SORNA violates the non-delegation doctrine; (3) SORNA cannot be applied to him because neither Missouri nor New York had implemented SORNA at the time of his conviction, as directed by the Act; and (4) he was never specifically notified of SORNA’s requirements and applicability to him. These challenges to SORNA have been considered by this Court and rejected, see id. at 90-93; United States v. Hester, 589 F.3d 86, 92-93 (2d Cir.2009), and thus are foreclosed on this appeal. CONCLUSION For the foregoing reasons, we conclude that Fuller’s conviction under 18 U.S.C. § 2250(a) was proper. The judgment of the district court is hereby AFFIRMED. . Our sister Circuits have reached diverging results on the question before us. Broadly speaking, certain Circuits have held that SORNA did not apply to pre-SORNA sex offenders until the Attorney General so declared in the Interim Ruling, see, e.g., United States v. Cain, 583 F.3d 408, 414-19 (6th Cir.2009); United States v. Hatcher, 560 F.3d 222, 226-29 (4th Cir.2009); United States v. Madera, 528 F.3d 852, 857-59 (11th Cir.2008), while other Circuits have held that SORNA's registration requirements applied to pre-SORNA sex offenders upon the date of enactment, see, e.g., United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir.2010); United States v. Hinckley, 550 F.3d 926, 929-35 (10th Cir.2008); United States v. May, 535" } ]

[ { "docid": "3224198", "title": "", "text": "methodology for measuring the reasonableness of the Guidelines sentence against § 3553(a). See United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005). And the need for a judge to explain in detail his consideration of the § 3553(a) factors when choosing to stick with the Guidelines sentence is proportional to the arguments made by the defendants. See Cunningham, 429 F.3d at 678. When the judge is not presented with much, he need not explain much. See id. In this case, the judge’s explanation was sufficient. We still must consider for ourselves whether the sentences are reasonable. “[A]ny sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.” United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). There is no challenge as to the proper calculations of the Guidelines sentences. Therefore, the defendants must rebut the presumption of reasonableness attached to the Guidelines sentences “ ‘by demonstrating that [their] ... sentenced][are] unreasonable when measured against the factors set forth in § 3553(a).’ ” United States v. Brock, 433 F.3d 931, 938 (7th Cir.2006) (quoting Mykytiuk, 415 F.3d at 608). None of the defendants have made this showing. Neither Schullo nor Spano provide any reasons why their sentences are unreasonable when measured against the § 3553(a) factors, and we see none. Inendino, without any specific reference to § 3553(a), argues that his sentence of 78 months’ imprisonment is unreasonable because he only received about $3,100 in profit from the illegal scheme, and because he allegedly thought the fraudulent contract which formed the basis of the criminal conduct was “legit.” These arguments, however, ignore the jury’s conclusion that he was part of a scheme to defraud the Town of Cicero, the loss amount of over $75,000, and his Criminal History Category IV. It is not unreasonable for the district court judge to determine that Inendino’s conduct in this case and criminal history were serious enough to warrant a sentence within the Guidelines range. Finally, Schullo argues that our Paladino procedure is unconstitutional, but he provides no reason why we should reconsider it in this case-so" } ]

[ { "docid": "6971310", "title": "", "text": "not impermissible double counting. The guidelines require the application of a six-level enhancement when the kidnapper demanded a ransom, see U.S.S.G. § 2A4.1(b)(l), and nothing in the text of this guideline or its application notes suggests that the enhancement does not apply to a defendant in Vizcarra’s situation. Accordingly, the district court properly applied the ransom enhancement. 2. Section 3553(a) Challenges Vizcarra next contends that the district court did not adequately address the mitigating facts he raised at sentencing and also that his sentence is unreasonable in light of those facts. The first of these arguments is procedural and the second is substantive. See United States v. Carter, 538 F.3d 784, 789 (7th Cir.2008) (“We review a sentence for procedural error and substantive reasonableness.”). The court is required to consider aggravating and mitigating factors under 18 U.S.C. § 3553(a) before imposing a sentence, and the judge’s failure to address a nonroutine argument in mitigation may, if the argument is substantial enough, amount to a procedural error. See United States v. Scott, 555 F.3d 605, 608 (7th Cir.2009). We have also said, however, that “[t]he court need not address every § 3553(a) factor in a checklist fashion, explicitly articulating its conclusions regarding each one.” United States v. Shannon, 518 F.3d 494, 496 (7th Cir.2008) (citing United States v. Brock, 433 F.3d 931, 934-36 (7th Cir.2006), and United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005)). Instead, “sentencing judges must only demonstrate meaningful consideration of § 3553(a) factors,” United States v. Paige, 611 F.3d 397, 398 (7th Cir.2010) (citing United States v. Laufle, 433 F.3d 981, 987 (7th Cir.2006)), and “we regularly affirm sentences where the district judge does not explicitly mention each mitigation argument raised by the defendant,” id. (citing as examples Brock, 433 F.3d at 936, and United States v. Newsom, 428 F.3d 685, 687-88 (7th Cir.2005)). We review the reasonableness of the sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Carter, 538 F.3d at 789. A sentence within a properly calculated guidelines range is presumed to" }, { "docid": "23048318", "title": "", "text": "that “stands out as unreasonable.” Id For the reasons detailed below, we reject each of Newsom’s arguments. We look first at his assertion that the court failed properly to take his individual circumstances into account, including particularly his depression, alcohol abuse, and work history, as required by 18 U.S.C. § 3553(a)(1). He reads this court’s decision in United States v. Dean, 414 F.3d 725 (7th Cir.2005), as holding that the court must address the defendant’s personal characteristics if they are “decisive” to the sentence imposed. That is not quite what Dean said, however. Its exact language, insofar as it applies to Newsom’s case, was as follows: [T]he sentencing judge can discuss the application of the • statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge’s reasons, consistent with section 3553(a), for thinking the sentence that he has selected, is indeed appropriate for the particular defendant. Id. at 729. The opinion went on to say that explicit fact findings were required “if, though only if, contested facts are material to the judge’s sentencing decision.” Id. at 730. In Newsom’s case, we see no indication that there was a contested issue of fact relating to the personal characteristics Newsom has highlighted. It is unfortunate that the court did not mention these points in its order, since Newsom had relied heavily on them on remand, but the court must have thought this unnecessary because the government did not take issue with any of them. It is their significance that was contested. In our view, the only reasonable way to read the court’s memorandum is as an indication of which facts the court did find material: Newsom’s flight, his relationship of trust with and authority over two of his victims, and the seriousness of the offense. The Guidelines, which take those factors into account, normally should point the way toward a reasonable sentence consistent with § 3553(a). See Mykytiuk, 415 F.3d at 607. Dean also held that the district court’s obligation to explain the sentence it chose becomes greater “the farther the" }, { "docid": "22340505", "title": "", "text": "sentencing judge is in a superior position” to make factual findings and credibility determinations, “[t]he fact that [we] might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. Gall sets forth the procedure the district court should follow when sentencing a criminal defendant. After correctly calculating the Guidelines range and “giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.” Id. at 596. The district court “must make an individualized assessment based on the facts presented, ... [and] must adequately explain the chosen sentence to allow for meaning ful appellate review.” Id. at 597. “In explaining the chosen sentence and analyzing the relevant § 3553(a) factors, ‘a district court is not required to provide a “full opinion in every case,” but must “set forth enough to satisfy the appellate court that he has considered the parties’ ” arguments and has a reasoned basis for exercising his own legal decisionmaking authority.’ ” United States v. Hill, 552 F.3d 686, 691 (8th Cir.2009) (quoting United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008) (in turn quoting Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007))). The district court correctly calculated Bridges’s Guidelines range and did not base the sentencing decision on clearly erroneous facts. At sentencing, the district court expressly considered each of the relevant § 3553(a) factors and explained how each factor weighed in favor of or against Bridges. Addressing Bridges’s “history and characteristics,” see 18 U.S.C. § 3553(a)(1), the district court specifically mentioned Bridges’s “additional physical problems, and substance abuse problems.” The fact the district court did not give this factor as much “weight” as Bridges would have preferred does not justify reversal; nor does the district court’s allegedly giving “too much weight” to Bridges exhibiting a gun to Baker at the gas station, with that incident’s potential for violence, justify reversal. The district court has wide" }, { "docid": "18063710", "title": "", "text": "from that described.” 18 U.S.C. § 3553(b)(1). Thus, pre-Booker, the § 3553(a) factors were relevant in deciding where within the guidelines range a sentence should fall, but a district court could prescribe a sentence that fell outside the range only if specific circumstances were present, as contemplated by the guidelines and policy statements and official commentary of the Sentencing Commission. In Brock’s sentencing hearing, Brock’s age, military service, and other personal characteristics were not “irrelevant,” but instead were relevant as to where Brock’s sentence should fall within the guidelines range. Brock does not argue that he should have been sentenced outside the guidelines range. The district court’s explanation of its sentencing decision indicates that the court did take into account Brock’s personal characteristics. The district court heard testimony about how Brock’s age, military service, and difficult childhood should influence the length of Brock’s sentence. See Dean, 414 F.3d at 730 (“the defendant must be given an opportunity to draw the judge’s attention to any factor listed in section 3553(a) that might warrant a sentence different from the guidelines sentence”). The district court explicitly discussed Brock’s age. The court indicated that although it is unfortunate that Brock will be in prison until he is in his 70s, Brock was given a chance already, when he was given early release and shortened parole on a previous conviction for cocaine dealing, and had returned to drug dealing only a few months later. The district court also emphasized the large number of guns and large amount of drugs found in Brock’s possession. These facts demonstrated that Brock’s drug business was a “danger to the community.” The district court did not explicitly discuss Brock’s argument regarding his military service and difficult childhood. However, the district court was not required to do so, under the facts of this case. “[T]he sentencing judge can discuss the application of the statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge’s reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for" }, { "docid": "7980862", "title": "", "text": "likely to have been overlooked by federal sentencing judges, and we presume that district judges know the law.” See United States v. Gray, 533 F.3d 942, 943 (8th Cir.2008) (citation and internal quotation marks omitted). In any event, the context makes clear that the district court used the words “only” and “real” to contrast the court’s broad discretion with respect to the bank robbery counts and its limited discretion with respect to the firearm counts, which carried mandatory minimum sentences prescribed by statute. The district court did not treat the guidelines as mandatory. Turning to the district court’s discussion of the § 3553(a) factors, we have held that a “mechanical recitation” of the factors is unnecessary, “particularly when a judge elects simply to apply the advisory guideline range to a particular case.” United States v. Zastrow, 534 F.3d 854, 855 (8th Cir.2008) (quoting United States v. Todd, 521 F.3d 891, 897 (8th Cir.2008)). Here, the need for a lengthy discussion was also lessened by the defendant’s failure to make an argument regarding the appropriate sentence. Williams not only failed to present “nonfrivolous reasons for imposing a different sentence,” he presented no reasons at all. See Rita v. United States, 551 U.S. 338, 357, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (noting that where a defendant “presents nonfrivolous reasons for imposing a different sentence, ... the judge will normally ... explain why he has rejected those arguments”). Yet the record shows that the district court did in fact address many of the § 3553(a) factors, including the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to afford adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant, the kinds of sentences available, and the need to avoid unwarranted sentence disparities among similarly situated defendants. See § 3553(a)(1), (2)(B), (2)(C), (3), (6). The court’s specific reference to these factors does not mean that it failed to consider the others. See United States v. Molina, 563 F.3d 676, 679 (8th Cir.2009). Thus, we conclude that Williams" }, { "docid": "23092735", "title": "", "text": "the judge chooses a sentence below or above the guidelines, he must proffer a sufficient justification for the divergence. Gall, 128 S.Ct. at 597. “[A] major departure should be supported by a more significant justification than a minor one.” Id. We now consider each of the defendant’s appeals in turn. A. Davis Omole In reviewing Davis’s sentence, we first consider whether the judge committed a procedural error. Gall, 128 S.Ct. at 597; United States v. Gordon, 513 F.3d 659, 666 (7th Cir.2008). We ask whether the judge properly calculated the guidelines range; analyzed the factors set forth in § 3553(a); based the sentence on accurate facts; and explained the sentence and the justifications for an above- or below-guidelines sentence. Gall, 128 S.Ct. at 597; Gordon, 513 F.3d at 666. In Davis Omole’s case, the judge noted the properly calculated guidelines range to be 63 to 78 months’ imprisonment for the wire-fraud conviction, and 24 months’ imprisonment for the aggravated identity theft conviction, to run consecutively. The judge listened to the parties’ arguments at the hearing and considered the § 3553(a) factors — some explicitly, and others implicitly. See Gall, — U.S.-, 128 S.Ct. 586, 599, 169 L.Ed.2d 445 (“Since the District Judge correctly calculated and carefully reviewed the guidelines range, he neces sarily gave significant weight and consideration to the need to avoid unwarranted disparities.”)- The judge noted Davis’s personal characteristics, including his young age (20 years) and his lack of serious involvement with the law. He expounded on Davis’s character flaws — his extreme arrogance, his lack of empathy, and his self-centeredness. He discussed the offense characteristics, noting the sophisticated, enduring nature of the fraudulent scheme that cheated many people out of their “hard-earned money.” The transcript reveals the reasons behind the judges’ below-guidelines sentence. We find no procedural error. Our next step is to review the substantive reasonableness of the sentence under the deferential abuse-of-discretion standard. Gall, 128 S.Ct. at 597; Gordon, 513 F.3d at 666. This totality-of-the-circumstances analysis requires that we defer to the sentencing judge, who considers each defendant as an individual and decides sentences on" }, { "docid": "6971311", "title": "", "text": "(7th Cir.2009). We have also said, however, that “[t]he court need not address every § 3553(a) factor in a checklist fashion, explicitly articulating its conclusions regarding each one.” United States v. Shannon, 518 F.3d 494, 496 (7th Cir.2008) (citing United States v. Brock, 433 F.3d 931, 934-36 (7th Cir.2006), and United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005)). Instead, “sentencing judges must only demonstrate meaningful consideration of § 3553(a) factors,” United States v. Paige, 611 F.3d 397, 398 (7th Cir.2010) (citing United States v. Laufle, 433 F.3d 981, 987 (7th Cir.2006)), and “we regularly affirm sentences where the district judge does not explicitly mention each mitigation argument raised by the defendant,” id. (citing as examples Brock, 433 F.3d at 936, and United States v. Newsom, 428 F.3d 685, 687-88 (7th Cir.2005)). We review the reasonableness of the sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Carter, 538 F.3d at 789. A sentence within a properly calculated guidelines range is presumed to be reasonable; it is the defendant’s burden to overcome the appellate presumption. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Jackson, 547 F.3d 786, 792 (7th Cir.2008). Vizcarra focuses on three facts about his background and participation in the crime that he claims the district court either ignored or overlooked: (1) he did not organize the kidnapping; (2) his participation in the kidnapping was aberrational given his insignificant criminal record; and (3) a lengthy prison term is unnecessary as a specific deterrent because he spent only a day in jail prior to the kidnapping. In the alternative, he argues that these mitigating factors make his 168-month sentence substantively unreasonable. The district court’s explanation of Vizcarra’s sentence was brief but adequate, enough to demonstrate that the court engaged in “meaningful consideration of § 3553(a) factors.” Paige, 611 F.3d at 398. The judge explained several times during the sentencing hearing that the guidelines are discretionary and that the § 3553(a) sentencing factors were guiding his discretion." }, { "docid": "21387965", "title": "", "text": "insufficient to warrant a sentence lower than the Guidelines range.” Id. at 2469. It further explained that the judge could have stated explicitly that he had heard and considered the evidence and argument, that the Sentencing Guidelines reflected a proper sentence, and that the defendant’s unique circumstances did not warrant a below-Guidelines sentence. Nevertheless, the Court said that the context of the judge’s statements made clear the reasoning that supported its conclusion and allowed the Court to review that reasoning on appeal. Id. Finally, the Court concluded that the defendant’s sentence was reasonable, noting that the defendant offered no evidence that he feared retaliation more than any other former law enforcement officer and did not argue that military veterans ordinarily should receive lower sentences. Id. at 2469. In short, the Court found that the defendant’s circumstances were not so remarkable to require a sentence outside the applicable Guidelines range. With Rita’s framework in mind, it is clear that Estremera’s Guidelines sentence was both reasonable and supported by sufficient reasons. Estremera’s circumstances are not so different from other defendants convicted of distributing large amounts of drugs that a sentence outside the Guidelines was necessary. The district court reasonably could have concluded that Estremera’s criminal record suggested an individual prone to recidivism and that his involvement in GED and Bible study classes was not significant enough to merit a lower sentence. Estremera’s other argument — that his sentence was too severe in light of Corral’s much lighter sentence — is one we repeatedly have rejected. See, e.g., United States v. Duncan, 479 F.3d 924, 929 (7th Cir.2007). The district court also supported the sentence with sufficient reasons. It recited each of the § 3553(a) factors and mentioned a few facts that weighed heavily in its decision, including the ramifications that drug selling has on our communities, Estremera’s lengthy criminal history, and the seriousness of his offense. This explanation was substantially greater than the one approved in Rita, where the sentencing judge did not articulate any of the § 3553(a) factors and did not mention any facts that were important to his decision." }, { "docid": "21387963", "title": "", "text": "sentencing factors outlined in 18 U.S.C. § 3553(a). He maintains that the sentence was greater than necessary to comply with the goals of § 3553(a), that the district court did not evaluate sufficiently the § 3553(a) factors, and that the sentence was unfair in light of Corral’s much lighter, fifteen-year sentence. The Supreme Court recently approved this circuit’s practice of presuming that a district court’s Guidelines sentence is reasonable. Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007). The Court said that an appellate court’s non-binding presumption of reasonableness appropriately expresses the fact that a sentence is usually reasonable where a sentencing judge and the Sentencing Commission have reached the same conclusion about a proper sentence. Id. The Court also observed that a Guidelines sentence “likely reflects the § 3553(a) factors (including its ‘not greater than necessary’ requirement).” Id. at 2463. Rita left open the possibility, however, that the particular facts of a case — maybe a defendant’s unusual history and characteristics or the remarkable nature of an offense— might require a sentence outside the Guidelines. The Court also discussed the sufficiency of a sentencing judge’s stated reasons for issuing a particular sentence. The defendant in Rita had asked for a sentence below the applicable Guidelines range because, as a former government criminal justice employee, he maintained that he was susceptible to violence at the hands of other inmates. He also argued that his poor physical health and former military service merited a more lenient sentence. The government responded that the defendant’s crime — perjury—had interfered with one of its investigations and that a former criminal justice employee should have known better. After both sides presented their arguments, the sentencing judge said that the defendant’s Guidelines range provided an appropriate sentence and that the public needed to be protected from the defendant’s crime. Though the judge did not specifically mention the defendant’s reasons for a lower sentence, the Supreme Court held that the statement was legally sufficient. It said that the district court heard the defendant’s reasons for leniency and “simply found these circumstances" }, { "docid": "22358728", "title": "", "text": "robbery where Docampo, who had just turned eighteen, was the only person to go to trial, was not the subject of the sting but rather only a peripheral player in the conspiracy, and yet was sentenced to a drastically longer sentence than every other co-conspirator. The sentencing record reveals little explication, aside from the court’s statement that it had “consider[ed] the advisory sentencing guidelines and all of the [§ 3553(a)] factors.” The judge’s only comments centered on Docampo’s voluntary participation in the crime, the potential violence that might have resulted had the firearms been used, and the general rise of gang violence — after which the judge opined, “[W]e’ve got to stop it. The community expects it to stop.” There was no evidence, however, tying Docampo to any conduct other than that for which he was convicted — joining the conspiracy at the last minute and transferring a gun from one person to the ringleader. More importantly, the judge made no mention at sentencing of the “nature and circumstances” of the actual crime that did occur or Docampo’s “history and characteristics”- — such as the absence of a criminal record or his biological or psychological age. Without more on the record, it is hard to say whether the judge presumed that the Guidelines range was reasonable or considered any of the § 3553(a) factors save one — the abstract principle of “general deterrence.” When a court has given little indication it has taken into account the pertinent facts specific to the case, it constitutes an abuse of discretion: [T]he district court must give some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that achieves the purposes of sentencing stated in § 3553(a). Where it does not, and instead commits a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case, we must remand for resentencing. Indeed, if we could not say so here, we would" }, { "docid": "23048320", "title": "", "text": "judge’s sentence departs from the guidelines sentence.” 414 F.3d at 729 (emphasis added). “When the judge exercises her discretion to impose a sentence within the Guideline range and states for the record that she is doing so, little explanation is required.” Id. at 730 (quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005)). Thus, to summarize, the district courts must resolve disputed material issues of fact that relate to particular § 3553(a) factors that a defendant brings to the court’s attention; they must explain the conclusions they draw with respect to “decisive” characteristics; and, to the extent that they are departing from the sentence recommended by the Guidelines, they must set forth the justification for doing so. In this case, the district judge selected a sentence at the center of the Guidelines range and explained in his order on remand why he thought this was appropriate. We add for the sake of completeness that we too see nothing in New-som’s personal history that shakes our confidence in this conclusion. Newsom’s other argument is that his sentence was unreasonable because it violated the command of § 3553(a)(6) to take into account “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” While we find this a closer call, we conclude that the district court’s weighing of the facts of Newsom’s case against those of other cases is entitled to deference. Prior to Booker, disparities resulting from the proper application of the Guidelines were not a permissible reason for a departure from a properly calculated sentencing range. See United States v. Meza, 127 F.3d 545, 549-50 (7th Cir.1996). Now that the district court is obliged directly to confront all of the § 3553(a) factors, however, comparison of sentences has become a permissible part of the overall sentencing determination. Both before the district court and before this court, Newsom has attempted to rely on our earlier expressed concern about marginal deterrence. In affirming the district court’s application of the Guidelines, we noted that the length of Newsom’s overall sentence, 324 months" }, { "docid": "23048319", "title": "", "text": "if, contested facts are material to the judge’s sentencing decision.” Id. at 730. In Newsom’s case, we see no indication that there was a contested issue of fact relating to the personal characteristics Newsom has highlighted. It is unfortunate that the court did not mention these points in its order, since Newsom had relied heavily on them on remand, but the court must have thought this unnecessary because the government did not take issue with any of them. It is their significance that was contested. In our view, the only reasonable way to read the court’s memorandum is as an indication of which facts the court did find material: Newsom’s flight, his relationship of trust with and authority over two of his victims, and the seriousness of the offense. The Guidelines, which take those factors into account, normally should point the way toward a reasonable sentence consistent with § 3553(a). See Mykytiuk, 415 F.3d at 607. Dean also held that the district court’s obligation to explain the sentence it chose becomes greater “the farther the judge’s sentence departs from the guidelines sentence.” 414 F.3d at 729 (emphasis added). “When the judge exercises her discretion to impose a sentence within the Guideline range and states for the record that she is doing so, little explanation is required.” Id. at 730 (quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005)). Thus, to summarize, the district courts must resolve disputed material issues of fact that relate to particular § 3553(a) factors that a defendant brings to the court’s attention; they must explain the conclusions they draw with respect to “decisive” characteristics; and, to the extent that they are departing from the sentence recommended by the Guidelines, they must set forth the justification for doing so. In this case, the district judge selected a sentence at the center of the Guidelines range and explained in his order on remand why he thought this was appropriate. We add for the sake of completeness that we too see nothing in New-som’s personal history that shakes our confidence in this conclusion. Newsom’s other argument is" }, { "docid": "22813349", "title": "", "text": "a lengthy explanation is not necessarily required when a judge decides to follow the Guidelines in a particular case. The Court stated: [circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3353(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under § 3553(a)' — that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way — or argues for departure, the judge normally need say no more. Id. at 2468 (emphasis added). The Court also concluded, however, that “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Id. (citation omitted). In holding that the sentencing judge’s explanation in Rita was adequate, the Court noted that the sentencing judge listened to the arguments, considered the supporting evidence, and was fully aware of the defendant’s special conditions and work history. Id. at 2469. Ultimately, the sentencing judge found the defendant’s circumstances insufficient to warrant a sentence below the Guideline range. Id. The Court added that the sentencing judge could have said more by noting, for example, that he thought the Commission in the Guidelines had determined a sentence that was proper in the minerun of roughly similar perjury cases; and that he found that Rita’s personal circumstances here were simply not different enough to warrant a different sentence. But context and the record make clear that this, or similar, reasoning, underlies the judge’s conclusion. Id. We disagree with Agbai’s assertion that the district court applied the advisory Guidelines as presumptively reasonable and that its explanation of Agbai’s sentence was inadequate. The record established that the district court considered § 3553(a) factors. It mentioned that: (1) there was nothing unique about Agbai’s case; (2) there was" }, { "docid": "18063709", "title": "", "text": "service, and the loss of his father at a young age, were treated as irrelevant under the then-mandatory Guidelines.... Indeed, other than a passing reference to Mr. Brock’s age, the district judge did not address any of these factors when imposing the original sentence. Now, such factors must be considered as aspects of the defendant’s history and characteristics. (Citing 18 U.S.C. § 3553(a)(1).) Brock’s characterization of the role of the 3553(a) factors pre-Booker is not entirely accurate. “Until Booker, the uses that a sentencing judge could make of the factors listed in section 3553(a) were severely circumscribed by the next subsection in order to preserve the mandatory character of the guidelines.” United States v. Dean, 414 F.3d 725, 728 (7th Cir.2005). Section 3553(b) provided that the sentencing court “shall impose” a sentence within the guidelines range, “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b)(1). Thus, pre-Booker, the § 3553(a) factors were relevant in deciding where within the guidelines range a sentence should fall, but a district court could prescribe a sentence that fell outside the range only if specific circumstances were present, as contemplated by the guidelines and policy statements and official commentary of the Sentencing Commission. In Brock’s sentencing hearing, Brock’s age, military service, and other personal characteristics were not “irrelevant,” but instead were relevant as to where Brock’s sentence should fall within the guidelines range. Brock does not argue that he should have been sentenced outside the guidelines range. The district court’s explanation of its sentencing decision indicates that the court did take into account Brock’s personal characteristics. The district court heard testimony about how Brock’s age, military service, and difficult childhood should influence the length of Brock’s sentence. See Dean, 414 F.3d at 730 (“the defendant must be given an opportunity to draw the judge’s attention to any factor listed in section 3553(a) that might warrant a sentence different" }, { "docid": "23048317", "title": "", "text": "government and Newsom to file any arguments concerning the disposition of this appeal; only Newsom responded. He challenges his sentence of 324 months as unreasonable on two grounds. First, he contends that the district court failed to consider his personal history and characteristics, as required by 18 U.S.C. § 3553(a)(1); second, he argues that the sentence is not reasonable because others who committed more heinous crimes were sentenced to shorter prison terms, which is inconsistent with § 3553(a)(6). Before Booker, the § 3553(a) factors could be considered only in limited circumstances; now the district courts must always consider these factors to determine if the advisory Guidelines range is appropriate. As we noted above, however, our role is not that of the sentencing court. “The question is not how we ourselves would have resolved the factors identified as relevant by section 3553(a).” Williams, 425 F.3d 478, 2005 WL 2455110, at *5. Furthermore, given the presumptive reasonableness of sentences within the Guidelines range, we have observed that it will be the rare sentence within the Guidelines range that “stands out as unreasonable.” Id For the reasons detailed below, we reject each of Newsom’s arguments. We look first at his assertion that the court failed properly to take his individual circumstances into account, including particularly his depression, alcohol abuse, and work history, as required by 18 U.S.C. § 3553(a)(1). He reads this court’s decision in United States v. Dean, 414 F.3d 725 (7th Cir.2005), as holding that the court must address the defendant’s personal characteristics if they are “decisive” to the sentence imposed. That is not quite what Dean said, however. Its exact language, insofar as it applies to Newsom’s case, was as follows: [T]he sentencing judge can discuss the application of the • statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge’s reasons, consistent with section 3553(a), for thinking the sentence that he has selected, is indeed appropriate for the particular defendant. Id. at 729. The opinion went on to say that explicit fact findings were required “if, though only" }, { "docid": "23630548", "title": "", "text": "565, 577-78 (7th Cir.2008) (discussing whether the district court failed to properly recognize the advisory nature of the guidelines); United States v. Schmitt, 495 F.3d 860, 865 (7th Cir.2007) (holding that a district court gave too much weight to the guidelines where “his remarks indicated that he felt that there was an outside constraint on his discretion that he was not free to set aside”); United States v. Ross, 501 F.3d 851, 853-54 (7th Cir.2007). Instead, the record demonstrates that the district court adequately explained its sentencing decision in light of the factors in § 3553(a) and Pedroza’s characteristics. Finally, Pedroza argues that his sentence is substantively unreasonable. He believes that a 360-month sentence is unnecessarily long in light of his age, fifty-seven, and points out that he will likely die in prison. He argues that a shorter sentence would sufficiently address the goals of sentencing. This argument is also unavailing. We presume that Pedroza’s sentence is reasonable because it falls within the properly calculated guidelines range. United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008). Pedroza “can rebut this presumption only by demonstrating that his or her sentence is unreasonable when measured against the factors set forth in § 3553(a).” United States v. Nitch, 477 F.3d 933, 937 (7th Cir.2007) (internal quotation marks and citation omitted). This is no easy task when the defendant receives the lowest possible within-guidelines sentence, which Pedroza did. We have written that such a sentence “will almost never be unreasonable.” United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.2008). Pedroza’s strongest argument is that he is likely to die in prison if his sentence is not reduced. Still, we find no abuse of discretion under the circumstances of this case. See Omole, 523 F.3d at 698 (“This totality-of-the-circumstances analysis requires that we defer to the sentencing judge, who considers each defendant as an individual and decides sentences on a case-by-case, rather than wholesale, basis. We recognize that the sentencing judge is in the best position to apply the § 3553(a) factors to the individual defendant, and that the judge sees things we" }, { "docid": "555755", "title": "", "text": "personal characteristics and family situation. Third, he notes that the district court did not address the fact that Alii will likely be deported and separated from his wife and child. Finally, he argues that the 21-month period of incarceration is greater than necessary to achieve the statutory goals of punishment. See § 3553(a). The first claimed indicator of unreasonableness is easily disposed of: because we conclude that the district court did not clearly err in calculating the intended loss, we accordingly also conclude that relying on that calculation in choosing a sentence was not unreasonable. The second and third claimed indicators amount to a claim that the district court did not adequately consider, or perhaps did not adequately explain its consideration of, factors the defense viewed as mitigating. When reviewing a district court’s consideration of a particular factor, “our emphasis ... will be on the provision of a reasoned explanation, a plausible outcome and — where these criteria are met— some deference to different judgments by the district judges on the scene.” Jimenez-Beltre, 440 F.3d 514, 519. In this case, however, neither Alii nor his lawyer brought the personal circumstances invoked in this appeal — the illness of Alli’s parents, his cooperation with law enforcement after his arrest, and the likelihood that he will be deported — to the attention of the judge at the sentencing hearing. Rather, when Alii was given the opportunity to speak at the hearing, he said simply, “I know I did something wrong, I’m sorry for what I did,” and his counsel argued only the guidelines calculation objections discussed earlier. The district judge’s explanation of why the sentence he chose met the requirements of § 3553(a) was admittedly terse. Except for the guidelines range, he discussed none of the § 3553(a) factors individually; instead, he simply stated, [T]his is one of those cases ... where I think the guidelines produce a sentence that is reasonable and perfectly consistent with the factors enumerated in the statute, 3553(a). I think all of those factors have been adequately taken into account by the guidelines, and the guideline range," }, { "docid": "555754", "title": "", "text": "will ordinarily calculate the applicable Guidelines range and then determine “whether other factors identified by either side warrant an ultimate sentence above or below the guideline range.” Id. at 519. The court is also bound to consider the sentencing factors set out in 18 U.S.C. § 3553(a). Robinson, 433 F.3d at 35. Finally, the court must, in most circumstances, explain its reasons for choosing the sentence it does. Jimenez-Beltre, 440 F.3d 514, 519. Here, the PSR proposed a guidelines sentencing range of 18 to 24 months. The district judge explained that he believed Alli’s crime was not a crime of opportunity and that that fact pointed him toward the high end of the range, but because the government recommended a sentence at the low end of the range, he compromised by sentencing Alii to a mid-range sentence of 21 months. Alii gives four reasons why the 21-month sentence is unreasonable. First, he cites the district court’s allegedly faulty calculation of intended loss. Second, he claims the district court failed to adequately take into account Alli’s personal characteristics and family situation. Third, he notes that the district court did not address the fact that Alii will likely be deported and separated from his wife and child. Finally, he argues that the 21-month period of incarceration is greater than necessary to achieve the statutory goals of punishment. See § 3553(a). The first claimed indicator of unreasonableness is easily disposed of: because we conclude that the district court did not clearly err in calculating the intended loss, we accordingly also conclude that relying on that calculation in choosing a sentence was not unreasonable. The second and third claimed indicators amount to a claim that the district court did not adequately consider, or perhaps did not adequately explain its consideration of, factors the defense viewed as mitigating. When reviewing a district court’s consideration of a particular factor, “our emphasis ... will be on the provision of a reasoned explanation, a plausible outcome and — where these criteria are met— some deference to different judgments by the district judges on the scene.” Jimenez-Beltre, 440 F.3d" }, { "docid": "23247095", "title": "", "text": "speak and present mitigating evidence before adopting the PSR’s findings and reasoning. Moreover, she explained that she found that the upward variance was necessary to deter future criminal conduct and to protect the public — proper considerations under § 3553(a)(2)(B) and § 3553(a)(2)(C). As this Court has explained, “[ejrror does not necessarily result when the district court’s reasons, as in this case, are not clearly listed for our review.” This is not a case where the sentencing judge “did not mention any § 3553 factors at all” and “did not give any reasons for its sentence beyond a bare recitation of the Guideline’s calculation.” In short, the record makes the sentencing judge’s reasoning clear and allows for effective review; no further explanation was required. B. Fraga argues that his sentence to 27 months of imprisonment is substantively unreasonable (1) because the sentencing judge failed to account for Fraga’s willingness to cooperate with the Government and (2) because the sentencing judge gave excessive weight to Fraga’s 1994 sexual assault conviction and the 2002 allegation of sexual assault, ignoring Fraga’s conduct over the last several years. He also argues that the sentencing judge failed to account for the age of the 1994 conviction. He contends that, because of these errors, his sentence is “greater than necessary” and “represents a clear error of judgment in balancing sentencing factors.” Generally, we review the reasonableness of a sentence for abuse of discretion, unless the issue was not raised below, in which case we review only for plain error. “Appellate review for substantive reasonableness is ‘highly deferential,’ because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant.” In determining the substantive reasonableness of a sentence, we consider “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Where, as here, the sentence is outside the Guidelines range, we “may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify" }, { "docid": "22655324", "title": "", "text": "condition, vulnerability in prison and the military service.” Id., at 65. Rita presented evidence and argument related to these three factors. The Government, while not asking for a sentence higher than the report’s recommended Guidelines range, said that Rita’s perjury had interfered with the Government’s potential “obstruction of justice” claim against InterOrdnance and that Rita, as a former Government criminal justice employee, should have known better than to commit perjury. Id., at 74-77. The sentencing judge asked questions about each factor. After hearing the arguments, the judge concluded that he was “unable to find that the [report’s recommended] sentencing guideline range ... is an inappropriate guideline range for that, and under 3553 ... the public needs to be protected if it is true, and I must accept as true the jury verdict.” Id., at 87. The court concluded: “So the Court finds that it is appropriate to enter” a sentence at the bottom of the Guidelines range, namely, a sentence of imprisonment “for a period of 33 months.” Ibid. D On appeal, Rita argued that his 33-month sentence was “unreasonable” because (1) it did not adequately take account of “the defendant’s history and characteristics,” and (2) it “is greater than necessary to comply with the purposes of sentencing set forth in 18 U. S. C. § 3553(a)(2).” Brief for Appellant in No. 05-4674 (CA4), pp. i, 8. The Fourth Circuit observed that it must set aside a sentence that is not “reasonable.” The Circuit stated that “a sentence imposed within the properly calculated Guidelines range ... is presumptively reasonable.” 177 Fed. Appx., at 358 (internal quotation marks and citations omitted). It added that “while we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual cases, we have no reason to doubt that most sentences will continue to fall within the applicable guideline range.” The Fourth Circuit then rejected Rita’s arguments and upheld the sentence. Ibid, (internal quotation marks omitted). E Rita petitioned for a writ of certiorari. He pointed out that the Circuits are split as to the use" } ]

[ { "docid": "22268054", "title": "", "text": "reliance on such Application as an accurate and complete representation of the Debtor’s financial condition. Simply phrased, the question is, whether faced with the knowledge the creditor had, was reliance on the given statement reasonable. See, Matter of William Smith Redford, 7 B.R. 322, 324 (Bkrtcy.N.D. Ga.1980); In re Lane, 10 B.R. 701, Bankr.L. Rep. (CCH) Decisions, ¶ 67,980 (Bkrtcy.N.D. Ohio 1981). Mr. Miller reviewed the listed liabilities and assessed that they were not “excessive” vis-a-vis the Debtor’s stated salary. Mr. Miller stated that he sought to ascertain the Debtor’s “ability to pay”. I find the Application is woefully incomplete to assist in making an “ability to pay” determination. The Application fails to inquire into (1) monthly installment payments on the listed obligations; and (2) outstanding encumbrances on the assets that may be listed (e. g., mere ownership of “Auto” listing). I find that even a complete and accurate answering of this Application would not render an accurate picture of financial condition in either an (1) asset net worth or (2) income/net cash flow evaluation. On its face, this Application is inherently unreliable due to the lack of sufficient solicited information to portray an applicant’s financial condition. See, In re Adams, 368 F.Supp. 80, 82-3 (D.S.D.1973); Matter of Henry Danesi, 6 B.R. 738, 740 (S.D.N.Y. 1980), aff’g 1 B.R. 234 (Bkrtcy.S.D.N.Y. 1979). In a situation where a creditor asserts complete reliance on a debtor’s completion of a “form” statement of financial condition, the statement, to engender reasonable reliance, must be of such a character that it portrays a net asset worth or net income figure. Under an objective standard of “reasonable reliance’ I find that the Credit Union fails to meet its burden of proof on that element. C. Assuming arguendo that reasonable reliance was shown, the last element of requisite proof for the Credit Union is clear and convincing evidence of the Debtor’s “intent to deceive” when executing his Application. See, 11 U.S.C. 523(a)(2)(B)(iv). Obtaining credit by a materially false financial statement will prevent bankruptcy discharge if the bankrupt-debtor either (1) had actual knowledge of the falsity of the" } ]

[ { "docid": "22828776", "title": "", "text": "creditors who have acted unreasonably. In re Brewood, 15 B.R. 211, 215 (Bkrtcy.D.Kan.1981); see also In re Arden, 2 B.C.D. at 207. On the other hand, negligence on the part of the creditor does not automatically exonerate the debtor, even where the creditor was “noticeably negligent.” In re Reinhart, 1 B.C.D. 666, 667 (B.C.E.D.Va.1975). It is not the court’s duty to “second guess” a creditor’s decision to make a loan or to “set loan policy” for a creditor. In re Garman, 643 F.2d at 1258. Thus, in an effort to construct some yardstick to measure the reasonableness of a creditor’s decision to make a loan, one court has stated: “An objective standard by which to measure ‘reasonableness’ requires that representations must be found to be of such a character that a reasonably prudent person would rely on them. Such a standard fosters a responsible and careful use of solicited financial statements and discourages the ‘spurious use’ of such statements which are obtained primarily with a view to the exception to discharge if the debtor defaults and declares bankruptcy.” In re Magnusson, 14 B.R. at 668-69 n.1. Unlike the situation where the creditor is fully informed of all risks and could have conducted additional research at little cost, the Bank in our case had no way to decipher the true relationship between American European and Newmark and Rosano for they were in reality one and the same. See, e.g. In re Breen, 13 B.R. at 969 (“[A]ll the [creditor] had to do was pick up the phone and make a call to [a certain lender] to ascertain the actual balance and the monthly payments due on the mortgage-”). Although the creditor here is a fairly large commercial bank situated in a major metropolitan area known as a center of world finance and presumably is well-versed in loan matters, see, e.g., In re Shepherd, 13 B.R. at 372, Newmark’s resort to using American European was to shield the real purchase price and relationship between American European and himself. The effect of this artifice was to throw the creditor “off guard” and thereby" }, { "docid": "1124721", "title": "", "text": "owned the home in which the water treatment system was to be installed. Although the term “reasonable reliance” is not defined by statute, an objective standard has developed to examine whether the creditor’s reliance on a false financial statement was reasonable. Texas Am. Bank, Tyler, N.A. v. Barron, 126 B.R. at 259; Management Jets Int’l, Inc. v. Mutschler (In re Mutschler), 45 B.R. 482, 492-93 (Bankr.D.N.D.1984). This test focuses on whether the statement is of such a nature that a reasonably prudent person would rely upon it. “Such a standard fosters a responsible and careful use of solicited financial statements and discourages the ‘spurious’ use of such statements which are obtained primarily with a view to the exception to discharge if the debtor defaults and declares bankruptcy.” Waterbury Community Fed. Credit Union v. Magnusson (In re Magnusson), 14 B.R. 662, 668-69, n. 1 (Bankr.N.D.N.Y.1981); see Beneficial New York Inc. v. Bossard (In re Bossard), 74 B.R. 730, 736, n. 3 (Bankr.N.D.N.Y.1987). Even partial reli- anee by a creditor on a false financial statement may be sufficient under Code § 523(a)(2)(B)(iii). Examples of unreasonable reliance on a materially false financial statement include situations where the creditor knows or has reason to know that the financial statement is false, see, e.g., Telco Leasing, Inc. v. Patch (In re Patch), 24 B.R. 563 (D.Md.1982); IGF Leasing Co. v. Harms, 53 B.R. at 144; where the financial statement is so deficient that it fails to portray a realistic picture of the debtor’s financial status, see, e.g., Heinold Commodities & Sec., Inc. v. Hunt, 30 B.R. at 425; Waterbury Community Fed. Credit Union v. Magnusson, 14 B.R. at 668; where the creditor’s own investigation indicates that the financial statement may be false, see, e.g., Heinold Commodities & Sec., Inc. v. Hunt, 30 B.R. at 449; Telco Leasing, Inc. v. Patch, 24 B.R. at 567-68; or where the creditor, under certain circumstances, failed to verify the information contained in the statement, see, e.g., In re Bogstad, 779 F.2d 370 (7th Cir.1985). Debtors assert that they told Plaintiff’s telemarketer and salesman that they did not own their" }, { "docid": "10165993", "title": "", "text": "financial information; (3) the creditor’s investigation of the statement suggests its falsity or incompleteness; and (4) the creditor fails to verify information on the statement. In Re Price, 48 B.R. 211, 213 (Bankr.S.D.Fla.1985). “ ‘[Reasonableness requires that representations must be found to be of such a character that a reasonably prudent person would rely on them. Such a standard fosters a responsible and careful use of solicited financial statements and discourages the ‘spurious use’ of such state ments.’ ” National Bank of North America v. Newmark, 20 B.R. 842, 862 (Bankr.E.D.N.Y.1982) quoting In Re Magnusson, 14 B.R. 662, 668-69, n. 1 (Bankr.N.D.N.Y. 1981). “[Tjhe majority of cases make clear that a lender has a duty to make a reasonable effort to check the credit rating of the debtor and not to rely upon just the financial statement.” Matter of Breen, 13 B.R. 965, 969 (Bankr.S.D.Ohio 1981). Accord, Matter of Stout, 39 B.R. 438, 441 (Bankr.W.D.Mo.1984); In Re Tashman, 21 B.R. 738 (Bankr.D.Vt.1982); In Re West, 21 B.R. 872 (Bankr.D.Mass.1980); In Re Montbleau, 13 B.R. 49 (Bankr.D.Mass.1981). Reliance has been found unreasonable where the financial statement discloses facts that would put a reasonable creditor on notice that it should make further inquiry. In Re Biedenharn, 30 B.R. 342, 345 (Bankr.W.D.La.1983); Matter of Granovetter, 29 B.R. 631, 640 (Bankr.E.D.N.Y.1983). In the present case, the Bank officer’s testimony shows that even if the Bank did in fact rely on the financial statement it was not reasonable in its reliance. The bank officer failed to conduct even a simple credit investigation of Delano or his Massachusetts corporation when the Bank had no previous dealings with them and had no knowledge of Delano’s business abilities. The loan officer did not even request credit references from Delano such as from business suppliers or his mortgagee. More importantly, the Bank ignored the “red flag” of the financial statement— the accountant’s explanatory letter disclosing that omissions in the financial statement might affect the user’s conclusions. Monsted did not even call or write to the accountant, when he had his address and telephone number, to discuss the financial statement." }, { "docid": "14439378", "title": "", "text": "§ 523(a)(2)(B) of the Bankruptcy Code. Citizens argued that discharge should be barred because the Broyles had falsified their financial statements, specifically by representing that David owned the EMI real estate and by omitting the $766,434 debt to Emily’s parents. After a bench trial, the bankruptcy court dismissed Citizens’ complaint. The court had no trouble finding the Broyles’ financial statements to be materially false written descriptions of their financial condition published, at least in part, with the intent to deceive. It concluded, however, that to successfully bar a discharge, a creditor must establish all four elements of § 523(a)(2)(B) and that the bank had not demonstrated its reliance upon the contents of the Broyles’ financial statements in advancing the 1989 loans or extending the line of credit in 1990. II We agree with the bankruptcy court’s analysis of the statute. See In Re Rotman, 133 B.R. 843, 844 (S.D.Tex.1991) (“The language of § 523(a)(2)(B) is explicit; reasonable reliance is one of four criteria each of which must be met for a discharge to be denied based on this exception.”); In Re Spilotros, 117 B.R. 691, 692-93 (M.D.Fla.1990) (“All elements, including reasonable reliance, must be proven by Plaintiff for a debt to be declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B).”); In re Bush, 696 F.2d 640, 644 n. 4 (8th Cir.1983) (“If an objecting creditor fails to prove every element contained in § 523(a)(2)(B) of the Bankruptcy Code of 1978, the debt in question is dischargeable.”). The sole issue, then, is whether the bankruptcy court clearly erred in finding that Citizens did not rely upon the Broyles’ financial statements. In re Morris Communications NC, Inc., 914 F.2d 458, 467 (4th Cir.1990) (court of appeals reviews bankruptcy court’s factual findings for clear error); Bankruptcy Rule 8013. Under the clearly erroneous standard, a reviewing court will not reverse “simply because it is convinced that it would have decided the case differently.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). A finding of fact is clearly erroneous only when the reviewing court “is left with" }, { "docid": "18727522", "title": "", "text": "by line with Williams. On this point, we accept Williams’ version that such a review was never conducted but that instead, French accepted the statement and thereafter informed him at some point, that he was approved for the loan. Therefore, the bank’s argument that it had no reason to question the financial statements because Williams had verbally reaffirmed their accuracy is specious and is rejected. Having failed to establish the reasonableness of its reliance on Williams’ financial statements, we conclude that Citibank has not met its burden under § 523(a)(2)(B) to have Williams’ debt to it declared nondischargeable. Accordingly, that request is DENIED. B. 11 U.S.C. § 727 — Denial of Discharge Citibank next argues that Williams should be denied a discharge pursuant to § 727(a)(2)(A). To prevail under this section, the bank must establish that: (1) a transfer of property has occurred; (2) it involved property of the debtor; (3) the transfer was within one year of the filing of the petition; (4) the debtor had, at the time of the transfer, the intent to hinder, delay or defraud a creditor. In re Clausen, 44 B.R. 41 (Minn.1984), and the burden is on Citibank to prove the requisite elements of § 727, by a preponderance of the evidence. McGowan v. Beausoleil (In re Beausoleil), 142 B.R. 31 (Bankr.D.R.I.1992); Fed.R.Bankr.P. 4005. Our findings of fact ante confirm that the first three elements have been satisfied. Williams transferred property which he owned, or purported to own, within one year of his bankruptcy filing. Although the issue of ownership is certainly a disputed one now, based upon the collusive activities of both Williams to treat the personalty as owned solely by Larry at the time he was requesting the $4 Million loan, they are bound by this representation for purposes of the § 727 claim. Thus, the only remaining issue is whether the transfer of substantially all of Larry’s personal property to Diana on the eve of his bankruptcy filing was done with intent to hinder, delay or defraud Citibank, and we conclude that it was. This result is inescapable, given the" }, { "docid": "13149259", "title": "", "text": "of Miami v. Lowinger, 19 B.R. 853 (Bkrtcy.S.D.Fla.1982), this Court remarked that the “frauds included in [§ 523(a)(2) ] are those which in fact involve moral turpitude or intentional wrong; fraud'implied in law, which may exist without imputation of bad faith or immorality, is insufficient.” Lowinger at 855. BARNETT has failed to establish by clear and convincing evidence that its disbursement of loan proceeds of this magnitude to the Debtor within one (1) hour after entering the bank premises for the purpose of procuring said loan was made with reliance upon those representations and that such reliance was reasonable. In National Bank of North America v. Newmark, 20 B.R. 842 at 861 (Bkrtcy.E.D.N.Y.1982), the Court utilized a yardstick approach to the issue of reasonableness stating that: An objective standard by which to measure “reasonableness” requires that representations must be found to be of such a character that a reasonably prudent person would rely on them. Such a standard fosters a responsible and careful use of solicited financial statements and discourages the “spurious use” of such statements. Newmark 20 B.R. at 862. The reasonableness of Plaintiff’s reliance upon the financial statement dated March 27, 1981 becomes questionable when the statement so heavily relied upon by Plaintiff was provided almost contemporaneously with the issuance of the loan proceeds. In applying the objective standard espoused in Newmark to the present case, it is clear that BARNETT failed to use the debt- or’s financial statement in a responsible and careful manner. By acting in such an unreasonable and reckless manner with regard to its own interests, BARNETT “... will be bound by these actions and be foreclosed from objecting to the debtor’s discharge-ability”. Newmark, 20 B.R. at 861. The above discussion similarly destroys Plaintiff’s intimation that the debtor’s financial statement of March 27, 1981, proximately caused a loss by BARNETT. The Court finds that failure to protect its interest was the true cause of damage and the debtor in no way induced BARNETT through affirmative fraud or deception. Based upon the foregoing, the Court finds that Plaintiff has failed to carry its burden of" }, { "docid": "18727490", "title": "", "text": "relevant to the decision to make the loan, and were relied upon by Citibank. We reject Williams’ argument that the economic strength of Davidge was the basis of the bank’s decision to grant the loan and that his personal financial condition was irrelevant. We find that Citibank was relying upon the financial wherewithal of Williams as well as the value of Davidge. The question requiring the most serious attention, however, is the reasonableness of Citibank’s reliance, in light of the scant due diligence it conducted, and in its almost blind acceptance of the unverified information supplied by Williams. 1. The Financial Statement In his November 3, 1989 financial statement to Citibank, Williams failed to disclose that the municipal securities, valued at $2.7 Million, were pledged to BONY as security for its $3.1 Million loan, along with the mortgage on his home, and we find that this concealment was deliberate, and not an oversight. Larry Williams is perhaps the most sophisticated businessperson to appear before this Court in defense of the accuracy of a financial statement and, with that background, the luxury of claiming ignorance, misunderstanding or mistake is just not available to him. This is true also, regarding his tax problems, wherein Williams failed to list a potential $2 Million tax liability on his financial statement under the heading “contingent liabilities.” His (unacceptable) explanation is that he interpreted the phrase to mean “known liabilities,” or ones that are in existence at the time. We, however, are unable to equate “contingent” with “known liability” and find that, at a minimum, Williams had an obligation to inform the bank about (1) the open nature of his tax exposure; (2) his several tax shelter problems and any pending or potential litigation; and/or (3) to inquire about the meaning of “contingent liability,” if he truly was confused by the term. On this same financial statement, Williams listed all of the personal property, valued at $2.2 Million, as solely his property, and not as jointly owned with his wife, Diana. This property includes jewelry, artwork, silver, crystal, antiques and other valuables, and his explanation for" }, { "docid": "18727489", "title": "", "text": "counselling firm in Washington and a Fleet Bank subsidiary. His initial proposal to Fleet was a purchase price of $1MM for Davidge and $4MM for the Davidge accounts (asset purchase). Da-vidge accepted his offer, subject to several things. Larry has asked us to finance the purchase. The cash flow, on a no growth basis, based upon ’86 figures, can support a $4MM loan. The Company itself could be resold for $8MM-$10MM according to Dick Pike, VP, in our investment research group. Dick Pike is the analyst who follows Banks, Brokerage and Investment Counselling operations for Citibank. (Citibank’s Ex. 67.) To supplement the application, French requested an updated financial statement and, on November 3, 1988, Williams forwarded one to her. Although there is disagreement about whether, prior to receiving the financial and cash flow statements, French advised Williams that he was verbally approved for a $4 Million loan, we believe that at most this was a conditional approval and that all written materials furnished to the bank prior to the issuance of the approval memorandum were relevant to the decision to make the loan, and were relied upon by Citibank. We reject Williams’ argument that the economic strength of Davidge was the basis of the bank’s decision to grant the loan and that his personal financial condition was irrelevant. We find that Citibank was relying upon the financial wherewithal of Williams as well as the value of Davidge. The question requiring the most serious attention, however, is the reasonableness of Citibank’s reliance, in light of the scant due diligence it conducted, and in its almost blind acceptance of the unverified information supplied by Williams. 1. The Financial Statement In his November 3, 1989 financial statement to Citibank, Williams failed to disclose that the municipal securities, valued at $2.7 Million, were pledged to BONY as security for its $3.1 Million loan, along with the mortgage on his home, and we find that this concealment was deliberate, and not an oversight. Larry Williams is perhaps the most sophisticated businessperson to appear before this Court in defense of the accuracy of a financial statement" }, { "docid": "1799965", "title": "", "text": "In re Kroh, 88 B.R. 987 (Bankr.W.D.Mo.1988). The standard for determining whether such reliance was reasonable is objective—i.e., that degree of care which would be exercised by a reasonably cautious person in an average business transaction. In re Icsman, 64 B.R. 58 (Bankr.N. D.Ohio 1986). A creditor does not have an affirmative duty to verify the accuracy of a financial statement. Matter of Earls, 80 B.R. 978 (W.D.Mo.1987). It is not obligated to conduct an independent investigation when, on its face, all facts are sworn to as accurate. In re Kroh, supra at 994. Accordingly, the fact that Horowitz relied on Debtor’s representations concerning her liabilities and did not independently verify them does not entail that its reliance was unreasonable. The financial statement was complete on its face, contained no apparent inconsistencies, and gave no indication that Horowitz should have attempted to verify the accuracy of the representations as to Debtor’s liabilities. Horowitz had no reason to suspect that Debtor had grossly understated her contingent liabilities by approximately $9 million. In addition, there is no reason to believe that a time-consuming and costly, all-inclusive investigation on the part of Horowitz as to Debtor’s liabilities would have uncovered the inaccuracies. In fact, when Horowitz contacted Naples, which had been identified as a credit reference by Ronald Hall prior to the $600,000.00 loan, Naples informed Horowitz that Debtor was a “good customer”. Said statement was clearly a subjective opinion. For reasons of their own, Naples determined it would not, or legally could not, advise Plaintiff that Debtor had guaranteed $1,400,000.00 in loans by Naples. When a financing statement, on its face, contains no information suggesting the need for further investigation, and there is no reason to believe that further investigation would have revealed inaccuracies in the financial statement, a creditor’s reliance on it is reasonable. Matter of Garman, 643 F.2d 1252 (7th Cir.1980). Debtor further claims that Horowitz had failed to establish by clear and convincing evidence that she published the financial statement with intent to deceive Horowitz. See 11 U.S.C. § 523(a)(2)(B)(iv). Debtor testified at trial that she completely trusted her" }, { "docid": "3468277", "title": "", "text": "is nondischargeable pursuant to § 523(a)(2)(A). The Bank also seeks relief under 11 U.S.C. § 523(a)(2)(B). Under that section a debt is nondischargeable if obtained by a statement that is (1) materially false; (2) respecting the debtor’s ... financial condition; (3) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (4) that the debtor caused to be made or published with intent to deceive. Each of the elements of this section have been met. First, a financial statement is materially false if it, as a whole, is found to be “a false representation of the overall financial condition of the debtor.” In re Mutschler, 45 B.R. 482 491[6] (Bankr.N.D.1984). A financial statement with major omissions may also be considered as containing a materially false representation. Id. Also, financial statements that fail to list contingent liabilities are materially false. In re Bebar, 315 F.Supp. 841[8] (E.D.N.Y.1970). The financial statements of both John and George were materially false in all three of the above respects. The statements grossly overstated their net worth and grossly understated both their bank debt and their contingent liabilities as of October 21,1988. The misrepresentations were fraudulent and produced financial statements that falsely represented the overall financial condition of the brothers. Second, the Bank reasonably relied on the financial statements. When evaluating a creditor’s reliance on financial statements, courts should be mindful of the danger of slipping into a review of the creditor’s business judgment instead of focusing on whether it was reasonable for the creditor to rely on the debtor’s misrepresentation. McMillan v. Firestone, 26 B.R. 706, 718 (Bankr.S.D.Fla.1982). Reasonable reliance comports with a bank’s normal business practice. A bank should never be required to exceed its own internal policies before it will be deemed to have reasonably relied upon the financial statement of a debtor. In re Esposito, 44 B.R. 817, 825 (Bankr.S.D.N.Y.1984); accord, Mutschler, 45 B.R. at 493. When a creditor’s reliance is at issue under § 523(a)(2)(B) the court should examine the following: ‘[T]he creditor’s standard practices in evaluating loan applications; industry standards;" }, { "docid": "1868981", "title": "", "text": "prior to 1990, called as a witness. Moreover, the three year hiatus between the 1987 guarantees obtained by FABNY and the 1990 PFS tends to negate actual reliance. In sum, the record supports the substantial likelihood that FABNY’s reliance was on the perceived financial strength and historical payment performance of Archway and not the personal guarantees of the Bodensteins. Assuming arguendo that actual reliance was shown, FABNY failed to demonstrate reasonable reliance on the 1990 PFS. Mr, Levine testified that he relied upon the Israel and Catskill Property entries contained on the 1990 PFS. However, he conducted no investigation or sought no verification whatsoever in respect of those entries. His verification of information contained on the 1990 PFS was restricted to only a visit to the Bodensteins’ home. Mr. Levine took pains to point out that their home was the major asset on the 1990 PFS. The term “reasonable reliance” is not defined by the statute. Some courts would impose an affirmative duty to investigate a debtor’s financial condition in order for a creditor’s reliance to be deemed reasonable. An important early case under the Bankruptcy Code imposing such a duty is First Nat’l Bank of Dayton, Ohio v. Breen (In re Breen), 18 B.R. 965 (Bankr.S.D.Ohio 1981); see also Kentucky Bank & Trust Co. v. Duncan (In re Duncan), 35 B.R. 323, 326 (Bankr.W.D.Ky.1983), (Bank’s challenge to dischargeability rejected because, among other things, bank had “ignored its commercial duty to verify ... information [on the financial statement].”). This bankruptcy judge subscribes to a standard of “reasonable reliance” adopted by another member of this Court and articulated as follows: ‘[R]easonableness’ requires that representations must be found to be of such a character that a reasonably prudent person would rely on them. Such a standard fosters responsible and careful use of solicited financial statements and discourages the ‘spurious use’ of such statements.... National Bank of N. Am. v. Newmark (In re Newmark), 20 B.R. 842, 862 (Bankr.E.D.N.Y.1982) (quoting Waterbury Community Fed. Credit Union v. Magnusson (In re Magnusson), 14 B.R. 662, 668-69 n. 1 (Bankr.N.D.N.Y.1981)). On its face, the Israel and" }, { "docid": "1868982", "title": "", "text": "to be deemed reasonable. An important early case under the Bankruptcy Code imposing such a duty is First Nat’l Bank of Dayton, Ohio v. Breen (In re Breen), 18 B.R. 965 (Bankr.S.D.Ohio 1981); see also Kentucky Bank & Trust Co. v. Duncan (In re Duncan), 35 B.R. 323, 326 (Bankr.W.D.Ky.1983), (Bank’s challenge to dischargeability rejected because, among other things, bank had “ignored its commercial duty to verify ... information [on the financial statement].”). This bankruptcy judge subscribes to a standard of “reasonable reliance” adopted by another member of this Court and articulated as follows: ‘[R]easonableness’ requires that representations must be found to be of such a character that a reasonably prudent person would rely on them. Such a standard fosters responsible and careful use of solicited financial statements and discourages the ‘spurious use’ of such statements.... National Bank of N. Am. v. Newmark (In re Newmark), 20 B.R. 842, 862 (Bankr.E.D.N.Y.1982) (quoting Waterbury Community Fed. Credit Union v. Magnusson (In re Magnusson), 14 B.R. 662, 668-69 n. 1 (Bankr.N.D.N.Y.1981)). On its face, the Israel and Catskill Property entries on the 1990 PFS were odd and out of the ordinary, crying out for some investigation or verification. A reasonably prudent person should not have relied blindly on those entries. Surely, ownership of real estate in a troubled foreign country warrants some inquiry. An unusual entry of “Investment — Real Estate”, referring to the Catskill Property under “Other Assets”, rather than under “Real Estate Owned” demands some probing, inquiry or, at least clarification. FABNY cannot assume the position of an ostrich with its head buried, ignoring obvious questions, and yet claim that it reasonably relied on these entries. FABNY contends that FABNY’s reliance on the 1990 PFS was justified in light of the extended and ongoing favorable relationship between the parties from 1983-1990. This argument is misplaced under the facts of this case. Indeed, it has been held that, in certain situations, a special or longstanding relationship between a lender and a borrower justifies a lender’s reliance on a financial statement provided by the borrower, without investigation or verification. See, Coman v." }, { "docid": "13149258", "title": "", "text": "well settled that a creditor seeking to except its claim from a Chapter 7 discharge through Section 523(a)(2)(B) must prove each of the elements specified therein. See, Bank of Putnam County v. West, 21 B.R. 872 at 875-75 (Bkrtcy.M.D.Tenn.1982) and Southern Discount Company v. Mausser, 4 B.R. 728 (Bkrtcy.S.D.Fla.1980). The essential elements of a dischargeable debt are that: (1) The Debtor made materially false representations in writing respecting the Debtor’s financial condition; (2) The Debtor knew the representations were false at the time that they were made; (3) The Debtor made the representations with the intention and purpose of deceiving the creditor; (4) The Creditor reasonably relied upon the Debtor’s materially false representations; and (5) The Creditor sustained loss and damages as the proximate result of the misrepresentations. In reviewing each and every element to be proved “... it has long been the law that this exception to the general discharge of debts is strictly construed in favor of the bankrupt”. Bank of Putnam County v. West, 21 B.R. 872, 875 (Bkrtcy.M.D.Tenn. 1982). In Bank of Miami v. Lowinger, 19 B.R. 853 (Bkrtcy.S.D.Fla.1982), this Court remarked that the “frauds included in [§ 523(a)(2) ] are those which in fact involve moral turpitude or intentional wrong; fraud'implied in law, which may exist without imputation of bad faith or immorality, is insufficient.” Lowinger at 855. BARNETT has failed to establish by clear and convincing evidence that its disbursement of loan proceeds of this magnitude to the Debtor within one (1) hour after entering the bank premises for the purpose of procuring said loan was made with reliance upon those representations and that such reliance was reasonable. In National Bank of North America v. Newmark, 20 B.R. 842 at 861 (Bkrtcy.E.D.N.Y.1982), the Court utilized a yardstick approach to the issue of reasonableness stating that: An objective standard by which to measure “reasonableness” requires that representations must be found to be of such a character that a reasonably prudent person would rely on them. Such a standard fosters a responsible and careful use of solicited financial statements and discourages the “spurious use” of such" }, { "docid": "13626750", "title": "", "text": "reliance requirement is often satisfied by evidence that the credit would not have been extended if accurate financial information had been disclosed. See In re Coughlin, 27 B.R. 632, 637 (1st Cir. BAP 1983). However, the court must consider all surrounding circumstances, including whether information available to the creditor indicates that further inquiry should be made. See Sinclair Oil Corp. v. Jones (In re Jones), 31 F.3d 659, 662 (8th Cir.1994); Smith v. Cunningham (In re Cunningham), 163 B.R. 657, 661 (Bankr.D.Mass.1994); Shawmut Bank, N.A. v. Goodrich (In re Goodrich), 999 F.2d 22, 24-25 (1st Cir.1993); Coston v. Bank of Malvern (In re Coston), 991 F.2d 257, 261 (5th Cir.1993). The creditor failing to pursue warning signs risks the court’s finding lack of reasonable reliance. See 4 Collier on Bankruptcy ¶ 523.08[2][d] (Lawrence P. King ed., 15th ed. rev.2001). Davis argues that Global did not reasonably rely on the financial statement because it was unsigned and also dated several months prior to delivery to Global. He asserts that these factors required Global to further investigate the contents of the statement. Plaintiffs financial officer, Todd, testified that he performed outside investigation of the financial statement by obtaining Equifax credit reports and various unspecified vendor references. Otherwise, Todd accepted the statement at face value and relied upon just four of the asset values set out in the statement, ie., values for the checking account, real estate, mutual fund, and tax refund. The witness stated that he would not have approved the agreement if Davis’ financial statement had stated the correct values of these assets. The financial statement dated November 18, 1998, was three months-old when delivered to Global in mid-February 1999. The court does not agree with Davis’ assertion that the age of the statement in itself precluded Global’s reasonable reliance. Rather, the reasonable reliance analysis must depend on specific entries, and the court agrees with Davis that Global could not have reasonably relied on the November 18 statement as to the value of a checking account or the 1997 tax refund. A checking account can materially vary from month to month," }, { "docid": "1124720", "title": "", "text": "Certificate that they owned their residence qualify as statements concerning their financial condition. 5. Plaintiff Reasonably Relied Upon the False Financial Statement Code § 523(a)(2)(B)(iii) specifies that a creditor must establish two elements. Not only must the creditor demonstrate that it relied upon the false financial statement, but it also must establish that its reliance was reasonable. Texas Am. Bank, Tyler, N.A. v. Barron (In re Barron), 126 B.R. 255, 259 (Bankr.E.D.Tex. 1991). The Work Order, Credit Application and Capital Improvement Certificate taken together persuaded Plaintiff to finance the transaction. Through the uncontroverted testimony of its president, Plaintiff established that Debtors’ representation of home ownership was one of two criteria it relied upon in deciding to finance Debtors’ purchase of the water treatment system. In fact, Plaintiff’s president testified that if Debtors had revealed that they did not own their home, Plaintiff would have refused to approve their application for financing. This is substantiated by the telemarketing manager’s testimony that the main purpose of the initial phone solicitation was to determine whether a prospective purchaser owned the home in which the water treatment system was to be installed. Although the term “reasonable reliance” is not defined by statute, an objective standard has developed to examine whether the creditor’s reliance on a false financial statement was reasonable. Texas Am. Bank, Tyler, N.A. v. Barron, 126 B.R. at 259; Management Jets Int’l, Inc. v. Mutschler (In re Mutschler), 45 B.R. 482, 492-93 (Bankr.D.N.D.1984). This test focuses on whether the statement is of such a nature that a reasonably prudent person would rely upon it. “Such a standard fosters a responsible and careful use of solicited financial statements and discourages the ‘spurious’ use of such statements which are obtained primarily with a view to the exception to discharge if the debtor defaults and declares bankruptcy.” Waterbury Community Fed. Credit Union v. Magnusson (In re Magnusson), 14 B.R. 662, 668-69, n. 1 (Bankr.N.D.N.Y.1981); see Beneficial New York Inc. v. Bossard (In re Bossard), 74 B.R. 730, 736, n. 3 (Bankr.N.D.N.Y.1987). Even partial reli- anee by a creditor on a false financial statement may be" }, { "docid": "10165992", "title": "", "text": "received accurate information. As has already been pointed out, if the Bank actually was basing its decision on the value of the house, it would have obtained a mortgage and not have left the liability as unsecured. Had the bank really intended to rely on the equity in the real estate and taken a mortgage the Bank’s debt would have been fully protected even with the undisclosed Vauclain $27,000 mortgage because the house, worth $250,000, had only one encumbrance of $148,800 and the land, worth $30,000, was unencumbered. Assuming arguendo that there was a material misrepresentation that would have affected the Bank’s judgment, the reasonableness of a lender’s reliance must be determined by comparing the Bank’s actual conduct with its normal business practice, the standards and customs in the industry, and the particular circumstances of the loan request. In Re Patch, 24 B.R. 563 (Bankr.D.Md.1982). The courts have found a lender’s reliance on a financial statement unreasonable where: (1) the creditor knows that the financial information is not accurate; (2) the statement contains obviously inadequate financial information; (3) the creditor’s investigation of the statement suggests its falsity or incompleteness; and (4) the creditor fails to verify information on the statement. In Re Price, 48 B.R. 211, 213 (Bankr.S.D.Fla.1985). “ ‘[Reasonableness requires that representations must be found to be of such a character that a reasonably prudent person would rely on them. Such a standard fosters a responsible and careful use of solicited financial statements and discourages the ‘spurious use’ of such state ments.’ ” National Bank of North America v. Newmark, 20 B.R. 842, 862 (Bankr.E.D.N.Y.1982) quoting In Re Magnusson, 14 B.R. 662, 668-69, n. 1 (Bankr.N.D.N.Y. 1981). “[Tjhe majority of cases make clear that a lender has a duty to make a reasonable effort to check the credit rating of the debtor and not to rely upon just the financial statement.” Matter of Breen, 13 B.R. 965, 969 (Bankr.S.D.Ohio 1981). Accord, Matter of Stout, 39 B.R. 438, 441 (Bankr.W.D.Mo.1984); In Re Tashman, 21 B.R. 738 (Bankr.D.Vt.1982); In Re West, 21 B.R. 872 (Bankr.D.Mass.1980); In Re Montbleau, 13 B.R. 49" }, { "docid": "3468278", "title": "", "text": "statements grossly overstated their net worth and grossly understated both their bank debt and their contingent liabilities as of October 21,1988. The misrepresentations were fraudulent and produced financial statements that falsely represented the overall financial condition of the brothers. Second, the Bank reasonably relied on the financial statements. When evaluating a creditor’s reliance on financial statements, courts should be mindful of the danger of slipping into a review of the creditor’s business judgment instead of focusing on whether it was reasonable for the creditor to rely on the debtor’s misrepresentation. McMillan v. Firestone, 26 B.R. 706, 718 (Bankr.S.D.Fla.1982). Reasonable reliance comports with a bank’s normal business practice. A bank should never be required to exceed its own internal policies before it will be deemed to have reasonably relied upon the financial statement of a debtor. In re Esposito, 44 B.R. 817, 825 (Bankr.S.D.N.Y.1984); accord, Mutschler, 45 B.R. at 493. When a creditor’s reliance is at issue under § 523(a)(2)(B) the court should examine the following: ‘[T]he creditor’s standard practices in evaluating loan applications; industry standards; and particular circumstances existing when the financial statement is presented ... [Reasonableness] should be viewed as a test of credibility. Reasonableness is not, with respect to the victim of an intentional tort, a framework of legal standards fashioned from an affirmative duty.’ Matter of Earls, 80 B.R. 978, 980 (W.D.Mo.1987), quoting In re Richards, 71 B.R. 1017, 1022 (Bankr.D.Minn.1987). An independent investigation is not necessary. Id. Here, the Bank followed its internal lending policies and refused to lend the funds until it received the information it needed to approve or disapprove the loan. Two different bank officers made independent reviews of the financial statements and a credit check was made. There was no evidence that the banking community was aware of KBDC’s financial situation at the time the loan was made. Both Haseltine and Catlett testified they would not have approved the loans had they known the true financial conditions of the brothers. Further, a bank may reasonably rely on the contents of a financial statement, especially “when the provider of the financial statement is" }, { "docid": "10184165", "title": "", "text": "after the debtor had submitted a financial statement omitting a mortgage on certain real property. In rejecting the creditor’s challenge to dischargeability, the bankruptcy court held that the creditor’s reliance was unreasonable because it could have discovered the mortgage by conducting a title examination or by telephoning the financial institution that held the mortgage and which was listed on the financial sheet as the holder of another mortgage. See 13 B.R. at 969; see also In re Duncan, 35 B.R. 323 (Bankr.W.D.Ky.1983) (bank’s challenge to dischargeability of debt rejected because, among other reasons, bank had “ignored its commercial duty to verify ... information [on the financial statement]”); cf. Matter of Shepherd, 13 B.R. 367 (Bankr.S.D. Ohio 1981) (creditor showed a “lack of due care” by failing to demand certificate of title to truck, which was supposed to secure debtor’s loans, and debt therefore not excepted from discharge under section 523(a)(2)(A) as a false representation when in fact debtor did not own truck title). The problem with cases placing a duty of verification on creditors is that the duty appears to derive not from congressional intent but rather from judicial revision. The courts in these cases typically use the indefiniteness of the term “reasonably relied” as a point of departure. See, e.g., Breen, 13 B.R. at 968-69. Broad inferences from legislative history then follow. “The history of statutory and case law clearly indicate[s] the need for protection of naive and inexperienced bankrupts from the actions of creditors more sophisticated and knowledgeable (and at times unscrupulous).” Id. at 968. The bankruptcy court offered no citation of authority for this pronouncement. Upon such a frail lattice the trends have been growing. Significantly, moreover, this trend has sprouted only recently. Breen is a 1981 case, and it espouses a theory without roots in prior law. The cases codified by section 523(a)(2)(B)(iii), by contrast, are more limited in effect. Generally, these cases involve three situations in which a creditor’s reliance would be held unreasonable. First, reliance would be considered unreasonable if the creditor knew that the information on the financial statement was false. See, e.g.," }, { "docid": "20051803", "title": "", "text": "BIRCH, Circuit Judge: This appeal presents the first impression issue of what standard of reliance a creditor must satisfy under section 523(a)(2)(A) of the Bankruptcy Code to prevent the discharge of a debt. The bankruptcy court held that a creditor’s reliance on the debtor’s misrepresentations must be reasonable. The court rejected the creditor’s claim that reasonable reliance was an overly stringent standard or, alternatively, that its reliance met the reasonable reliance standard. The district court summarily affirmed; we REVERSE and REMAND for further factfinding. I. BACKGROUND In 1985, defendant-appellee, Edwin L. Vann, sought credit from plaintiff-appellant, City Bank & Trust Company (“City Bank”) for the opening of a cheese processing plant in Tennessee. Vann submitted a financial statement to City Bank, which sent a representative to visit Vann at his home in Florida to investigate the real estate holdings and other properties relied upon by Vann to support the extension of credit. Between the initiation of credit negotiations and the eventual closing of the loan, Vann’s financial condition deteriorated. City Bank did not request updated financial information from Vann prior to the closing of the loan, and Vann did not disclose these changes despite representations in the loan documents that no changes had occurred. Vann subsequently filed bankruptcy under Chapter 11. City Bank filed an adversary proceeding challenging the dischargeability of Vann’s debt to it. City Bank charged that Vann obtained the credit by false pretenses, false representations, or actual fraud under section 523(a)(2)(A), and that it reasonably relied on Vann’s financial statement, which was materially false under section 523(a)(2)(B). The bankruptcy court concluded that (1) although the bank had been “hoodwinked” by Vann, there was no actual fraud, (2) even if there were false pretenses or false representations under section 523(a)(2)(A), City Bank was required to show reasonable reliance on Vann’s representations and it failed to meet that standard; and (3) City Bank’s reliance on Vann’s materially false financial statement was unreasonable. Rl-1-90-297 (Trans, of Proceedings). Upon City Bank’s motion for further findings of fact and conclusions of law as to its section 523(a)(2)(A) claim, the bankruptcy court held" }, { "docid": "9980604", "title": "", "text": "John’s financial statement was materially false in both of the above respects. The statement grossly overstated his net worth and grossly understated his bank debt. This is true whether the statement is viewed on June 1, 1986, July 13, 1986, or August 13, 1986. These misrepresentations were fraudulent and produced a financial statement that falsely represented John’s overall financial condition. Moreover, a correct financial statement would have shown a pattern of rapidly escalating debt, highly relevant to a bank’s determination of a borrower’s credit worthiness. Second, the Bank reasonably relied on the financial statements. When evaluating a creditor’s reliance on financial statements, courts should be mindful of the danger of slipping into a review of the creditor’s business judgment instead of focusing on whether it was reasonable for the creditor to rely on the debtor’s misrepresentation. McMillan v. Firestone, 26 B.R. 706, 718 (Bankr.S.D.Fla.1982). Reasonable reliance comports with a bank’s normal business practice. A bank should not be required to exceed its own internal policies before it will be deemed to have reasonably relied upon the financial statement of a debtor. In re Esposito, 44 B.R. 817, 825 (Bankr.S.D.N.Y.1984); accord Mutschler, 45 B.R. at 493. When a creditor’s reliance is at issue under § 523(a)(2)(B) the court should examine the following: ‘[T]he creditor’s standard practices in evaluating loan applications; industry standards; and particular circumstances existing when the financial statement is presented ... [Reasonableness] should be viewed as a test of credibility. Reasonableness is not, with respect to the victim of an intentional tort, a framework of legal standards fashioned from an affirmative duty.’ Matter of Earls, 80 B.R. 978, 980 (W.D.Mo.1987), quoting In re Richards, 71 B.R. 1017, 1022 (Bankr.D.Minn.1987). An independent investigation is not necessary. Id. Additionally, the primary purpose of the reasonable reliance requirement of § 523(a)(2)(B) was to prevent unscrupulous creditors from inducing debtors to falsify financial statements for the purpose of later using them to object to the debtor’s discharge. In re Ophaug, 827 F.2d 340 at 343; In re Fosco, 14 B.R. 918 at 921-922 (Bankr.D.Conn.1981); H.R.Rep. No. 595, 95th Cong., 1st Sess. 130-131 (1977)" } ]

[ { "docid": "22769131", "title": "", "text": "every such restriction. 505 U. S., at 1017-1018. But as we explain, infra, at 339-341, these assumptions hold true in the context of a moratorium. The case involved “a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal Company from mining under their property in such way as to remove the supports and cause a subsidence of the surface and of their house.” Mahon, 260 U. S., at 412. Mahon sought to prevent Pennsylvania Coal from mining under his property by relying on a state statute, which prohibited any mining that could undermine the foundation of a home. The company challenged the statute as a taking of its interest in the coal without compensation. In Lucas, we explained: “Prior to Justice Holmes’s exposition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a ‘practical ouster of [the owner’s] possession,’ Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879) .... Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government’s power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits. 260 U. S., at 414-415. If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power, ‘the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappeared].’ Id., at 415. These considerations gave birth in that case to the oft-cited maxim that, ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’ Ibid.’’ 505 U. S., at 1014 (citation omitted). Justice Brandéis argued: “Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State" } ]

[ { "docid": "19629038", "title": "", "text": "party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922), the Court announced a \"general rule\" that \"if regulation goes too far it will be recognized as a taking.\" But we have since observed that, prior to Mahon, \"it was generally thought that the Takings Clause reached only a 'direct appropriation' of property, Legal Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287 (1871), or the functional equivalent of a 'practical ouster of [the owner's] possession,' Transportation Co. v. Chicago, 99 U.S. 635, 642, 25 L.Ed. 336 (1879).\" Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions)." }, { "docid": "19629037", "title": "", "text": "confine these considerations to the question whether the regulation constitutes a taking. As Alexander Hamilton explained, \"the security of Property\" is one of the \"great object[s] of government.\" 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1911). The Takings Clause was adopted to ensure such security by protecting property rights as they exist under state law. Deciding whether a regulation has gone so far as to constitute a \"taking\" of one of those property rights is, properly enough, a fact-intensive task that relies \"as much on the exercise of judgment as on the application of logic.\" MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 349, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986) (alterations and internal quotation marks omitted). But basing the definition of \"property\" on a judgment call, too, allows the government's interests to warp the private rights that the Takings Clause is supposed to secure. I respectfully dissent. Justice THOMAS, dissenting. I join THECHIEF JUSTICE's dissent because it correctly applies this Court's regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922), the Court announced a \"general rule\" that \"if regulation goes too far it will be recognized as a taking.\" But we have since observed that, prior to Mahon, \"it was generally thought that the Takings Clause reached only a 'direct appropriation' of property, Legal Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287 (1871), or the functional equivalent of a 'practical ouster of [the owner's] possession,' Transportation Co. v. Chicago, 99 U.S. 635, 642, 25 L.Ed. 336 (1879).\" Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment" }, { "docid": "1848071", "title": "", "text": "application. In response, the Corps provided plaintiffs with three development proposals “[i]n an effort to provide you with more specific guidance concerning what would have a better chance of being permitted.” On August 30 and September 26, 1996, the Corps informed plaintiffs that they must “demonstrate why the [three] proposals currently under consideration would not be practicable” before the Corps would consider alternative development proposals from plaintiffs. The Corps further stated that it would issue a decision shortly, after which plaintiffs would be responsible for applying for State Water Quality and Coastal Zone Consistency Certifications. Plaintiffs responded on September 13 and October 19, 1996, \"with reasons why they believed the three proposed plans were unfeasible. Notwithstanding, on November 4, 1996, the Corps issued a permit decision authorizing a 28-lot residential development, which was one of the three plans proposed by the Corps. II. Discussion The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” As recently explained by the Supreme Court, “[t]he aim of the Clause is to prevent the government ‘from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 2146, 141 L.Ed.2d 451 (1998) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). Long ago, Justice Holmes opined that, “while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). This oft-quoted language is the genesis of the so-called regulatory takings doctrine. The courts have recognized at least two categories of regulatory takings — permanent takings and temporary takings. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-16, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (permanent taking); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318, 107 S.Ct. 2378, 96 L.Ed.2d 250" }, { "docid": "1543626", "title": "", "text": "65 L.Ed.2d 106 (1980) applicable. Applying Agins, we conclude that plaintiffs have failed to provide evidence relevant to their claim, and we affirm the district court’s summary judgment in favor of the City. A. Government regulation of private property violates the Takings Clause if it fails to substantially advance legitimate state interests. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Agins, 447 U.S. at 260, 100 S.Ct. 2138. Governmental regulation categorically violates the Takings Clause if it results in the physical invasion of property, or if it denies the owner all economically viable use of his property. Lucas, 505 U.S. at 1015, 112 S.Ct. 2886. Generally in these cases, no matter how minute the physical invasion, and no matter how important the public purpose behind the governmental action, just compensation will be required. Id. at 1015-16, 112 S.Ct. 2886. By contrast, in non-categorical regulatory takings cases, the court must engage in an ad hoc, factual inquiry to determine whether the government regulation goes too far. Id. at 1015, 112 S.Ct. 2886; see also Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”). Although this inquiry may focus on several factors, the Court has repeatedly recognized two as “keenly relevant.” Id. at 1019 n. 8, 43 S.Ct. 158. First, is “the economic impact of the regulation on the claimant”; second, is “the extent to which the regulation has interfered with distinct investment-backed expectations.” Id. (citing Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)); see also Hodel v. Irving, 481 U.S. 704, 715, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987) (finding that Native Americans did not have reasonable investment-backed expectations in devise and descent of property); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 349, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986) (factors to" }, { "docid": "17779184", "title": "", "text": "are obtained for developing the parcel,” and, unlike Mr. Moynihan did not discount his figure to take into account the possibility that such permits might not be received. II. DISCUSSION The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” U.S. Const, amend. V. As recently explained by the Supreme Court, “[t]he aim of the Clause is to prevent the government ‘from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Eastern Enterprises v. Apfel, 524 U.S. 498, 522, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). Along these lines, Justice Holmes long ago opined that, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). This oft-quoted language is the genesis of the so-called regulatory takings doctrine, first invoked to challenge mining and zoning laws, but here invoked in the context of the Federal program for the management and protection of wetlands. Plaintiffs allege that the permit issued by the Corps under that program, which allows only partial development of the Property, so diminished the value of their property as to effectuate a permanent taking. A property owner may show that the government has effectuated a “categorical taking” by demonstrating that a regulation has denied the property owner of “all economically beneficial or productive use of land.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Such is not the case here. Even if a property owner is unable to demonstrate such a categorical taking, he or she may be able to prove that the government affected a compensable “partial taking.” Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1570 (Ped.Cir.1994), cert. denied, 513 U.S. 1109, 115 S.Ct. 898, 130 L.Ed.2d 783" }, { "docid": "8188008", "title": "", "text": "the contract between Amex and its customers. Amex also fails to show how New Jersey law pertaining to unclaimed property can be interpreted to require incorporation into Amex’s contract with its customer. Because Amex has not shown that Chapter 25 constitutes a substantial impairment on this contractual relationship, it did not succeed in showing a likelihood of success on its Contract Clause claim. C. Takings Clause The Takings Clause of the Fifth Amendment prohibits the federal government from taking private property for public use without providing just compensation. U.S. Const. Amend. V. The Takings Clause applies to state action through the Fourteenth Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980) (citing Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897) and Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 122, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). When a state directly appropriates private property, it is considered a per se taking, and the state has a duty to compensate the owner. Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). Where, as here, a party asserts a regulatory taking, there is no set formula. Rather, courts must en gage in a factual inquiry to determine whether a taking has been effected. New Jersey v. United States, 91 F.3d 463, 468 (3d Cir.1996) (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). To succeed on a takings claim, Amex must show that the State’s action affected a “legally cognizable property interest.” Prometheus Radio Project v. FCC, 373 F.3d 372, 428 (3d Cir.2004) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) and Webb’s, 449 U.S. at 160-61, 101 S.Ct. 446 (1980)). “Relevant considerations include ‘[t]he economic impact of the regulation on the claimant and ... the extent to which the regulation has interfered with distinct investment-backed expectations.’ ” New Jersey v. United" }, { "docid": "18256145", "title": "", "text": "public burdens which, in all fairness and justice, should be borne by the public as a whole.” Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 123, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). We have developed a two-part test for determining whether “fairness and justice” require compensation for burdens imposed by a particular governmental action. First, as a threshold matter, the court must determine whether the claimant has established a property interest for purposes of the Fifth Amendment. Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed.Cir.2004); see also Maritrans, 342 F.3d at 1351. That is because “only persons with a valid property interest at the time of the taking are entitled to compensation.” Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001). The protections of the Takings Clause apply to real property, see Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 2895, 120 L.Ed.2d 798 (1992), personal property, see Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 327, 62 L.Ed.2d 210 (1979), and intangible property, see Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04, 104 S.Ct. 2862, 2873, 81 L.Ed.2d 815 (1984). In this case, it is undisputed that the property interests Huntleigh alleges were taken are, for purposes of the Fifth Amendment, cognizable property interests. Second, “after having identified a valid property interest, the court must determine whether the government action at issue amounted to a compensable taking of that property interest.” Am. Pelagic, 379 F.3d at 1372; see also Maritrans, 342 F.3d at 1351. A compensable taking can occur not only through the government’s physical invasion or appropriation of private property, see Lucas, 505 U.S. at 1014-15, 112 S.Ct. 2886; Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868 (1982), but also by government regulations that unduly burden private property interests, see Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). II. A. Huntleigh argues that the Court of Federal Claims erred in holding that ATSA did not" }, { "docid": "3917139", "title": "", "text": "of draw, and (2) coal under occupied structures that M & J claims it had the right to subside without limitation or liability. We do not agree. The Fifth Amendment’s guarantee “nor shall private property be taken for public use, without just compensation” is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). However, property use may be regulated without a compensable taking occurring. See Pennsylvania Coal v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922) (“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”). Where to draw the line is not always an easy task, but the Supreme Court has stated that if regulation goes “too far” it will constitute a compensable taking. Id. at 415, 43 S.Ct. at 160. Whether the regulation of property entitling a property owner to compensation has occurred depends upon the particular circumstances of the case. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). To determine whether a governmental regulation of property has gone so far as to effect a taking, courts have engaged in an “essentially ad hoc, factual inquirfy considering such factors as the] economic impact of the regulation on the claimant!,] the extent to which the regulation has interfered with distinct investment-backed expectations^ and] the character of the governmental action.” Id.; Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815 (1984). In Lucas v. South Carolina Coasted Council, — U.S.-, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), the Supreme Court ex-plainéd that the Takings Clause does not require compensation when an owner is barred from putting land to a use that is proscribed by “ ‘existing rules or understandings that stem from an independent source" }, { "docid": "19628987", "title": "", "text": "10 percent. The Supreme Court of Wisconsin denied discretionary review. This Court granted certiorari, 577 U.S. ----, 136 S.Ct. 890, 193 L.Ed.2d 783 (2016). II A The Takings Clause of the Fifth Amendment provides that private property shall not \"be taken for public use, without just compensation.\" The Clause is made applicable to the States through the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). As this Court has recognized, the plain language of the Takings Clause \"requires the payment of compensation whenever the government acquires private property for a public purpose,\" see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002), but it does not address in specific terms the imposition of regulatory burdens on private property. Indeed, \"[p]rior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), it was generally thought that the Takings Clause reached only a direct appropriation of property, or the functional equivalent of a practical ouster of the owner's possession,\" like the permanent flooding of property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (citation, brackets, and internal quotation marks omitted); accord, Horne v. Department of Agriculture, 576 U.S. ----, ----, 135 S.Ct. 2419, 2427, 192 L.Ed.2d 388 (2015) ; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). Mahon, however, initiated this Court's regulatory takings jurisprudence, declaring that \"while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.\" 260 U.S., at 415, 43 S.Ct. 158. A regulation, then, can be so burdensome as to become a taking, yet the Mahon Court did not formulate more detailed guidance for determining when this limit is reached. In the near century since Mahon, the Court for the most part has refrained from elaborating this principle through definitive rules. This area of the law" }, { "docid": "19628988", "title": "", "text": "of property, or the functional equivalent of a practical ouster of the owner's possession,\" like the permanent flooding of property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (citation, brackets, and internal quotation marks omitted); accord, Horne v. Department of Agriculture, 576 U.S. ----, ----, 135 S.Ct. 2419, 2427, 192 L.Ed.2d 388 (2015) ; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). Mahon, however, initiated this Court's regulatory takings jurisprudence, declaring that \"while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.\" 260 U.S., at 415, 43 S.Ct. 158. A regulation, then, can be so burdensome as to become a taking, yet the Mahon Court did not formulate more detailed guidance for determining when this limit is reached. In the near century since Mahon, the Court for the most part has refrained from elaborating this principle through definitive rules. This area of the law has been characterized by \"ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.\" Tahoe-Sierra, supra, at 322, 122 S.Ct. 1465 (citation and internal quotation marks omitted). The Court has, however, stated two guidelines relevant here for determining when government regulation is so onerous that it constitutes a taking. First, \"with certain qualifications ... a regulation which 'denies all economically beneficial or productive use of land' will require compensation under the Takings Clause.\" Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (quoting Lucas, supra, at 1015, 112 S.Ct. 2886 ). Second, when a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking still may be found based on \"a complex of factors,\" including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Palazzolo, supra, at 617, 121 S.Ct. 2448 (citing Penn Central" }, { "docid": "19629018", "title": "", "text": "property disappears.\" Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Our regulatory takings decisions, then, have recognized that, \"while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.\" Ibid. This rule strikes a balance between property owners' rights and the government's authority to advance the common good. Owners can rest assured that they will be compensated for particularly onerous regulatory actions, while governments maintain the freedom to adjust the benefits and burdens of property ownership without incurring crippling costs from each alteration. Depending, of course, on how far is \"too far.\" We have said often enough that the answer to this question generally resists per se rules and rigid formulas. There are, however, a few fixed principles: The inquiry \"must be conducted with respect to specific property.\" Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (internal quotation marks omitted). And if a \"regulation denies all economically beneficial or productive use of land,\" the interference categorically amounts to a taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). For the vast array of regulations that lack such an extreme effect, a flexible approach is more fitting. The factors to consider are wide ranging, and include the economic impact of the regulation, the owner's investment-backed expectations, and the character of the government action. The ultimate question is whether the government's imposition on a property has forced the owner \"to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.\" Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (internal quotation marks omitted). Finally, if a taking has occurred, the remaining matter is tabulating the \"just compensation\" to which the property owner is entitled. \"[J]ust compensation normally is to be measured by the market value of the property at the time of the taking.\" Horne, 576 U.S., at" }, { "docid": "22398899", "title": "", "text": "and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960); see also Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893). The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property. See, e. g., United States v. Pewee Coal Co., 341 U. S. 114 (1951) (Government’s seizure and operation of a coal mine to prevent a national strike of coal miners effected a taking); United States v. General Motors Corp., 323 U. S. 373 (1945) (Government’s occupation of private warehouse effected a taking). Indeed, until the Court’s watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster of [the owner’s] possession.’” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992) (citations omitted and emphasis added; brackets in original); see also id., at 1028, n. 15 (“[E]arly constitutional theorists did not believe the Takings Clause embraced regulations of property at all”). Beginning with Mahon, however, the Court recognized that government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such “regulatory takings” may be compensable under the Fifth Amendment. In Justice Holmes’ storied but cryptic formulation, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” 260 U. S., at 415. The rub, of course, has been — and remains — how to discern how far is “too far.” In answering that question, we must remain cognizant that “government regulation — by definition — involves the adjustment of rights for the' public good,” Andrus v. Allard, 444 U. S. 51, 65 (1979), and that “Government hardly could go on if to some extent values incident to property could not.be diminished without paying for every such change in the general law,” Mahon, supra, at 413." }, { "docid": "1848072", "title": "", "text": "Clause is to prevent the government ‘from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 2146, 141 L.Ed.2d 451 (1998) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). Long ago, Justice Holmes opined that, “while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). This oft-quoted language is the genesis of the so-called regulatory takings doctrine. The courts have recognized at least two categories of regulatory takings — permanent takings and temporary takings. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-16, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (permanent taking); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) (temporary taking). Both forms of takings require compensation to be paid under the Fifth Amendment. Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); First English, 482 U.S. at 315-16, 107 S.Ct. 2378. Plaintiffs in this case seek compensation for both a permanent and temporary taking of their property. They argue that the Corps’ 1996 permit, which allows only partial development of the property, was a final determination of their broader permit request. Plaintiffs contend that, restricted by the Corps’ permit, the value of their property has been so diminished as to effectuate a permanent taking. Alternatively, they argue that the Corps effectuated a temporary taking of their property by precluding development of their property for more than nine years, while the Corps considered whether to issue a permit. Defendant has filed a motion for summary judgment, arguing that, as a matter of law, neither a permanent nor a temporary taking has occurred in this ease. Summary judgment is appropriate when there is no genuine dispute as" }, { "docid": "22398898", "title": "", "text": "advances” standard. Id., at 859-861. We granted certiorari, 543 U. S. 924 (2004), and now reverse. II A The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), provides that private property shall not “be taken for public use, without just compensation.” As its text makes plain, the Takings Clause “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 314 (1987). In other words, it “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id., at 315 (emphasis in original). While scholars have offered various justifications for this regime, we have emphasized its role in “bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960); see also Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893). The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property. See, e. g., United States v. Pewee Coal Co., 341 U. S. 114 (1951) (Government’s seizure and operation of a coal mine to prevent a national strike of coal miners effected a taking); United States v. General Motors Corp., 323 U. S. 373 (1945) (Government’s occupation of private warehouse effected a taking). Indeed, until the Court’s watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster of [the owner’s] possession.’” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992) (citations omitted and emphasis added; brackets in original); see also id., at 1028, n. 15" }, { "docid": "17730817", "title": "", "text": "(Fed.Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Whether the Court of Federal Claims properly dismissed a complaint for failure to state a claim under Rule 12(b)(4) is a question of law that we review independently and without deference. Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1170 (Fed.Cir.1995). The Fifth Amendment provides, in pertinent part, as follows: “nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. V, cl. 4. The language of this clause and the jurisprudence interpreting it evince a policy of prohibiting the “Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). While a taking often occurs as a result of a physical invasion or confiscation, the Supreme Court has long recognized that “if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Real property, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), tangible property, see Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979), and intangible property, see Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984), all may be the subject of takings claims. As the Court of Federal Claims recognized, this court has developed a two-part test to evaluate claims that a governmental regulation constitutes a taking of private property without just compensation. See M & J Coal, 47 F.3d at 1153-54; Karuk Tribe v. Ammon, 209 F.3d 1366, 1374 (Fed.Cir.2000). First, a court must evaluate whether the claimant has established a “property interest” for purposes of the Fifth Amendment. See M & J Coal, 47" }, { "docid": "6905777", "title": "", "text": "Takings Clause serves to curb such inefficiencies. See, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 281 (1985) (“[T]he Takings Clause is designed to control rent seeking and political faction. It is those practices, and only those practices, that it reaches.”). A Takings Clause construction that was dedicated without qualification to preventing such government externalization would require compensation whenever regulation reduced the value of anyone’s property, however slightly. Balanced against that goal is an array of considerations. Most obvious is the cost of calculating and administering compensation, which would tend to sink many a beneficent statute. “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1018, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). (The compensation cost itself would be only a weak countervailing factor, for most beneficent regulation would presumably generate gains large enough to pay the losers if identification and calculation were costless.) My goal here is not to pinpoint the appropriate balance between these competing considerations, much less to suggest that the correct reading is one under which all regulation materially adversely affecting a property’s value would be compensable. Rather, it is simply to note the ways in which modern interpretation of the Takings Clause, as exemplified in today’s decision, impairs its role as a disincentive to wasteful government activities. The majority applies an apparent presumption that contiguous parcels under common ownership should be treated as one parcel for purposes of the takings analysis. This presumption tends to reduce the likelihood that courts will order compensation. The larger the parcel, the greater the chance that the regulated land will retain an economically viable use. Where no such use remains, there is a “total taking” and the government can “resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests" }, { "docid": "19628986", "title": "", "text": "regulations on Lot E only. Instead, the court held the takings analysis \"properly focused\" on the regulations' effect \"on the Murrs' property as a whole\"-that is, Lots E and F together. App. to Pet. for Cert. A-12, ¶ 22. Using this framework, the Court of Appeals concluded the merger regulations did not effect a taking. In particular, the court explained that petitioners could not reasonably have expected to use the lots separately because they were \" 'charged with knowledge of the existing zoning laws' \" when they acquired the property. Ibid. (quoting Murr, supra, at 184, 796 N.W.2d, at 844 ). Thus, \"even if [petitioners] did intend to develop or sell Lot E separately, that expectation of separate treatment became unreasonable when they chose to acquire Lot E in 1995, after their having acquired Lot F in 1994.\" App. to Pet. for Cert. A-17, ¶ 30. The court also discounted the severity of the economic impact on petitioners' property, recognizing the Circuit Court's conclusion that the regulations diminished the property's combined value by less than 10 percent. The Supreme Court of Wisconsin denied discretionary review. This Court granted certiorari, 577 U.S. ----, 136 S.Ct. 890, 193 L.Ed.2d 783 (2016). II A The Takings Clause of the Fifth Amendment provides that private property shall not \"be taken for public use, without just compensation.\" The Clause is made applicable to the States through the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). As this Court has recognized, the plain language of the Takings Clause \"requires the payment of compensation whenever the government acquires private property for a public purpose,\" see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002), but it does not address in specific terms the imposition of regulatory burdens on private property. Indeed, \"[p]rior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), it was generally thought that the Takings Clause reached only a direct appropriation" }, { "docid": "8562950", "title": "", "text": "basis for holding Amendment No. 5 invalid as applied to these Plaintiffs. The restriction in Amendment No. 5 against the use of motor boats on Crooked Lake effects a taking of Plaintiffs’ private property without just compensation in violation of the Fifth Amendment of the United States Constitution. The Fifth Amendment guarantees that private property shall not “be taken for public use without just compensation.” U.S. Const, amend. V. If regulation of property goes too far it will be recognized as a taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-15, 112 S.Ct. 2886, 2892-93, 120 L.Ed.2d 798, 812 (1992) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922))! There is no set formula for determining how far is “too far.” Lucas, 505 U.S. at 1014-15, 112 S.Ct. at 2892-93, 120 L.Ed.2d at 812. There are, however, some guiding principles. For example, the Fifth Amendment is violated when land use regulation does not substantially advance legitimate state interest or denies an owner economically viable use of his land. Lucas, 505 U.S. at 1015-17, 112 S.Ct. at 2893-94, 120 L.Ed.2d at 813 (quoting Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980)). A regulation may also constitute a taking if it extinguishes a fundamental attribute- of ownership. Agins v. Tiburon, 447 U.S. 255, 262, 100 S.Ct. 2138, 2142, 65 L.Ed.2d 106 (1980) (citing Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 392-93, 62 L.Ed.2d 332 (1979)). “The determination that governmental action constitutes a taking is, in essence, a determination- that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest.” Agins, 447 U.S. at 260, 100 S.Ct. at 2141. As noted in Peterman v. State Department of Natural Resources, 446 Mich. 177, 521 N.W.2d 499 (1994), riparian rights are property and as such are “protected by the limits of the power of eminent domain.” Id. at 192, 521 N.W.2d 499. “Riparian rights involve property rights that, if" }, { "docid": "3559403", "title": "", "text": "271 F.3d 1090, 1096 (Fed.Cir.2001). In reviewing a final decision of the Court of Federal Claims after a trial, we review legal conclusions de novo, and we review factual findings under the “clearly erroneous” standard. Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1379 (Fed.Cir.2001). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). II. Fifth Amendment Takings The Fifth Amendment provides, in pertinent part, as follows: “nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. V, cl. 4. The language of this clause does not prohibit the government from taking private property altogether; rather, it prohibits the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Penn Cent., 438 U.S. at 123, 98 S.Ct. 2646 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). While a taking often occurs as a result of a physical invasion or confiscation, the Supreme Court has long recognized that “if regulation goes too far it will be recognized as a taking.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Real property, see Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), tangible property, see Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979), and intangible property, see Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984), all may be the subject of takings claims. The Federal Circuit has developed a two-part test to evaluate claims that a governmental action constitutes a taking of private property without just compensation. See M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed.Cir.1995). First," }, { "docid": "19629017", "title": "", "text": "governments, which might naturally look to put private property to work for the public at large. When government action interferes with property rights, the next question becomes whether that interference amounts to a \"taking.\" \"The paradigmatic taking ... is a direct government appropriation or physical invasion of private property.\" Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). These types of actions give rise to \"per se taking[s]\" because they are \"perhaps the most serious form[s] of invasion of an owner's property interests, depriving the owner of the rights to possess, use and dispose of the property.\" Horne v. Department of Agriculture, 576 U.S. ----, ----, 135 S.Ct. 2419, 2427, 192 L.Ed.2d 388 (2015) (internal quotation marks omitted). But not all takings are so direct: Governments can infringe private property interests for public use not only through appropriations, but through regulations as well. If compensation were required for one but not the other, \"the natural tendency of human nature\" would be to extend regulations \"until at last private property disappears.\" Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Our regulatory takings decisions, then, have recognized that, \"while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.\" Ibid. This rule strikes a balance between property owners' rights and the government's authority to advance the common good. Owners can rest assured that they will be compensated for particularly onerous regulatory actions, while governments maintain the freedom to adjust the benefits and burdens of property ownership without incurring crippling costs from each alteration. Depending, of course, on how far is \"too far.\" We have said often enough that the answer to this question generally resists per se rules and rigid formulas. There are, however, a few fixed principles: The inquiry \"must be conducted with respect to specific property.\" Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (internal quotation marks omitted). And if a \"regulation denies all economically beneficial" } ]

[ { "docid": "16411917", "title": "", "text": "to strike words such as “at least,” and “among other things” from various paragraphs of Count 1 and Count 2. Crown-Trygg argues that these words are surplusage and prejudice the defendant in as much as the words allow the jury to speculate as to the nature of the crime charged in the indictment. For instance, paragraph 14(a) of Count 1 provides: The aforesaid combination and conspiracy consisted of an agreement, understanding and concert of action among the defendants and co-conspirators, the substantial terms of which were: (a) To allocate to Brighton Building & Maintenance Co., Krug Excavating Company and Western Asphalt Paving Co. at least two specific F.A.I. projects let by the State of Illinois on July 29, 1975, .... (Emphasis supplied). This court must agree with defendant Crown-Trygg that the use of terms such as “at least” in the indictment in this case serves no useful purpose and allows the jury to draw the inference that the defendant is accused of crimes not charged in the indictment. United States v. Varner, 283 F.2d 900, 903 (7th Cir. 1960); United States v. Pope, 189 F.Supp. 12, 25-26 (S.D.N.Y. 1960). Cf. Marsh v. United States, 344 F.2d 317, 322 (5th Cir. 1965). While the Government is not foreclosed from offering any proof relevant to the charges, United States v. Pope, supra at 26, as stated previously, it may not use the indictment as a vehicle to persuade the jury that the crime alleged has great and hidden implications. Accordingly, Crown-Trygg’s motion to strike as surplusage the words delineated in footnote 13 is hereby granted. B. Paragraphs 7 through 11 of Count 1 Defendants have moved to strike paragraphs 7 through 11 of Count 1, and as incorporated in Counts 2 through 38, on the grounds that these paragraphs are not required in order to allege the crimes charged in each count and that these paragraphs contain references to various state laws which could prejudice a jury against defendants. In ruling on this motion, the court is guided by the principle that: A motion to strike surplusage from an indictment is addressed" } ]

[ { "docid": "710645", "title": "", "text": "230 (N.D.Ill.1977), aff’d, 598 F.2d 1101 (7th Cir.1979); see also United States v. Freeman, 619 F.2d 1112, 1118 (5th Cir.1980) (reference in indictment to particular events that “included, but were not limited to, the following” should have been treated as surplusage), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981). These cases are pursuasive with regard to the words “among other things” in paragraphs 18(a) and 18(e) of the indictment. This language does not add anything to the charges in the indictment and would lead the jury to draw improper inferences regarding other crimes not charged in the indictment. The words “among other things” are therefore to be stricken from paragraphs 18(a) and 18(e) of the indictment. By striking this language, the court in no way forecloses the government from presenting any proof relevant to the charges at trial. See United States v. Pope, 189 F.Supp. 12, 26 (S.D.N.Y.1960). Defendant also moves the court to strike the term “Executive” in Count One, paragraph one, because DeFabritus is only a vice-president of the corporation. The court finds nothing inherently prejudicial, inflammatory or misleading in the term “Executive,” as applied to the charges in the indictment and will therefore not strike this term from the indictment. Defendant also objects to the government’s repeated use of the term “now deceased” in referring to William Callahan. Mr. Callahan was murdered in 1981 and his death remains unsolved. Defendant contends that the repeated use of the term “now deceased” “is bound to suggest to the jury that there is something in his death which is relevant to the defendant’s guilt in this case.” Memorandum in Support of Motion at 28. The court does not agree. Defendant does not dispute the government’s right to refer once to the fact that Callahan is dead. Id. For clarity’s sake it is appropriate that his death be referred to whenever his name is mentioned in the indictment. Moreover, the government has stated its believe that defendant was in no way responsible for Callahan’s death and that it would not object to the court so instructing the" }, { "docid": "1258029", "title": "", "text": "as “among other things,” “including but not limited to,” and “at least.” The defendants object to their inclusion in the indictment because they insinuate unalleged facts unnecessary to the elements of the crimes charged, and they may open the door to attempts by the prosecution to enlarge the charges, and they may lead the jury to infer accusations of crimes beyond those actually charged. The defendants rely on the cases of United States v. Brighton Building & Maintenance Co., 435 F.Supp. 222, 230-31 (N.D.Ill.1977), and United States v. Pope, 189 F.Supp. 12, 25-26 (S.D.N.Y.1960). The court in Pope struck the words “among other things” from an indictment, while the court in Brighton Building struck the words “at least.” The government contends that in Pope and Brighton Building, the offending words appeared in the charging paragraphs of individual counts of the indictment. The government’s contention is incorrect. The court in Brighton Building struck such words throughout the indictment, and neither court drew any distinction based on the location of the offending words. Moreover, the Court is not convinced that such words are not prejudicial outside of the charging paragraphs. Regardless of their location in the indictment, they may encourage the jury to draw inferences that the defendants are believed to be involved in activities not charged in the indictment. Furthermore, they serve no useful purpose. Accordingly, the words “various,” “including but not limited to the following,” “among other things,” “and related matters,” “on a number of occasions,” “at least,” “other illegal and improper activities,” “and elsewhere,” and “besides the defendants” shall be stricken from the indictment as irrelevant and prejudicial. The defendants also move the Court to strike descriptive language that is irrelevant and prejudicial from the indictment. Within this category, the defendants include: (1) the inclusion of legal means in a list described as “illegal means;” (2) references to a confrontation between the Federal Bureau of Investigation and alleged members of the Church of Scientology in the United States Courthouse in Washington; D.C.; (3) the guilty plea and sentencing of the defendant Wolfe for his wrongful use of a governmental" }, { "docid": "710644", "title": "", "text": "will constitute part of the government’s proof at trial.” United States v. Esposito, 423 F.Supp. 908, 911 (S.D.N.Y.1976). The evidence regarding the secretive accumulation of cash would be proba tive of a scheme to avoid the payment of taxes and is thus properly included in the indictment. While there are words less prejudicial than “slush fund” that may be used to characterize the alleged accumulation of cash, the court does not have broad powers to amend an indictment by changing the wording of the indictment, Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). The words “slush fund,” therefore, will not be striken from the indictment. The defendant objects to the use of the words “among other things” and “at least” in the indictment. The words “among others” have been stricken from an indictment where they serve no useful purpose and allow the jury to draw the inference that the defendant is accused of crimes not charged in the indictment. United States v. Brighton Building & Maintenance Co., 435 F.Supp. 222, 230 (N.D.Ill.1977), aff’d, 598 F.2d 1101 (7th Cir.1979); see also United States v. Freeman, 619 F.2d 1112, 1118 (5th Cir.1980) (reference in indictment to particular events that “included, but were not limited to, the following” should have been treated as surplusage), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981). These cases are pursuasive with regard to the words “among other things” in paragraphs 18(a) and 18(e) of the indictment. This language does not add anything to the charges in the indictment and would lead the jury to draw improper inferences regarding other crimes not charged in the indictment. The words “among other things” are therefore to be stricken from paragraphs 18(a) and 18(e) of the indictment. By striking this language, the court in no way forecloses the government from presenting any proof relevant to the charges at trial. See United States v. Pope, 189 F.Supp. 12, 26 (S.D.N.Y.1960). Defendant also moves the court to strike the term “Executive” in Count One, paragraph one, because DeFabritus is only a vice-president of the" }, { "docid": "352648", "title": "", "text": "motion to dismiss Count 49 of the indictment is hereby denied in its entirety. SEVERANCE Defendant Friend moves for severance on the grounds of prejudicial joinder. While this Circuit has expressed concern with respect to the possibility of prejudice in multi-defendant trials (see United States v. Miley, 513 F.2d 1191, 1209 (2d Cir. 1974)), the Court determines that the defendant herein has failed “to come forward with facts demonstrating that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial altogether.” United States v. Crisona, 271 F.Supp. 150, 154 (S.D.N.Y.1967), aff’d, 416 F.2d 107 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970). Since the government represents that all defendants will be subject to substantially the same proof, the motion to sever is hereby denied. SURPLUSAGE Defendant Friend moves to strike certain phrases from the indictment, to wit: “among the means,” “among the false inducements,” and frequent references to Pro and Trident Consortium as “co-schemers.” The Court does not find that the words sought to be stricken as surplusage are immaterial, irrelevant, or apt to convey prejudicial or inadmissible material to the jury. See United States v. Dioguardi, 332 F.Supp. 7, 23 (S.D.N.Y.1971). It has been held that where as in the present case a phrase such as “among the means” appears in the “means” paragraph of the indictment, i. e., a paragraph that does not charge the gravamen of the offense, the phrase need not be stricken. See United States v. Mayo, 230 F.Supp. 85 (S.D.N.Y.1964), specifically distinguishing United States v. Pope, 189 F.Supp. 12, 25 (S.D.N.Y.1960). Further, “[i]f the allegation is of matters by which the government hopes to establish the charge [e. g., a scheme], then such allegations can scarcely be called ‘surplusage.’ ” United States v. DePalma, 461 F.Supp. 778, 797 (S.D.N.Y.1978). Accordingly, defendant’s motion to strike is hereby denied. BILL OF PARTICULARS Defendant Friend moves for an order directing the government to provide a bill of particulars as to the following six items. 6a. Granted to the extent the" }, { "docid": "18872151", "title": "", "text": "Webster’s New World Dictionary of the American Language, definition of “substance.” Unlike an accusation that a defendant acted in a certain way “among others” or acted through “various illegal and unlawful means” or did certain illegal acts “among others,” see, e. g., United States v. Mayo, supra; United States v. Hubbard, 474 F.Supp. 64, 80-81 (D.C.D.C. 1979); United States v. Pope, 189 F.Supp. 12, 25-26 (S.D.N.Y.1960), an accusation that a defendant acted “in substance” in a described way is specific with regard to the essential elements of the conduct of which the defendant is accused. In an appropriate case the defendant may seek explication of inclusive language contained in the means section of a charge or the section of a conspiracy charge describing overt acts through a motion for a bill of particulars. United States v. Hubbard, supra, at 80-81. The defendant suggests that if counts 1 through 4 are not dismissed, the Government be ordered to provide him with a bill of particulars. The function of a bill of particulars is to enable the defendant to prepare an adequate defense, and a bill is not required if the indictment itself includes sufficient detail or if the Government has provided the information called for in some other manner. 1 Wright Federal Practice and Procedure § 129. Each of counts 1 through 4 apprised the defendant of the specific time and place of his alleged misuse of the mails or wire communications; the Government has also opened its files to the defendant; and, finally, in light of the disposition of the defendant discovery motion which is made below, I am not persuaded that a bill of particulars is required in this case. The defendant also argues that paragraphs 6 and 7 of the indictment, which have previously been described, are duplicitous and describe two separate fraud schemes and consequently the jury may convict the defendant without unanimity as to which scheme he engaged in. He suggests that the Government be required to elect which fraud theory it is pursuing in each count or that the jury be given a special verdict" }, { "docid": "5365936", "title": "", "text": "78 S.Ct. 365, 2 L.Ed.2d 354 (1958). When a charging paragraph of an indictment, which presents the matter upon which the grand jury based its accusations against a defendant, contains surplusage that “adds nothing to the charges, gives the defendant no further information with respect to them, and creates the danger that the prosecutor at trial may impermissibly enlarge the charges contained in the Indictment returned by the grand jury,” the language must be stricken. DePalma, 461 F.Supp. at 798-99; cf. DeFabritus, 605 F.Supp. at 1547 (striking the words “among other things” from the indictment “where they serve no useful purpose and allow the jury to draw the inference that the defendant is accused of crimes not charged in the indictment”). But when a means paragraph, which refers to the matter of proof to sustain the charges, contains sur-plusage, a court should not strike the language. See DePalma, 461 F.Supp. at 799 (“Accordingly, the phrase ‘and other activities’ or ‘among the means’ when contained [in the means paragraph] can be equated to allegations of overt acts in a conspiracy charge where the Government is not required to set forth all the acts relied upon to effectuate the conspiracy.”). In this case, the words “by various means, including, among other things” are clearly in the means portion of the Indictment. Moreover, they do not infer that the defendant is accused of crimes not charged in the Indictment. In the alternative, the defendant moves to compel the Government “to set out in detail what, if anything, the additional ‘means’ are.” However, this request is “denied because the manner or means by which a crime is carried out constitutes evidentiary matter, not ultimate facts, which the government is not required to produce_” United States v. Boneparth, 52 F.R.D. 544, 545 (S.D.N.Y.1971); see also United States v. Cephas, 937 F.2d 816, 823 (2d Cir.1991) (“[T]he government need not particularize all of its evidence.”); United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir.1974) (“The government was not required to disclose its evidence in advance of trial”). The defendant has ample notice from the detailed" }, { "docid": "22796154", "title": "", "text": "double jeopardy should he be prosecuted a second time for the same offense.” United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir.1988) (quoting Bortnovsky, 820 F.2d at 574). While “it is a settled rule that a bill of particulars cannot save an invalid indictment,” Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), the bill’s purpose is to “advise the defendant of the specific acts of which he is accused,” United States v. Walsh, 194 F.3d 37, 47 (2d Cir.1999) (internal quotation marks omitted). Thus, a bill of particulars may contain facts not alleged in the indictment. Cf. United States v. Jaswal, 47 F.3d 539, 542-543 (2d Cir.1995) (indictment that did not allege year of commission of offense was not defective; defendants could have “demand[ed] a bill of particulars specifying the date of the offense they were charged with”); United States v. Bagaric, 706 F.2d 42, 61-62 (2d Cir.1983), overruled on other grounds by Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). We have examined the Superseding Indictment- and the Bill and are confident that the Bill merely particularizes the indictment by advising Defendants of the specific acts of which they are accused. Walsh, 194 F.3d at 47. The acts alleged in the Bill regard the “matter of proof to sustain” the charges in the indictment-including conspiracy to commit securities fraud, to make and cause to be made false statements in filings with the SEC, and to commit bank fraud; securities fraud; and bank fraud. United States v. Mayo, 230 F.Supp. 85, 86 (S.D.N.Y.1964) (Weinfeld, J.). The Bill does not impermissibly add additional charges. See United States v. Pope, 189 F.Supp. 12, 26 (S.D.N.Y.1960) (Weinfeld, J.). The Bill of Particulars did not constructively amend the Superseding Indictment. II. Admissibility of Evidence Defendants argue that the district court improperly admitted evidence of “bad acts” that predated the indictment period. This evidence, according to Defendants, was neither necessary to complete the story of the crime nor essential to provide background to the conspiracy. We review a" }, { "docid": "5365935", "title": "", "text": "as a witness at trial. The Government has not yet designated such agent, but will provide the agent’s name and report to the defendant by November 15, 1996. Accordingly, because the Government’s need for concealment of the names and addresses of its witnesses (with the exception of the revenue agent witness discussed above) outweighs' any need of the defendant for that information prior to trial, the defendant’s motion for disclosure is denied. II. The defendant also moves pursuant to Fed.R.Crim.P. 7(d) to strike the words “by various means, including, among other things” from the Indictment as prejudicial surplusage. “A motion to strike surplusage will be granted only where it is clear that the allegations are not relevant to the crime charged, and are inflammatory and prejudicial.” United States v. DePalma, 461 F.Supp. 778, 797 (S.D.N.Y.1978); see also United States v. Ianniello, 621 F.Supp. 1455, 1479 (S.D.N.Y.1985); United States v. DeFabritus, 605 F.Supp. 1538, 1546 (S.D.N.Y.1985); United States v. Klein, 124 F.Supp. 476, 479-80 (S.D.N.Y.1954), aff'd, 247 F.2d 908 (2d Cir.1957), cert. denied, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958). When a charging paragraph of an indictment, which presents the matter upon which the grand jury based its accusations against a defendant, contains surplusage that “adds nothing to the charges, gives the defendant no further information with respect to them, and creates the danger that the prosecutor at trial may impermissibly enlarge the charges contained in the Indictment returned by the grand jury,” the language must be stricken. DePalma, 461 F.Supp. at 798-99; cf. DeFabritus, 605 F.Supp. at 1547 (striking the words “among other things” from the indictment “where they serve no useful purpose and allow the jury to draw the inference that the defendant is accused of crimes not charged in the indictment”). But when a means paragraph, which refers to the matter of proof to sustain the charges, contains sur-plusage, a court should not strike the language. See DePalma, 461 F.Supp. at 799 (“Accordingly, the phrase ‘and other activities’ or ‘among the means’ when contained [in the means paragraph] can be equated to allegations of overt" }, { "docid": "12441557", "title": "", "text": "its inclusion in the count but by the court’s interpretation of it in its closing instruction. United States v. Caine, 441 F.2d 454, 456 (2d Cir. 1971) and United States v. Mayo, 230 F.Supp. 85 (S.D.N.Y.1964) are not to the contrary. In Caine the indictment charged that a particular specified advertisement was fraudulent that included 12 specific false advertising claims “among others.” Obviously the others referred to other false claims in the advertisement specified in the indictment. No further factual allegation was necessary and the indictment was upheld, partially on the ground that such evidence was legally admissible “for at least some purposes.” 441 F.2d at 456-57. The lack of relevance of Caine to this case is obvious. As for Mayo, the decision held that an allegation “among others” to be proper because in the context of that indictment it did not constitute an impermissible delegation of authority to the prosecutor which enabled him to enlarge the grand jury accusation. 230 F.Supp. at 86. The phrase there was included in a paragraph which went “to the matter of proof to sustain the charges”; i.e., to evidence. Here, the majority seeks to use the phrase “by other means,” not to support the introduction of “matter of proof to sustain the charges,” as in Mayo, but as a wedge to enlarge the Grand Jury charges to include a different factual offense than the ones alleged in the indictment. In any event, no person contends that the phrase is invalid, but only that it should be given the meaning the Grand Jury obviously intended. The Grand Jury never intended to include defrauding the government by delaying the investigation in Count 2. Had it so intended the very competent prosecutors were more than sufficiently knowledgeable to accomplish that result. XV. THE CONSPIRACY ARGUMENT My colleagues also make the weird contention that the instruction as to Count 2 was unobjectionable because the evidence was admissible under Count 1. That is an unbelievable argument — to assert that defendants are not prejudiced by convictions on two counts on the basis of evidence that is admissible only" }, { "docid": "23286324", "title": "", "text": "605 F.Supp. 1565 (S.D.N.Y.1985), rev’d on other grounds, 784 F.2d 153 (2d Cir.1986); United States v. Cafaro, 480 F.Supp. 511 (S.D.N.Y.1979). A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused. United States v. Leonelli, 428 F.Supp. 880 (S.D.N.Y.1977); United States v. Goldman, 439 F.Supp. 337 (S.D.N.Y.1977); United States v. Ramirez, 602 F.Supp. 783 (S.D.N.Y.1985). Thus, courts have refused to treat a bill of particulars as a general investigative tool for the defense, or as a device to compel disclosure of the Government’s evidence or its legal theory prior to trial. See, e.g., United States v. Salazar, 485 F.2d 1272 (2d Cir.1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974); United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir.1974); United States v. Shoher, 555 F.Supp. 346, 350 (S.D.N.Y. 1983); United States v. Abrams, 539 F.Supp. 378 (S.D.N.Y.1982). The granting of a bill of particulars rests within the sound discretion of the district court. United States v. Panza, 750 F.2d 1141 (2d Cir.1984); United States v. Cohen, 518 F.2d 727, 734 (2d Cir.1975), 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. Massino, 605 F.Supp. at 1582. Such discretion, however, must be informed by considerations of whether the requested particularization is necessary to defendant’s preparation for trial and avoidance of unfair surprise at trial. United States v. DeFabritus, 605 F.Supp. 1538, 1547 (S.D.N.Y.1985); United States v. Payden, 613 F.Supp. 800, 816 (S.D.N.Y.), aff'd, 768 F.2d 487 (2d Cir. 1985). That the requested information would be useful to the defendant is not enough; if the defendant has been given adequate notice of the charges against him, the Government need not be required to disclose additional details about its case. United States v. Payden, 613 F.Supp. at 816; United States v. DeFabritus, 605 F.Supp. at 1547; United States v. Ramirez, 602 F.Supp. at 793. As a general rule, the defendant does not “need”" }, { "docid": "352649", "title": "", "text": "find that the words sought to be stricken as surplusage are immaterial, irrelevant, or apt to convey prejudicial or inadmissible material to the jury. See United States v. Dioguardi, 332 F.Supp. 7, 23 (S.D.N.Y.1971). It has been held that where as in the present case a phrase such as “among the means” appears in the “means” paragraph of the indictment, i. e., a paragraph that does not charge the gravamen of the offense, the phrase need not be stricken. See United States v. Mayo, 230 F.Supp. 85 (S.D.N.Y.1964), specifically distinguishing United States v. Pope, 189 F.Supp. 12, 25 (S.D.N.Y.1960). Further, “[i]f the allegation is of matters by which the government hopes to establish the charge [e. g., a scheme], then such allegations can scarcely be called ‘surplusage.’ ” United States v. DePalma, 461 F.Supp. 778, 797 (S.D.N.Y.1978). Accordingly, defendant’s motion to strike is hereby denied. BILL OF PARTICULARS Defendant Friend moves for an order directing the government to provide a bill of particulars as to the following six items. 6a. Granted to the extent the government is directed to furnish the names of those co-schemers known to them and whom they will claim participated in the alleged scheme with defendant Friend. Cf. United States v. King, 49 F.R.D. 51, 53 (S.D.N.Y.1970); United States v. Rosenstein, 303 F.Supp. 210, 213 (S.D.N.Y.1969) (both cases required the furnishing of names of co-conspirators). The remainder of the request is denied as seeking the government’s evidence in advance of trial. See United States v. Lebron, 222 F.2d 531 (2d Cir.), cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955). 6b. Denied. The Court finds that the names of those persons whom the government will claim devised the scheme with defendant Friend will be adequately revealed through the granting of 6a, supra, and that more particularization will unduly restrict the government in presenting its proof at trial. See United States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963). 11a. Denied. The request for the names of alleged victims who complained to Friend seeks the identity of prospective government witnesses. See United States" }, { "docid": "18872149", "title": "", "text": "expressions, implied allegations, argumentative statements, and uncertainty due to generalizations in language” contained in an indictment. The purpose of the definiteness requirement is to apprise the defendant of the charges against him to enable him to prepare a defense and to enable him to plead any judgment as a bar to future prosecution for the same offense. United States v. Pope, 189 F.Supp. 12, 17 (S.D.N.Y. 1960); United States v. Haldeman, 559 F.2d 31, 126 (D.C. Cir. 1976). As in a conspiracy charge, where the Government need not set forth all of the overt acts allegedly committed in furtherance of the conspiracy, where a scheme to defraud is charged the indictment need not set forth all of the overt acts committed in furtherance of the scheme. United States v. DePalma, 461 F.Supp. 778, 798 (S.D.N.Y.1978) (scheme to defraud creditors in a bankruptcy proceeding). See also United States v. Haldeman, supra, at 126 (charge of obstruction of justice); United States v. Mayo, 230 F.Supp. 85 (S.D.N.Y. 1964) (words “among others” not stricken where they were included in the means paragraph of the indictment describing the proof to be offered at trial, as opposed to the paragraph setting forth the gravamen of the charge). Indeed, as the Court in Haldeman pointed out, inclusive language included in the means paragraph of an indictment broadens the scope of the acts to which jeopardy attaches and thus provides the defendant with expanded protection. 559 F.2d at 126. The defendant complains that the language “in substance” may mean that the grand jurors who voted for his indictment may not have agreed on the nature of the scheme to defraud which the defendant alleged engaged in or that they may have voted the indictment on the basis of some scheme other than what is alleged. Where a scheme is described as being “in substance” composed of elements (a)-(e), however, the meaning of the phrase “in substance” is that elements (a)-(e) constitute the essence of the scheme, not that the essence may differ in material respects from what is alleged. See the American College Dictionary, definition of “substance”;" }, { "docid": "12441247", "title": "", "text": "alleged in Count 2. See Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Jackson v. United States, 123 U.S.App.D.C. 276, 359 F.2d 260, cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966). Also, as in Caine, the possibility that the grand jury either rejected or did not consider the charges in question is negligible. In United States v. Mayo, 230 F.Supp. 85 (S.D. N.Y.1964), a case cited with approval in Caine, Judge Weinfeld denied a motion to dismiss the second count of an indictment and rejected the argument that inclusion in the means paragraph of the phrase “among others” invalidated the indictment. Id. at 86. The court noted that, because the phrase was included in the means paragraph — much as “by other means” is included in the allegation of means in the present indictment — it went only to the matter of proof to sustain the charges. Judge Weinfeld expressly accepted the prosecution’s position that the words “among others” were “to be equated to allegations of overt acts in a conspiracy charge where the government is not required to set forth all the acts relied upon to effectuate the conspiracy.” Id. at 86. Likewise, the reference to “by other means” in the indictment in question here goes only to the matter of proof and does not constitute a basis for asserting that the notice provided in Count 2 is constitutionally defective. Haldeman claims, however, that, apart from the issue of sufficiency of notice, the indictment is defective in not performing the second function required of a valid indictment, that of protecting the defendant from the possibility of subsequent prosecution for the same offense. But, in truth, the specific phrase of the indictment about which Haldeman objects increases rather than diminishes the appellants’ protection against double jeopardy. By alleging that the obstruction of justice with which the defendants were charged was carried out “by other means” in addition to those specified, the indictment effectively broadens the scope of the acts to which jeopardy attaches and correspondingly reduces the opportunity for" }, { "docid": "18872148", "title": "", "text": "some that he committed the other. Paragraph 6 describes a course of conduct wherein the defendant allegedly had customers write personal checks to him and converted checks written to Standard Oil to his own use, and then mailed an adjustment memo to Amoco Oil falsely reflecting a product return. Paragraph 7 describes a course of conduct wherein the defendant allegedly failed to mail scale tickets, reflecting sales, to Amoco for sales in which he diverted payments, and then induced other customers to prepay on sales and mailed false scale tickets to Amoco reflecting sales in the amount of the prepayments so that Amoco would reduce its inventory accounting. Defendant argues that because counts 1 through 4 of the indictment allege that his scheme was “in substance” as described, the counts are defective under Rule 7(c)(1) of the Federal Rules of Criminal Procedure, which requires that the indictment contain a definite written statement of the facts constituting the offense charged. See, e. g., United States v. Williams, 203 F.2d 572, 574 (5th Cir. 1953), condemning “[ijndirect expressions, implied allegations, argumentative statements, and uncertainty due to generalizations in language” contained in an indictment. The purpose of the definiteness requirement is to apprise the defendant of the charges against him to enable him to prepare a defense and to enable him to plead any judgment as a bar to future prosecution for the same offense. United States v. Pope, 189 F.Supp. 12, 17 (S.D.N.Y. 1960); United States v. Haldeman, 559 F.2d 31, 126 (D.C. Cir. 1976). As in a conspiracy charge, where the Government need not set forth all of the overt acts allegedly committed in furtherance of the conspiracy, where a scheme to defraud is charged the indictment need not set forth all of the overt acts committed in furtherance of the scheme. United States v. DePalma, 461 F.Supp. 778, 798 (S.D.N.Y.1978) (scheme to defraud creditors in a bankruptcy proceeding). See also United States v. Haldeman, supra, at 126 (charge of obstruction of justice); United States v. Mayo, 230 F.Supp. 85 (S.D.N.Y. 1964) (words “among others” not stricken where they were included" }, { "docid": "16223263", "title": "", "text": "stricken from paragraph 11 of Count I. The determinative question here is whether these two phrases are contained in the “means” paragraph or the “charging” paragraph of the Indictment. A charging paragraph in the Indictment sets forth the gravamen of the offense as charged by the grand jury. United States v. Mayo, 230 F.Supp. 85, 86 (S.D.N.Y.1964). As such, a charging paragraph must delineate the matter upon which the grand jury based its accusations against the defendants. United States v. Pope, 189 F.Supp. 12, 25 (S.D.N.Y.1960). Consequently, a broad allegation such as “and other activities” when contained therein adds nothing to the charges, gives the defendant no further information with respect to them, and creates the danger that the prosecutor at trial may impermissibly enlarge the charges contained in the Indictment returned by the grand jury. United States v. Pope, supra, 189 F.Supp. at 25-26. The means paragraph, however, goes to the matter of proof to sustain the charges. United States v. Mayo, supra. Accordingly, the phrase “and other activities” or “among the means” when contained therein can be equated to allegations of overt acts in a conspiracy charge where the Government is not required to set forth all the acts relied upon to effectuate the conspiracy. United States v. Mayo, supra. In the instant case, paragraph 6 is the means paragraph that introduces the RICO charge. Consequently, defendant’s motion to strike the phrase “among the means” is denied. The eleventh paragraph, however, charges the defendants with having caused the bankruptcy of the Theatre by skimming its proceeds and receipts. Thus paragraph 11 goes to the gravamen of the offense of bankruptcy fraud as charged in the Indictment. See 18 U.S.C. § 152 (1970). Consequently, the phrase “and other activities” must be stricken and to that extent defendant’s motion is granted. See United States v. Pope, supra, 189 F.Supp. at 25-26. Defendant DePalma seeks to have this court expunge any reference to an unindicted co-conspirator in Counts I and XIII of the Indictment. Although this court has the power to expunge unauthorized grand jury activity, see Branzburg v. Hayes, 408" }, { "docid": "18872150", "title": "", "text": "in the means paragraph of the indictment describing the proof to be offered at trial, as opposed to the paragraph setting forth the gravamen of the charge). Indeed, as the Court in Haldeman pointed out, inclusive language included in the means paragraph of an indictment broadens the scope of the acts to which jeopardy attaches and thus provides the defendant with expanded protection. 559 F.2d at 126. The defendant complains that the language “in substance” may mean that the grand jurors who voted for his indictment may not have agreed on the nature of the scheme to defraud which the defendant alleged engaged in or that they may have voted the indictment on the basis of some scheme other than what is alleged. Where a scheme is described as being “in substance” composed of elements (a)-(e), however, the meaning of the phrase “in substance” is that elements (a)-(e) constitute the essence of the scheme, not that the essence may differ in material respects from what is alleged. See the American College Dictionary, definition of “substance”; Webster’s New World Dictionary of the American Language, definition of “substance.” Unlike an accusation that a defendant acted in a certain way “among others” or acted through “various illegal and unlawful means” or did certain illegal acts “among others,” see, e. g., United States v. Mayo, supra; United States v. Hubbard, 474 F.Supp. 64, 80-81 (D.C.D.C. 1979); United States v. Pope, 189 F.Supp. 12, 25-26 (S.D.N.Y.1960), an accusation that a defendant acted “in substance” in a described way is specific with regard to the essential elements of the conduct of which the defendant is accused. In an appropriate case the defendant may seek explication of inclusive language contained in the means section of a charge or the section of a conspiracy charge describing overt acts through a motion for a bill of particulars. United States v. Hubbard, supra, at 80-81. The defendant suggests that if counts 1 through 4 are not dismissed, the Government be ordered to provide him with a bill of particulars. The function of a bill of particulars is to enable the" }, { "docid": "12441246", "title": "", "text": "it noted that the introduction of the evidence in question did not constitute surprise, much less prejudicial surprise. Id. at 457. Second, the court emphasized the unlikelihood that the defendants had been convicted of charges either rejected or not considered by' the grand jury. It stated: The grand jury’s failure specifically to mention fraud with respect to refunds was most likely due to the belief that further spelling out of defendants’ fraudulent scheme was redundant. Given the substantial evidence mustered on the point at trial, it is particularly unlikely that the grand jury consciously rejected such a charge. Id. Each of these factors is clearly operative in the present case. That the evidence in- traduced under Count 2 did not surprise or prejudice the defendants is beyond question. All of the evidence about which Haldeman complains was admissible under Count 1 (see Part XI-C-1 supra), and he does not even claim on appeal that appellants were surprised by the trial court’s refusal to instruct the jury not to consider such evidence as regards the charges alleged in Count 2. See Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Jackson v. United States, 123 U.S.App.D.C. 276, 359 F.2d 260, cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966). Also, as in Caine, the possibility that the grand jury either rejected or did not consider the charges in question is negligible. In United States v. Mayo, 230 F.Supp. 85 (S.D. N.Y.1964), a case cited with approval in Caine, Judge Weinfeld denied a motion to dismiss the second count of an indictment and rejected the argument that inclusion in the means paragraph of the phrase “among others” invalidated the indictment. Id. at 86. The court noted that, because the phrase was included in the means paragraph — much as “by other means” is included in the allegation of means in the present indictment — it went only to the matter of proof to sustain the charges. Judge Weinfeld expressly accepted the prosecution’s position that the words “among others” were “to be equated to" }, { "docid": "23286325", "title": "", "text": "sound discretion of the district court. United States v. Panza, 750 F.2d 1141 (2d Cir.1984); United States v. Cohen, 518 F.2d 727, 734 (2d Cir.1975), 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. Massino, 605 F.Supp. at 1582. Such discretion, however, must be informed by considerations of whether the requested particularization is necessary to defendant’s preparation for trial and avoidance of unfair surprise at trial. United States v. DeFabritus, 605 F.Supp. 1538, 1547 (S.D.N.Y.1985); United States v. Payden, 613 F.Supp. 800, 816 (S.D.N.Y.), aff'd, 768 F.2d 487 (2d Cir. 1985). That the requested information would be useful to the defendant is not enough; if the defendant has been given adequate notice of the charges against him, the Government need not be required to disclose additional details about its case. United States v. Payden, 613 F.Supp. at 816; United States v. DeFabritus, 605 F.Supp. at 1547; United States v. Ramirez, 602 F.Supp. at 793. As a general rule, the defendant does not “need” detailed evidence about the conspiracy in order to prepare for trial properly. It is well settled that defendants need not know the means by which it is claimed they performed acts in furtherance of the conspiracy nor the evidence which the Government intends to adduce to prove their criminal acts. See United States v. Carroll, 510 F.2d 507, 509 (2d Cir.1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2633, 49 L.Ed.2d 378 (1976) (no general requirement that government disclose in a bill of particulars all the overt acts it will prove in establishing a conspiracy charge); United States v. Persico, 621 F.Supp. at 868; United States v. Politi, 334 F.Supp. 1318, 1321 (S.D.N.Y.1971), aff'd without op. 516 F.2d 897 (2d Cir.), cert. denied, 423 U.S. 801, 96 S.Ct. 8, 46 L.Ed.2d 244 (1975). Details as to how and when the conspiracy was formed, or when each participant entered it, need not be revealed before trial. United States v. Persico, 621 F.Supp. at 868; United States v. Cafaro, 480 F.Supp. at 518; United States v. Wolfson," }, { "docid": "1258028", "title": "", "text": "noted that it is not the Court’s intention to strictly limit the government’s proof at trial, and if the government is unable to respond in precise terms at this time because it is uncertain as to the facts, the government should respond as precisely as it is able. See United States v. Fine, 413 F.Supp. 740, 746 (W.D.Wis. 1976); United States v. Ahmad, 53 F.R.D. 194, 200 (M.D.Pa.1971). X. INSINUATIONS OF UNALLEGED FACTS, IRRELEVANT DESCRIPTIVE RECITALS, INFLAMMATORY LANGUAGE, AND NARRATIVE DECLARATIONS OF PAST FACT ARE STRICKEN FROM THE INDICTMENT AS SURPLUSAGE. The defendants have moved the Court to strike from the indictment sixty-nine (69) items of prejudicial surplusage, in four categories: (1) insinuations of unalleged facts; (2) irrelevant descriptive recitals; (3) inflammatory language; and (4) narrative declarations of past facts not evidentially admissible. This motion is made pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure which empowers the Court to “strike surplusage from the indictment.” Under the defendants’ category of insinuations of unalleged facts are phrases which occur throughout the indictment such as “among other things,” “including but not limited to,” and “at least.” The defendants object to their inclusion in the indictment because they insinuate unalleged facts unnecessary to the elements of the crimes charged, and they may open the door to attempts by the prosecution to enlarge the charges, and they may lead the jury to infer accusations of crimes beyond those actually charged. The defendants rely on the cases of United States v. Brighton Building & Maintenance Co., 435 F.Supp. 222, 230-31 (N.D.Ill.1977), and United States v. Pope, 189 F.Supp. 12, 25-26 (S.D.N.Y.1960). The court in Pope struck the words “among other things” from an indictment, while the court in Brighton Building struck the words “at least.” The government contends that in Pope and Brighton Building, the offending words appeared in the charging paragraphs of individual counts of the indictment. The government’s contention is incorrect. The court in Brighton Building struck such words throughout the indictment, and neither court drew any distinction based on the location of the offending words. Moreover, the Court is" }, { "docid": "16223262", "title": "", "text": "motive, intent, plan, opportunity, preparation, or knowledge of the defendants in scheming to defraud the creditors of the Theatre once that Theatre was involved in the Chapter XI proceeding. See Fed.R.Evid. 404(b). Paragraphs 4, 10, 11 and 12 are incorporated by reference in Count XIII of the Indictment, charging the defendants with conspiring to commit bankruptcy fraud. Here too,, the allegations of skimming and looting are both admissible and relevant in that they may be used to prove the nature and objectives of the conspiracy. See United States v. Morton, 483 F.2d 573, 576 (8th Cir. 1973). The allegations that the defendants skimmed and looted the proceeds of the Theatre can thus be viewed as an element of the Government’s proof at trial. The relevance of the aforementioned allegations having thus been established, the defendants’ motions to strike the terms “skimming” and “looting” are denied. In addition to seeking to strike any reference to “skimming” and “looting”, defendant Weisman seeks to have the words “Among the means” stricken from paragraph 6, and “and other activities” stricken from paragraph 11 of Count I. The determinative question here is whether these two phrases are contained in the “means” paragraph or the “charging” paragraph of the Indictment. A charging paragraph in the Indictment sets forth the gravamen of the offense as charged by the grand jury. United States v. Mayo, 230 F.Supp. 85, 86 (S.D.N.Y.1964). As such, a charging paragraph must delineate the matter upon which the grand jury based its accusations against the defendants. United States v. Pope, 189 F.Supp. 12, 25 (S.D.N.Y.1960). Consequently, a broad allegation such as “and other activities” when contained therein adds nothing to the charges, gives the defendant no further information with respect to them, and creates the danger that the prosecutor at trial may impermissibly enlarge the charges contained in the Indictment returned by the grand jury. United States v. Pope, supra, 189 F.Supp. at 25-26. The means paragraph, however, goes to the matter of proof to sustain the charges. United States v. Mayo, supra. Accordingly, the phrase “and other activities” or “among the means” when" } ]

[ { "docid": "22798150", "title": "", "text": ". . a limited constitution . . . [is] one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Federalist Paper No. 78. II. We hold that § 304 falls precisely within the category of congressional actions which the Constitution barred by providing that “No Bill of Attainder or ex post facto Law shall be passed.” In Cummings v. Missouri, 4 Wall. 277, 323, this Court said, “A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.” The Cummings decision involved a provision of the Missouri Reconstruction Constitution which required persons to take an Oath of Loyalty as a prerequisite to practicing a profession. Cummings, a Catholic Priest, was convicted for teaching and preaching as a minister without taking the oath. The oath required an applicant to affirm that he had never given aid or comfort to persons engaged in hostility to the United States and had never “been a member of, or connected with, any order, society, or organization, inimical to the government of the United States . . .” In an illuminating opinion which gave the historical background of the constitutional prohibition against bills of attainder, this Court invalidated the Missouri constitutional provision both because it constituted a bill of attainder and because it had an ex post facto operation. On the same day the Cummings case was decided, the Court, in Ex parte Garland, 4 Wall. 333, also held invalid on the same grounds an Act of" } ]

[ { "docid": "2666", "title": "", "text": "attainder ought to extend to legislation subjecting specified persons to penalties short of death—what the framers called “bills of pains and penalties.” Id. at 138, 3 L.Ed. 162; United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 1714, 14 L.Ed.2d 484 (1965). Later in the nineteenth century the Supreme Court confirmed that the legislative punishments foreclosed by the Bill of Attainder Clause include bills of pains and penalties. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 320, 323, 18 L.Ed. 356 (1866). Moreover, the Court has recognized that not all bills of attainder expressly name their targets; some simply describe them. Brown, 381 U.S. at 442, 85 S.Ct. at 1711-12. In sum, the Court has developed a potentially sweeping definition of forbidden attainders, holding that “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial áre bills of attainder prohibited by the Constitution.” United States v. Lovett, 328, U.S. 303, 315-16, 106 Ct.Cl. 856, 1079, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). The result is a prohibition triggered when a legislative act meets two tests—first, that it apply with specificity, and second, that it impose punishment. Even classic attainders seem not only to have specified individuals but also classes-defined as the confederates of a named traitor, as in the case of the attainder against the Earl of Kildare and his associates during the reign of Henry VIII. See Cummings, 71 U.S. at 323-24, 18 L.ED. 356. But the Supreme Court watered down the specificity requirement a bit more when it invalidated two post-Civil War enactments targeting all persons who could not truthfully swear that they had been loyal to the Union during the war. See Cummings; Ex parte Garland, 71 U.S. (4 Wall.) 333,18 L.Ed. 366 (1866). And in Lovett it said generally that specificity is shown if the law applies to “easily ascertain able members of a group.” 328 U.S. at 315, 66 S.Ct. at 1079. Since virtually all legislation operates by" }, { "docid": "18733021", "title": "", "text": "the effect that Linnas’ deportation to the Soviet Union would not violate the nonrecognition policy, Immigration Judge Cohen held that Linnas should be deported to the Soviet Union under either category (4) or (7). Linnas once again appealed to the BIA, which, in a decision dated October 16, 1985, affirmed the immigration judge’s decision based on § 243(a)(7). Petitioner now seeks review of the BIA’s decision on two grounds. First, Linnas contends that sections 241(a)(19), 243(h) and 244(e) of the INA, commonly referred to as the Holtzman amendment, constitute a bill of attainder. Second, Linnas contends that deportation to the Soviet Union would constitute a disguised extradition in violation of his rights to equal protection and due process. DISCUSSION I. Bill of Attainder Article I, section 9 of the United States Constitution provides in unequivocal terms that “[n]o Bill of Attainder or ex post facto Law shall be passed.” The wisdom of that constitutional command has been held in universally high esteem throughout the history of American jurisprudence. The issue now before this court is whether the legislation in question constitutes a bill of attainder. A bill of attainder is defined as “a legislative act which inflicts punishment without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356 (1866)). Such bills are condemned in the Constitution largely because they represent a legislative encroachment on powers more properly exercised by the judiciary. A bill of attainder, “assumes, in the language of the textbooks, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial.” Cummings v. Missouri, 71 U.S. (4 Wall.) at 323. Historically, bills of attainder carried a death penalty while bills of pains and penalties carried lesser punishments. The bill of attainder clause of the Constitution, however, has been consistently construed to apply to bills of pains and penalties as well as bills carrying a death penalty. See, e.g., United States v. Brown, 381 U.S. 437, 441, 85" }, { "docid": "21042663", "title": "", "text": "Nixon v. Administrator of General Services, 433 U.S. 425, 469, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); United States v. Lovett, 328 U.S. 303, 316, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). Thus, The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment. United States v. Brown, 381 U.S. 437, 448, 85 S.Ct. 1707, 1714, 14 L.Ed.2d 484 (1965), quoting Cummings v. Missouri, 71 U.S. 277, 4 Wall. 277, 320, 18 L.Ed. 356 (1867). Ordinance 535 falls squarely within these definitions of a bill of attainder. That legislation clearly names an individual “in such a way as to inflict punishment on [him] without a judicial trial,” United States v. Lovett, supra, 328 U.S. at 315, 66 S.Ct. at 1079, by requiring Crain to forfeit his job. We conclude, therefore, that the district court was correct in declaring Ordinance 535 unconstitutional. Ordinance 534, while facially constitutional, factually constitutes improper action taken by the council in an effort to make Crain forfeit his position since, as a practical matter, its intent was to punish him if he accepted the rights and obligations of his elective position. Because Ordinance 534 is prospective in application, and salaries of elective officials may be specified by city officials pursuant to Ark.Stat. § 19-1025.1, the district court decided that the ordinance was not penal. But legislation which inflicts a deprivation on named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, as in this case, discouraging future conduct. See United States v. Brown, supra, 381 U.S. at 458, 85 S.Ct. 1707. The city contends that such considerations as competing demands for city funds and the necessity of employing additional" }, { "docid": "2237907", "title": "", "text": "From this final judgment the United States, the FCC, and the defendant-intervenors timely appeal. III This court reviews the constitutionality of a federal statute de novo. United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir.1997). IV On appeal, SBC and the other appellees urge all of the arguments offered below as potential bases for affirming some or all of the decision of the district court. We consider each contention in turn, beginning with SBC’s primary and most substantial complaint that the Special Provisions constitute a bill of attainder. A Article I, sec. 9, cl. 3 of the. United States Constitution provides that “[n]o Bill of Attainder or ex post facto law shall be passed [by Congress].” As the Supreme Court has often clarified, “[i]n forbidding bills of attainder, the draftsmen of the Constitution sought to prohibit the ancient practice of the Parliament in England of punishing without trial ‘specifically designated persons or groups.’” Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984) (quoting United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965)). Consistent with this characterization, the Court has generally defined a bill of attainder as “‘a law that legislatively determines guilt and inflicts punishment upon an identified individual without provision of the protections of a judicial trial.’ ” Id. (quoting Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)). Where, as here, the liability in. question clearly attaches by operation of the legislative act alone, the constitutional test may be summarized in the following two-pronged test: First, has the legislature acted with specificity? Second, has it imposed punishment? In this case, SBC argues that the Special Provisions constitute a bill of attainder because they impose line-of-business restrictions on named corporations. As SBC portrays the Special Provisions, they represent Congress’s unconstitutional legislative determination that the BOCs are the guilty spawn of AT&T, who deserve to be deprived of their current ability to enter the long distance, information services, and telecommunications equipment markets as punishment" }, { "docid": "2237975", "title": "", "text": "or their sympathizers from holding certain jobs. The Court recognized that “in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.” Id. 71 U.S. at 321-22 (emphasis added). The law has not changed. In Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866), the Court applied Cummings’s reasoning to strike down, as a bill of attainder, a federal statute barring Confederates from practicing in the federal courts. More' recently, in United States v. Lovett, 328 U.S. 303, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946), the Court reaffirmed the principle that line-of-work restrictions are inherently punitive, invalidating a federal statute terminating the salaries of three named federal employees. And in United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), the Court once again held that a statute proscribing entry into a certain line of work constituted punishment, striking down a federal statute that forbade members of the Communist Party from serving as labor union officials. Any doubt that employment, bars fall squarely within the historical conception of punishment was érased by the Court’s two most recent bill of attainder cases. In Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 474, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Court canvassed the various burdens historically deemed punitive, concluding that “[o]ur country’s own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations....” The Court’s latest pronouncement,’ in Selective Serv. Sys. v. Minnesota PIRG, 468 U.S. 841, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984), echoes Nixon: “In our own country, the list of punishments forbiddpn by the Bill of Attainder Clause has expanded to include legislative bars to participation by individuals or groups in specific" }, { "docid": "5285564", "title": "", "text": "S.Ct. at 1078. Noncriminal punishment is included. In United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), the Court invalidated a statute denying labor union employment to most members of the Communist Party. With regard to the “punishment” element, the Court noted that it had “emphatically rejected the - argument that the constitutional prohibition outlawed only a certain class of legislatively imposed penalties.” Id. at 447-48, 85 S.Ct. at 1714. Also noted was the fact that the Bill of Attainder Clauses reflected the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons. Id. at 445, 85 S.Ct. at 1713. The modern definition of “punishment” for bill of attainder purposes was established by the Supreme Court in connection with former President Richard Nixon’s challenge to the Presidential Recordings and Materials Preservation Act, Pub.L. No. 93-526, §§ 101-106, 88 Stat. 1695, 1695-98 (1974). The Act provided that the Administrator of General Services take custody of Nixon’s papers and tape recordings and promulgate regulations for access to the materials. Certain private papers of the former President were to be returned to him after screening by government archivists. See Nixon v. United States, 978 F.2d 1269, 1271-72 (D.C.Cir.1992) (describing in detail the legislative and regulatory scheme of the Act). In holding that the Act was not a bill of attainder, the Court applied three tests to determine whether legislative punishment of the type contemplated by the Bill of Attainder Clauses was imposed: the “historical” test, involving “punishment traditionally judged to be prohibited by the Bill of Attainder Clause,” Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 475, 97 S.Ct. 2777, 2806, 53 L.Ed.2d 867 (1977), including death, imprisonment, banishment, punitive confiscation of property by the sovereign and, in more recent times, laws “barring designated individuals or groups from participation in specified employments or vocations,” id. at 474, 97 S.Ct. at 2806; the “functional” test, which “analyz[es] whether the law under challenge, viewed in terms" }, { "docid": "7838420", "title": "", "text": "had included penalties short of death among those prohibited by the bill of attainder clause. See id. Today, the prohibition against bills of attainder prevents any “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). Thus, under the most current interpretations of the bill of attainder clause, a law is prohibited if it (1) applies with specificity, and (2) imposes punishment. As we made clear in BellSouth I, see 144 F.3d at 62-63, both of these elements must be present before we will find an unconstitutional bill of attainder. Indeed, the Supreme Court has required both specificity and punishment before it will find that a law constitutes a bill of attainder. In its most recent bill of attainder cases, Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 851, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984), and Nixon v. Adminis trator of General Services, 433 U.S. 425, 469-72, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Court has clearly stated that satisfaction of the specificity prong alone is not sufficient to find that a particular law implicates the bill of attainder clause, let alone violates it. See Selective Service, 468 U.S. at 851, 104 S.Ct. 3348 (“Even if the specificity element were deemed satisfied by [the statutory provision in question], the statute would not necessarily implicate the Bill of Attainder Clause. The proscription against bills of attainder reaches only statutes that inflict punishment on the specified individual or group.”) (emphasis added); Nixon, 433 U.S. at 471-72, 97 S.Ct. 2777 (“[T]he Act’s specificity — the fact that it refers to appellant by name — does not automatically offend the Bill of Attainder Clause.”). The Court’s jurisprudence on this point is hardly surprising, because [legislative measures often grant or withhold benefits or burdens from precisely identified individuals or groups. A bailout for Chrysler might be" }, { "docid": "2665", "title": "", "text": "sole shareholder of two affected corporations (South Central Bell Telephone Company and Southern Bell Telephone and Telegraph Company) is clearly enough to give it Article III standing. See Franchise Tax Board of California v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S.Ct. 661, 663-664, 107 L.Ed.2d 696 (1990). Besides, as an affiliate of two BOCs, § 274(i)(1), BellSouth is itself affected; it can engage in electronic publishing only by maintaining structural separation from its BOCs. Bill of Attainder Challenge We turn first to BellSouth’s challenge under Article I, section 9, clause 3 of the Constitution, which says that “[n]o Bill of Attainder or ex post facto Law shall be passed” by Congress, For the framers of the Constitution the term “bills of attainder” carried a specific meaning: it referred to parliamentary acts sentencing named persons to death without the benefit of a judicial trial. As early as 1810, however, in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1810), Chief Justice Marshall noted in dictum that the prohibition on bills of attainder ought to extend to legislation subjecting specified persons to penalties short of death—what the framers called “bills of pains and penalties.” Id. at 138, 3 L.Ed. 162; United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 1714, 14 L.Ed.2d 484 (1965). Later in the nineteenth century the Supreme Court confirmed that the legislative punishments foreclosed by the Bill of Attainder Clause include bills of pains and penalties. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 320, 323, 18 L.Ed. 356 (1866). Moreover, the Court has recognized that not all bills of attainder expressly name their targets; some simply describe them. Brown, 381 U.S. at 442, 85 S.Ct. at 1711-12. In sum, the Court has developed a potentially sweeping definition of forbidden attainders, holding that “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial áre bills of attainder prohibited by the Constitution.” United States v. Lovett, 328," }, { "docid": "17784479", "title": "", "text": "is de novo, Northwest Tissue Center v. Shalala, 1 F.3d 522, 527 (7th Cir.1993), and we must accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in the light most favorable to the plaintiffs. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). For the reasons stated below, we affirm the judgment of the district court. II. A. Article I, § 9, clause 3 of the United States Constitution prohibits Congress from passing bills of attainder. The Supreme Court has defined a bill of attainder as “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Selective Service System v. Minnesota Public Interest Research, 468 U.S. 841, 846-47, 104 S.Ct. 3348, 3351-52, 82 L.Ed.2d 632 (1984); see also Schellong v. I.N.S., 805 F.2d 655, 662 (7th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1624, 95 L.Ed.2d 199 (1987). Thus, it is apparent that a bill of attainder consists of three elements: (1) specification of the affected persons; (2) punishment; and (3) lack of a judicial trial. As the Supreme Court has noted on numerous occasions, the Bill of Attainder Clause “is an important ingredient of the doctrine of separation of powers,” see e.g., United States v. Brown, 381 U.S. 437, 442-43, 85 S.Ct. 1707, 1711-12, 14 L.Ed.2d 484 (1965), that historically was viewed as a limitation on the power of the legislature alone. See generally, Nixon v. Administrator of General Services, 433 U.S. 425, 473-75, 97 S.Ct. 2777, 2805-06, 53 L.Ed.2d 867 (1977); L. Tribe, American Constitutional Law 660 (1988). “Just as Art. Ill confines the Judiciary to the task of adjudicating concrete ‘cases or controversies,’ so too the Bill of Attainder Clause was found to ‘reflect ... the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.’ ” Nixon, 433 U.S. at 469, 97 S.Ct. at 2803 (quoting Brown, 381 U.S. at 445, 85 S.Ct. at 1713)." }, { "docid": "2237913", "title": "", "text": "termed a “bill of pains and penalties.” Id. at 209-10. Although some of the Supreme Court’s earliest opinions appeared to recognize that attainder was technically confined to capital cases, its subsequent jurisprudence has uniformly supported a broader sweep for the constitutional prohibition. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L.Ed. 162 (1810) (Marshall, J.) (“A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.”); Cummings, 71 U.S. at 323 (“Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.”); Lovett, 328 U.S. at 314, 66 S.Ct. 1073 (“ ‘A bill of attainder is a legislative act which inflicts punishment without a judicial trial.’ ”) (quoting Cummings, 71 U.S. at 323); Brown, 381 U.S. at 447, 85 S.Ct. 1707 (noting that “the Bill of Attainder Clause [i]s not to be given a narrow historical reading (which would exclude bills of pains and penalties), but [i]s instead to be read in light of the evil the Framers ... sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups”); cf. 3 Story, Commentaries § 1338 at 210 (“But in the sense of the constitution, it seems, that bills of attainder include bills of pains and penalties.”) (citing Fletcher). Apart from making clear that the Clause reaches punishment of a lesser severity than the death penalty, however, these general statements provide little assistance to our present inquiry. More guidance is found by considering the details of the Court’s development of the punishment prong. In Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1866), and its companion case, Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866), Justice Field considered whether laws requiring that persons swear an oath under penalty of perjury disclaiming any past sympathy for the Confederacy before engaging in certain professions constituted punishment for attainder purposes. Noting that “[t]he deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation" }, { "docid": "18812142", "title": "", "text": "may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation. Id. With this standard in mind, the court now examines plaintiffs’ challenges to § 1113. A. Bill of Attainder Plaintiffs allege that § 1113 is a bill of attainder in violation of U.S. Const, art. I, § 9, cl. 3. A bill of attainder is a law that legislatively determines guilt and inflicts punishment upon an identifiable individual or group without the protections of a judicial trial. Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 2803, 53 L.Ed.2d 867 (1977). The writings of the framers of our Constitution indicate that the “Bill of Attainder Clause was not intended as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function .... ” United States v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 1711, 14 L.Ed.2d 484 (1965). Thus the Bill of Attainder clause not only was intended as one implementation of the general principle of fractionalized power, but also reflected the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons. Id. at 445, 85 S.Ct. at 1713. The Supreme Court has avoided construing the clause narrowly and instead has read it in light of the evil it was intended to bar. The Court has struck down, for example, as a bill of attainder: an amendment to the Missouri Constitution that provided no one could engage in a number of specified professions unless he first swore he had taken no part in the rebellion against the Union, Cummings v. Missouri, 71 U.S. (4 Wall) 277, 18 L.Ed. 356 (1867); a federal statute that required attorneys to take a similar oath before they could practice in federal courts, Ex parte Garland, 71 U.S. (4 Wall) 333, 18 L.Ed. 366 (1867); § 304 of the Urgent" }, { "docid": "9797084", "title": "", "text": "the framework for modern bill of attainder analysis. Under the current interpretation of the Bill of Attainder Clause, a law is constitutionally impermissible if it both specifically singles out individuals (or businesses) and imposes punishment on them. See BellSouth II, 162 F.3d at 683 (citing United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946)); see also Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 471-72, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (“the Act’s specificity, the fact that it refers to appellant by name does not automatically offend the Bill of Attainder Clause”). Once it is determined that a law identifies its subject with specificity, the next question is whether the statute inflicts punishment as defined by Nixon. See BellSouth II, 162 F.3d at 684. Under Nixon, whether a statute inflicts a “punishment” under the Bill of Attainder Clause depends on (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of the burdens imposed, reasonably can be said to further non-punitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish. See BellSouth II, 162 F.3d at 684 (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. 2777). We need not address the issue of whether the Act applies with specificity, because the Act does not impose punishment on Intratec and Penn Arms as contemplated by the Bill of Attainder Clause in Article I, Section 9 of the Constitution. The historical meaning of legislative punishment includes a death sentence, imprisonment, banishment, confiscation of property and legislative bars to participation by individuals or groups in specific employments or professions. See Nixon, 433 U.S. at 473-74, 97 S.Ct. 2777; Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). The Act at issue in this case does not condemn appellants to death or imprisonment, but rather specifies certain conduct from which appellants must refrain in order to avoid punishment. Appellants argue" }, { "docid": "21042662", "title": "", "text": "Home Ordinance 544 the day before a hearing was held regarding Crain’s motion for a preliminary injunction. After the trial judge expressed doubts as to the constitutionality of Mountain Home Ordinance 535, the council passed Mountain Home Resolution 109 authorizing payment to Crain of back salary and benefit entitlements for the period from November 6, 1978, through December 31, 1978. Crain’s complaint for declaratory and injunctive relief was denied as to Ordinance 534 but granted as to Ordinance 535. The district court awarded Crain $3,000 in attorney’s fees pursuant to 42 U.S.C. § 1988, but noted that Crain had accepted payment by the council of his back salary and benefits for 1978. Accordingly, the district court denied Crain further compensation for that period. II Crain contends that Ordinances 534 and 535 are bills of attainder in violation of Article I, Section 10 of the Constitution. The imposition on an easily identifiable individual or class of a sanction of mandatory forfeiture of job or office has long been considered punishment under the bill of attainder clause. Nixon v. Administrator of General Services, 433 U.S. 425, 469, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); United States v. Lovett, 328 U.S. 303, 316, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). Thus, The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment. United States v. Brown, 381 U.S. 437, 448, 85 S.Ct. 1707, 1714, 14 L.Ed.2d 484 (1965), quoting Cummings v. Missouri, 71 U.S. 277, 4 Wall. 277, 320, 18 L.Ed. 356 (1867). Ordinance 535 falls squarely within these definitions of a bill of attainder. That legislation clearly names an individual “in such a way as to inflict punishment on [him] without a judicial trial,” United States" }, { "docid": "2705", "title": "", "text": "statute single out individuals by name, and that was deemed an unconstitutional bill of attainder. See Lovett, 328 U.S. 303, 66 S.Ct. 1073. And, as the Supreme Court has held, “legislative bars to participation by individuals or groups in specific employments or professions” do indeed constitute punishment within the meaning of this test. Selective Service System v. Minnesota Public In terest Research Group, 468 U.S. 841, 852,104 S.Ct. 3348, 3355, 82 L.Ed.2d 632 (1984). Absent the Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), I think we would rule this an unconstitutional bill of attainder without going further. Mere specificity may not make an act a bill of attainder, but in most cases the Court has required little more. The Court has described the Bill of Attainder Clause as the embodiment of a fundamental principle of separation of powers: “a legislature can provide that persons possessing certain characteristics must abstain from certain activities, but must leave to other tribunals the task of deciding who possesses those characteristics.” United States v. Brown, 381 U.S. 437, 454 n. 29, 85 S.Ct. 1707 at 1718 n. 29, 14 L.Ed.2d 484 (1965). But Nixon precludes defining a bill of attainder solely in terms of its specificity. In that case, Congress acted against a single, named individual for disfavored treatment as compared to “all other Presidents or members of the Government.” 433 U.S. at 470, 97 S.Ct. at 2804. After a herculean struggle, the Court concluded that the statute could be upheld because “appellant constituted a legitimate class of one....” Id. at 472, 97 S.Ct. at 2805. The majority upholding that statute included Justice Stevens, who noted in his separate concurrence that “[t]he very specificity of the statute would mark it as punishment, for there is rarely any valid reason for such narrow legislation; and normally the Constitution requires Congress to proceed by general rulemaking rather than by deciding individual cases.” Id. at 485-86, 97 S.Ct. at 2814 (Stevens, J., concurring). Just so. And absent that Nixon decision, the theory advanced by Brown" }, { "docid": "5285563", "title": "", "text": "the Court had done in these two oath cases — extended the protection of the Bill of Attainder Clause to members of a class who were not the subject of criminal punishment: “[a] statute . ■.. which designates no criminal, either by name or description — which declares no guilt, pronounces no sentence, and inflicts no punishment — can in no sense be called a bill of attainder.” Id. at 390 (Miller, J., dissenting). Legislation influenced by the “Cold War” gave rise to more bill of attainder jurisprudence. In United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946), the Supreme Court invalidated a statute preventing the payment of salaries to three federal employees believed to. be subversive. The Court observed that the bill of attainder provisions of the Constitution proscribe any legislative act “no matter what [its] form, that applies] either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” Id. at 315, 66 S.Ct. at 1078. Noncriminal punishment is included. In United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), the Court invalidated a statute denying labor union employment to most members of the Communist Party. With regard to the “punishment” element, the Court noted that it had “emphatically rejected the - argument that the constitutional prohibition outlawed only a certain class of legislatively imposed penalties.” Id. at 447-48, 85 S.Ct. at 1714. Also noted was the fact that the Bill of Attainder Clauses reflected the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons. Id. at 445, 85 S.Ct. at 1713. The modern definition of “punishment” for bill of attainder purposes was established by the Supreme Court in connection with former President Richard Nixon’s challenge to the Presidential Recordings and Materials Preservation Act, Pub.L. No. 93-526, §§ 101-106, 88 Stat. 1695, 1695-98 (1974). The Act provided that the" }, { "docid": "23469361", "title": "", "text": "punishment upon an identifiable individual without provision of the protections of a judicial trial.” Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-47, 104 S.Ct. 3348, 3352, 82 L.Ed.2d 632 (1984) (quoting Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)). The resolution in question, censuring appellant for “improper use of public funds,” unquestionably resembles a bill of attainder in several respects. First, R83-65 clearly identifies an individual. Second, the resolution arguably accuses appellant of unprofessional, unethical and criminal conduct. Third, the City Council, by passing the resolution, impliedly found appellant guilty without affording him the protections guaranteed by the formal adversarial process. Despite the similarities between the resolution and a bill of attainder, the district court determined that R83-64 is not a bill of attainder because the resolution “is not a legislative pronouncement with the force of law” and because it “does not prescribe a punishment, penalty or forfeiture.” Little, 624 F.Supp. at 771. Regarding the punishment requirement, the Supreme Court has recognized three tests for determining whether a law penalizes an individual for bill of attainder purposes: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a [legislative] intent to punish.’ ” Selective Service System, 468 U.S. at 852, 104 S.Ct. at 3355 (quoting Nixon, 433 U.S. 425 at 473, 475-76, 478, 97 S.Ct. 2777, 2805, 2806-07, 2809, 53 L.Ed.2d 867). Although a public censure is not as harsh a sanction as the historical “pains and penalties” of imprisonment, banishment, punitive confiscation of property or “a legislative enactment barring designated individuals or groups from participation in specified employments or vocations,” it is a recognized mode of punishment in certain circumstances. Second, given the unique facts presented by this case, we are unable to conceive of any non-punitive, legitimate municipal purpose justifying the passage of R83-65. Considering the third test for determining" }, { "docid": "23331185", "title": "", "text": "of the punishment for crimes committed before their enactment. The Supreme Court, although not expressly adopting the Kennedy factors, recently applied many of the same factors in deciding an ex post facto challenge in another context. See Kansas v. Hendricks, 521 U.S. 346, 360-69, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Hendricks involved a constitutional challenge to a civil commitment statute, Kansas’s Sexually Violent Predator Act. See id. at 2076. The Court conducted a single analysis, determined that the law at issue was not punitive, and concluded that the law could not violate either the double jeopardy prohibition or the ban on ex post facto laws. See id. at 2081-85. In light of the analysis in Hendricks, we are persuaded that the intent-effects analysis we have discussed in the double jeopardy context applies as well for determining whether the Ex Post Facto Clause is implicated by the Act. Using this approach, we conclude, once again, that the Act was not intended to punish, and its requirements do not transform the law into punishment. Because the Act imposes no punishment, the Ex Post Facto Clause is not implicated. 3. A third challenge Cutshall lodges against the Act is that it violates the constitutional bar against bills of attainder. The Bill of Attainder Clause, U.S. Const. art. I, § 9, cl. 3, prohibits legislatures from engaging in “[legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” United States v. Brown, 381 U.S. 437, 448-49, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965). In Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Supreme Court considered the definition of punishment in the bill of attainder context. The Court announced a three-prong test for determining whether the law in question imposed a punishment. The Court considered, first, punishments that historically would have been viewed as violative of the bill of attainder prohibition: “imprisonment, banishment, ... the punitive confiscation of property by" }, { "docid": "10875094", "title": "", "text": "Thus, the case is ripe for summary disposition. Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, 402 (1st Cir.1978); and when both parties cross-move on the same legal theory, a court’s granting of one party’s motion must perforce entail the denial of the adversary’s motions. Schlytter v. Baker, 580 F.2d 848, 849 (5th Cir.1978); Stewart v. Dollar Savings and Loan Association, 523 F.Supp. 218, 220 (S.D. Ohio 1981). BILLS OF ATTAINDER The Court first will determine the statute’s constitutionality as to the claim that it is a bill of attainder. Article I, § 10 of the Constitution prohibits any state from enacting a bill of attainder. A bill of attainder is a legisla tive act which inflicts punishment on a specifically designated person or group without benefit of trial. United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 1714, 14 L.Ed.2d 484 (1965); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356. In Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Supreme Court enounced a two-part test for determining whether a legislative enactment is a bill of attainder. If the act impermissibly designates an individual or an easily identifiable group and then proceeds to punish that person or group, the act is a bill of attainder. Id. at 472, 97 S.Ct. at 2805. The plaintiff interprets S. 924 as fulfilling both criteria of the test set forth in Nixon, supra. UNC contends that it was singled out, thus meeting the first requirement of the Nixon test; and that posting a seven-figure bond for two decades must be viewed as a punishment within the purview of the second prong of the test. UNC grossly misreads the Supreme Court’s holding in Nixon. Although specific designation is a key element of a bill of attainder, the earmarking of a person (whether natural or corporate) or group does not automatically offend the prohibition against bills of attainder. Id. The Supreme Court noted that such singling out may be rational in certain circumstances, among these being situations in which" }, { "docid": "18733022", "title": "", "text": "whether the legislation in question constitutes a bill of attainder. A bill of attainder is defined as “a legislative act which inflicts punishment without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356 (1866)). Such bills are condemned in the Constitution largely because they represent a legislative encroachment on powers more properly exercised by the judiciary. A bill of attainder, “assumes, in the language of the textbooks, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial.” Cummings v. Missouri, 71 U.S. (4 Wall.) at 323. Historically, bills of attainder carried a death penalty while bills of pains and penalties carried lesser punishments. The bill of attainder clause of the Constitution, however, has been consistently construed to apply to bills of pains and penalties as well as bills carrying a death penalty. See, e.g., United States v. Brown, 381 U.S. 437, 441, 85 S.Ct. 1707, 1711, 14 L.Ed.2d 484 (1964); United States v. Lovett, 328 U.S. at 315, 66 S.Ct. at 1078; Cummings v. Missouri, 71 U.S. (4 Wall.) at 323. Bills of attainder have historically been passed in times of rebellion such as the rebellion of the Earl of Kildare in Great Britain, see 28 Hen. VIII., ch. 18, or the Civil War here in the United States. See generally Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1866) (discussing bill of attainder of persons who aided rebellion against United States). The temptation to utilize bills of attainder is especially strong when national security is thought to be threatened. See generally United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946) (discussing attainder of government employees thought “subversive” during wartime). Linnas argues that the Holtzman amendment is a legislative enactment directed at a small group of individuals, Nazi war criminals, for the purpose of punishing those persons without judicial trial. Linnas contends that such a statute constitutes a prohibited bill" }, { "docid": "23331186", "title": "", "text": "Act imposes no punishment, the Ex Post Facto Clause is not implicated. 3. A third challenge Cutshall lodges against the Act is that it violates the constitutional bar against bills of attainder. The Bill of Attainder Clause, U.S. Const. art. I, § 9, cl. 3, prohibits legislatures from engaging in “[legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” United States v. Brown, 381 U.S. 437, 448-49, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965). In Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Supreme Court considered the definition of punishment in the bill of attainder context. The Court announced a three-prong test for determining whether the law in question imposed a punishment. The Court considered, first, punishments that historically would have been viewed as violative of the bill of attainder prohibition: “imprisonment, banishment, ... the punitive confiscation of property by the sovereign,” and “a legislative enactment barring designated individuals- or groups from participation in specified employments or vocations.” Id. at 474, 97 S.Ct. 2777 (footnotes omitted). Second, the Court considered whether, in light of the severity of the burdens imposed, the challenged law served legitimate nonpunitive purposes. See id. at 475-76, 97 S.Ct. 2777. Third, the Court examined whether the legislature intended the law to serve as punishment. See id. at 478, 97 S.Ct. 2777 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644). These three considerations were applied again in Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). It is self-evident, we think, that the Tennessee. Act did not, in light of these considerations, violate the Bill of Attainder Clause. Gathering and possibly disseminating information is not one of the traditional forms of punishment. And, as we have made clear, the Act serves legitimate regulatory purposes and was not intended to serve as punishment. 4. Cutshall argues that" } ]

[ { "docid": "1371273", "title": "", "text": "dismiss plaintiffs’ complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. The basis of As-ten-Hill’s motion was that the exclusivity provisions of both the Pennsylvania Workmen’s Compensation and the Occupational Disease Acts barred plaintiffs’ action against their employer. On April 6, 1983, the district court granted the motion and simultaneously dismissed the claims of the other defendants and third-party defendants against Asten-Hill. The plaintiffs’ claims against the remaining defendants were tried on April 15 and 16, 1985. On May 15, 1985, the district court entered judgment on plaintiffs' behalf against one of the suppliers, Bell Asbestos Mines, and dismissed the claims against the other suppliers. At this time, the district court made final the April, 1983 dismissal of the claims against Asten Hill. We are now presented with plaintiffs’ appeal of that dismissal. The other defendants and third-party defendants have not appealed the dismissal of their crossclaims against Asten-Hill. II. A federal court sitting in a diversity action must apply the substantive law of the state in which it sits and thus must predict how the highest state court would resolve the case. Brown v. Caterpillar Tractor Co., 696 F.2d 246, 250 (3d Cir.1982). In this case, we must predict whether the Pennsylvania Supreme Court would permit employees who are eligible for benefits under the Pennsylvania Workmen’s Compensation and Occupational Disease Acts to bring a third-party claim against their employer on an intentional tort theory predicated upon the allegations of the complaint in this case. Pennsylvania enacted its Workmen’s Compensation Act in 1915, Pa.Stat.Ann. tit. 77, § 1, et seq., and its Occupational Disease Act in 1938, Pa.Stat.Ann.tit. 77, § 1201, et seq. Both Acts were based on a theory of “trade-offs.” They provided certain compensation for the disability or death of an employee caused by an injury or occupational disease arising out of and in the course of employment. In return for these guaranteed payments, the employer was given immunity from common law suits by employees. 77 Pa.Stat.Ann. §§ 481(a), 1403. This Court has explained the purpose of these provisions: The" } ]

[ { "docid": "13805197", "title": "", "text": "Bankr.P. 7008 . “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support [its] claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Therefore, the Court should not grant a Rule 12(b)(6) motion “unless is appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. 99. In addition, Rule 12(b)(6) authorizes the Court to dismiss a claim on a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). In determining whether a claim should be dismissed pursuant to Rule 12(b)(6), the Court may look only to the allegations contained in the Complaint and any exhibits attached thereto. City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 (3d Cir.1998). If matters outside the Complaint are presented to and not excluded by the Court, the motion to dismiss “shall be treated as one for summary judgment and disposed of as provided in [Fed. R.Civ.P.] 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion”. Fed.R.Civ.P. 12(b); see also Pension Ben. Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir.1993) (“The reason that a court must convert a motion to dismiss to a summary judgment motion if it considers extraneous evidence submitted by the defense is to afford the plaintiff an opportunity to respond.”). The decision to consider evidence outside the Complaint and convert a motion to dismiss to one for summary judgment is within the discretion of the Court. Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.1992). Defendant argues that in determining whether dismissal is proper with respect to Count I, the" }, { "docid": "20060166", "title": "", "text": "in the first two causes of action, Defendants violated New York Executive Law § 296(1). Defendants now move to dismiss the Title VII religious discrimination and harassment claims on the grounds that they are time-barred. They also move to dismiss the Title VII claims against Rosenthal and Morrissey individually on the grounds that they were not named in the EEOC charge. They move to dismiss the HRL claims for lack of pendent jurisdiction. Discussion 1. Standard for a Motion to Dismiss A court should dismiss a complaint for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P., only if it appears beyond doubt that the plaintiff can prove no set of facts supporting its claim that would entitle it to relief. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985). A court must construe the complaint’s allegations in the light most favorable to the plaintiff and accept those allegations as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Dacey v. New York County Lawyers’ Assoc., 423 F.2d 188, 191 (2d Cir.1969), cert. denied, 398 U.S. 929, 90 S.Ct. 1819, 26 L.Ed.2d 92 (1970). A. Charge of Religious Discrimination is Time-Barred As a prerequisite to bringing a Title VII action in federal court, a complainant must file a charge with the EEOC within 300 days of the alleged unlawful act. 42 U.S.C. § 2000e-5(e); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Travers v. Coming Glass Works, 76 F.R.D. 431, 432 (S.D.N.Y.1977). The purpose of the filing procedures is to convey prompt notice to the employer, thereby encouraging conciliation wherever possible. Adames v. Mitsubishi Bank Ltd., 751 F.Supp. 1565, 1570 (E.D.N.Y.1990). The parties do not dispute that Drummer timely filed her EEOC Charge alleging" }, { "docid": "11410920", "title": "", "text": "all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). The Court need not determine whether the plaintiff will ultimately prevail; rather, it must determine whether the plaintiff can prove any set of facts to support his claim that would entitle him to prevail. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The defendant carries the burden of establishing that no claim has been presented. Curry v. Huyett, 1994 WL 111357 *1 (E.D.Pa.). Has Plaintiff Alleged A § 1983 Claim? In order to state a claim under § 1983, a plaintiff must allege two things: 1) the violation of a right secured by the Constitution and laws of the United States; and 2) the commission of the deprivation by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572(1980); Buzzanco v. Lord Corp., 173 F.Supp.2d 376, 381 (E.D.Pa.2001); Breslin v. Brainard, 2002 WL 31513425 *3 (E.D.Pa.). As is shown below, the Plaintiff has plainly set forth the first requirement, but it is unclear whether she has adequately plead the second. Is a Constitutional Violation Alleged? The Complaint alleges that the County’s decision to serve the rule by publication when it had confirmed the Plaintiffs mailing address is constitutionally inadequate. Complaint, Count I. The County defends its action arguing the Pennsylvania rules of procedure provide for published service. Motion, 8. Does publication service pass constitutional muster when other, more direct methods, are available? Beginning with Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court has consistently made clear that service by publication alone failed the “elementary and fundamental requirement of due process ... which is to ... apprise interested parties of the pen-dency of the action and" }, { "docid": "15712775", "title": "", "text": "of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff could prove any set of facts in support of his claim that would entitle the plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In cases brought under 42 U.S.C. § 1983, the pleading requirements are somewhat stricter than usual. The Court of Appeals “ ‘has consistently demanded that a civil rights complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs.’ ” Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.1988) (quoting Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (per curiam)), cert. denied, — U.S.-, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). To meet this requirement, the complaint need only avoid frivolity and provide the defendants enough notice to frame an answer. Freedman v. City of Allentown, 853 F.2d 1111, 1114 (3d Cir.1988). The basic Rule 12(b)(6) standard is unchanged. Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986). A. Count I The governmental defendants attack Count I on several grounds. First, they maintain that allegations, here and elsewhere, against both the Borough of Wilson and the Wilson Police Department are redundant, because the Department is an administrative part of the Borough. Thus, they argue that the Department should be dismissed from this action. Second, they argue that, if the claim against Nace rests against actions taken in his official capacity, it merges with the claim against Wilson; hence, Wilson should also be dismissed. If, on the other hand, the claim against Nace rests on actions taken in his individual capacity, the complaint" }, { "docid": "19696081", "title": "", "text": "82 F.3d 63, 65 (3d Cir.1996); Pieckniek v. Pennsylvania, 36 F.3d 1250, 1255 (3d Cir.1994); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). Nonetheless, legal conclusions made in the guise of factual allegations are not given a presumption of truthfulness. See Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 846 (D.N.J.1992), aff'd, 37 F.3d 1485 (3d Cir.1994). Although a court must assume the truth of all facts alleged, it is improper to presume a plaintiff can prove any facts hot alleged in the Complaint. Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). A court may dismiss a complaint for failure to state a claim “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17, 125 L.Ed.2d 612 (1993); In re Westinghouse Securities Litigation, 90 F.3d at 706 (dismissal only appropriate where “it appears certain the plaintiffs can prove no set of facts entitling them to relief’); Piecknick, 36 F.3d at 1255. A Federal court reviewing the sufficiency of a complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir.1985), overruled on other grounds, DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197-98, 109 S.Ct. 998, 1004-05, 103 L.Ed.2d 249 (1989). As indicated, in the instant case, the Defendants seek to dismiss counts VI, XI and XII entirely and to dismiss counts I, III and V counts as against Doyle" }, { "docid": "9773295", "title": "", "text": "807 F.2d 208, 215 (D.C.Cir.1986); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Western Mining Council v. Watt, 643 F.2d 618, 626 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). A court may dismiss a complaint for failure to state a claim where it appears beyond doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Unger, 928 F.2d at 1395; Markowitz, 906 F.2d at 103; Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). However, “a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 102; accord Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Unger, 928 F.2d at 1395; Angelastro v. Prudential-Bache Secur., Inc., 764 F.2d 939, 944 (3d Cir.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). A Federal court reviewing the sufficiency of the complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); see also Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir.1985). “When making a determination under Rule 12(b)(6), the court cannot consider matters outside the pleadings.” Wiley v. Hughes Capital Corp., 746 F.Supp. 1264, 1275 (D.N.J. 1990); see Allison v. General Motors Corp., 604 F.Supp. 1106, 1119 (D.Del.), aff'd, 782 F.2d 1026 (3d Cir.1985). a. Qualified Immunity and Biase’ Bivens Claims As indicated, Counts I through III seek" }, { "docid": "23320917", "title": "", "text": "a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Morales v. New York State Dep’t of Corrections, 842 F.2d 27, 30 (2d Cir.1988). The Court must accept plain tiffs allegations of facts as true, together with such reasonable inferences as may be drawn in its favor. See Murray v. Milford, 380 F.2d 468, 470 (2d Cir.1967). See also Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686. Fed.R.Civ.P. 8(a) requires only a “ ‘short and plain statement of the claim’ that will give the defendant fair notice of what plaintiffs claim is and the ground upon which it rests.” Conley, supra, 355 U.S. at 47, 78 S.Ct. at 103, quoting Fed.R.Civ.P. 8(a)(2), cited in Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). “The function of a motion to dismiss ‘is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ ” Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984) (citation omitted). “Dismissal of a complaint for failure to state a claim is a ‘drastic step.’ ” Meyer v. Oppenheimer Management Corp., 764 F.2d 76, 80 (2d Cir.1985) (citation omitted). 2) Motion for Summary Judgment Rule 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “ ‘Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.’ ” Horn &" }, { "docid": "9549145", "title": "", "text": "Count IV. In his amended complaint, plaintiff alleges that defendant falsely accused plaintiff of sexually harassing employees in his division, specifically “one Holly Reic-hert, by allegedly asking her out socially, allegedly touching her offensively, alleg edly making sexual advances and comments, allegedly sending sexually oriented notes to employees in his division.” (Amended Complaint at 1122). Plaintiff claims that these accusations which became public were “humiliating, defamatory and insulting to plaintiff, and showed a conscious disregard for the rights of plaintiff.” (Amended Complaint at ¶ 25). Defendant now moves to dismiss the amended Count IV. Discussion F.R.Civ.P. 12(b)(6) instructs a court to dismiss a case for failure to state a cause of action only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). The issue is not whether plaintiffs will ultimately prevail, but whether they are entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Because granting such a motion results in a determination on the merits at such an early stage of plaintiffs’ case, “ ‘we must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff,’ and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 665 (3d Cir.1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985)), cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). Defendant argues that we should dismiss plaintiff’s claim for intentional infliction of emotional distress because under Pennsylvania law, such a claim against one’s employer is completely barred by the Pennsylvania Workmen’s Compensation Act and because it fails to allege the extreme and outrageous conduct and the severe emotional distress necessary to state such a claim. We agree. In pertinent part, the exclusivity provision of the" }, { "docid": "8999969", "title": "", "text": "should grant a motion to dismiss under Fed.R.CivJP. 12(b)(6) for failure to state a claim only if “ ‘it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)); Annis v. County of Westchester, 36 F.3d 251, 253 (2d Cir.1994); Easton v. Sundram, 947 F.2d 1011, 1014 (2d Cir.1991), cert. denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). In applying this standard, a district court must “read the facts alleged in the complaint in the light most favorable” to the plaintiff, and accept these allegations as true. Id. at 249, 109 S.Ct. at 2906; see Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir.1994); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (citing Fed.R.Civ.P. 8(a)(2) to demonstrate liberal system of ‘notice pleading’ employed by the Federal Rules of Civil Procedure). The court’s duty merely is “to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The appropriate inquiry, therefore, is not “whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Ricciuti v. New York City Transit Authority, 941 F.2d 119, 124 (2d Cir.1991) (plaintiff is not compelled to prove his case at the pleading stage). Additionally, the Rules do not require the claimant to set out in detail the facts upon which he or she bases a claim, but only that he or she gives" }, { "docid": "22446052", "title": "", "text": "dismissed the action without leave to amend on the ground that it was time-barred. Cervantes appeals, arguing that equitable tolling saves his otherwise untimely claim. II In federal court, dismissal for failure to state a claim is proper “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Review is limited to the complaint; “evidence outside the pleadings ... cannot normally be considered in deciding a 12(b)(6) motion.” Farr v. United States, 990 F.2d 451, 454 (9th Cir.1993). “The issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (emphasis added). Thus, “[w]hen a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980). California’s one-year statute of limitations for personal injury actions applies to Cervantes’ section 1983 claim. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985); Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir.1987). Cervantes concedes that, absent equitable tolling, his claim would be time-barred. As with the limitations period itself, we borrow our rules for equitable tolling of the period from the forum state, California. See Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Harding v. Galceran, 889 F.2d 906, 907 (9th Cir.1989). California courts “have liberally applied tolling rules or their functional equivalents to situations in which the plaintiff has. satisfied the notification purpose of a limitations statute.” Elkins v. Derby, 12 Cal.3d 410, 418, 115 Cal.Rptr. 641, 647, 525 P.2d 81, 87 (1974). Consistent with this tradition, the doctrine" }, { "docid": "19690796", "title": "", "text": "a pro se complaint, it is axiomatic that the court must construe it liberally, applying less stringent standards than when counsel prepared the pleading. Hughes v. Roe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). When considering any motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim, the court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir.1991), cert. denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir.1991). The issue [on a motion to dismiss] is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. B. Exhaustion of Administrative Remedies Suits against federal agencies under Title VII, the ADEA, and the Rehabilitation Act are governed by regulations promulgated by the United States Equal Employment Opportunity Commission (“EEOC”), the current version of which are set forth at 29 C.F.R. §§ 1614.101 et seq. (1993). These regulations establish a comprehensive system to resolve discrimination claims administratively. This administrative mechanism serves two vital purposes: (1) “giv[ing] the administrative agency the opportunity to investigate, mediate and take remedial action,” Stewart v. INS, 762 F.2d 193,198 (2d Cir.1985); and (2) “encouraging] settlement of discrimination disputes through conciliation and voluntary compliance,” Miller v. Inter. Tel. and Tel. Corp., 755 F.2d 20," }, { "docid": "13736821", "title": "", "text": "of plaintiffs’ claims. Specifically, Rudolph’s state law claims relate to the plaintiff’s claim of failure to disclose a latent defect. Rudolph alleges that if plaintiffs prove that Rudolph should have known of the existence of hazardous substances on the property in question, or should have informed plaintiffs of the existence of the substances, Hough/Loew’s breach of its duty to inform Rudolph of any adverse conditions on the property caused the failure. Rudolph contends that the duty arose by virtue of Hough/Loew’s position as equitable owner and exclusive manager and developer of the property. Thus, Rudolph seeks indemnification for any liability imposed on them for failing to disclose the defects. Despite our doubts about the ultimate success of this position, it would be inappropriate to deny Rudolph the opportunity to establish the necessary facts to support its claim. Hough/Loew also argues that Rudolph’s claim for indemnification fails to state a claim upon which relief can be granted. F.R.Civ.P. 12(b)(6) instructs a court to dismiss a case for failure to state a cause of action only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The issue is not whether the third-party plaintiff will ultimately prevail, but whether it is entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Because granting such a motion results in a determination on the merits at such an early stage of third-party plaintiffs case, “ ‘we must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the [third-party] plaintiff,’ and determine whether, under any reasonable reading of the pleadings, the [third-party] plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 664-65 (3d Cir.1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985)), cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 808" }, { "docid": "20987588", "title": "", "text": "Willis, 789 S.W.2d 307, 312 (Tex.App.—Houston [14th Dist.] 1990, writ denied). The Texas Supreme Court has noted that the tort of breach of the duty of good faith and fair dealing has been found only in certain “special relationships,” and has expressly “declined to recognize a general duty of good faith and fair dealing in the employer-employee relationship.” Federal Express Corp., 846 S.W.2d at 284 n. 1. Hence, summary judgment is appropriate as to this claim. B. Vera Patton’s Claims 1. The Standard for Dismissal under Rule 12(b)(6) A motion to dismiss under Fed. R.Civ.P. 12(b)(6) tests only the formal sufficiency of the statements of the claims for relief. It is not a procedure for resolving contests about the facts or the merits of the case. In ruling on a motion to dismiss, the court must take the plaintiff’s allegations as true, view them in a light most favorable to her, and draw all inferences in her favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); see also Capital Parks, Inc. v. Southeastern Advertising & Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir.1994); Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284-85 (5th Cir. 1993). Moreover, the court may not look beyond the four corners of the plaintiffs pleadings. McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir.1992). Thus, the motion must be denied unless it appears to a certainty that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995); In re U.S. Abatement Corp., 39 F.3d 556, 559 (5th Cir.1994); ALX El Dorado, Inc. v. Southwest Sav. & Loan Ass’n, 36 F.3d 409, 410 (5th Cir.1994); McCartney, 970 F.2d at 47. 2. Title VII and TCHRA Claims [99,100] “Title VII actions against employers for discriminatory employment" }, { "docid": "10591879", "title": "", "text": "him to relief.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A district court must accept any and all reasonable inferences derived from those facts. Glenside West Corp. v. Exxon Co., U.S.A., 761 F.Supp. 1100, 1107 (D.N.J.1991); Gutman v. Howard Sav. Bank, 748 F.Supp. 254, 260 (D.N.J.1990). Further, the court must view all allegations in the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). It is not necessary for the plaintiff to plead evidence, and it is generally not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir.1977); In re Midlantic Corp. Shareholder Litigation, 758 F.Supp. 226, 230 (D.N.J.1990). The question before the court is not whether plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In other words, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the non-movant, plaintiffs allegations state a legal claim. Markowitz, 906 F.2d at 103. III. DISCUSSION The issue presented by this motion turns on the statutory definition of “employer” under the FMLA. When called upon to interpret a statute, courts must always begin with the statute’s plain language. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Where “the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent,’ ” a court cannot look farther. Id. (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Subsection (4) of Section 2611 provides, in full:" }, { "docid": "15712774", "title": "", "text": "the Due Process Clause of the Fourteenth Amendment to the United States Constitution (invoked through § 1983). Complaint, MI 41-42. Count IV asserts that the governmental defendants violated her rights, as secured by various sections of the Constitution of the Commonwealth of Pennsylvania. Complaint, ITU 43-44. Count V seeks attorney’s fees from the governmental defendants pursuant to 42 U.S.C. § 1988. Complaint, ¶¶ 45-46. Counts VI and VII proceed against Meridian Bancorp (“Meridian”). Count VI states that Meridian breached its duty to provide appropriate safety measures (or, alternatively, to warn in case of their absence) to protect Coffman, a business invitee. Complaint, ¶¶ 47-52. Count VII states that, by failing to provide Coffman with assistance, Meridian negligently breached its duty to aid Coffman, a duty stemming from Meridian’s holding its premises open for business purposes. Complaint, ¶¶ 53-57. Jurisdiction rests upon 28 U.S.C. § 1343 for the federal claims, with the state law claims pendent. The governmental defendants have moved to dismiss all counts of the complaint. II. DISCUSSION Under Fed.R.Civ.P. 12(b)(6), “[t]he applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff could prove any set of facts in support of his claim that would entitle the plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In cases brought under 42 U.S.C. § 1983, the pleading requirements are somewhat stricter than usual. The Court of Appeals “ ‘has consistently demanded that a civil rights complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs.’ ” Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d" }, { "docid": "20145153", "title": "", "text": "facts which could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Unger, 928 F.2d at 1395 (3d Cir); Markowitz, 906 F.2d at 103; Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). However, “a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 102; accord Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Unger, 928 F.2d at 1395; Angelastro v. Prudential-Bache Secur., Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). Additionally, the Supreme Court has stated that a federal court reviewing the sufficiency of the complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); see also Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir. 1985). B. Eleventh Amendment Immunity The Eleventh Amendment states: 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. U.S. Const. Amend. XI. Well established law governs application of the Eleventh Amendment. Feeney, 495 U.S. at 304, 110 S.Ct. at 1872. As the Supreme Court has recently stated: Since Hans v. Louisiana, 134 U.S. 1 [10 S.Ct. 504, 33 L.Ed. 842] (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it affirms: that the" }, { "docid": "21438581", "title": "", "text": "v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) Annis v. County of Westchester, N.Y., 36 F.3d 251, 253 (2d Cir.1994)). In applying this standard, a district court must “read the facts alleged in the complaint in the light most favorable” to the plaintiff, and accept these allegations as true. H.J. Inc. at 249, 109 S.Ct. at 2906; Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir. 1994); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (citing Fed. R. Civ.P. 8(a)(2) to demonstrate liberal system of ‘notice pleading’ employed by the Federal Rules of Civil Procedure). The court’s duty merely is “to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980) accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The appropriate inquiry, therefore, is not “whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236, 94 S. Ct. at 1686; Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir.1991) (plaintiff is not compelled to prove his case at the pleading stage). Additionally, it is not required that a claimant set out in detail the facts upon which he or she bases a claim, but only a statement of his or her claim that will give defendant “fair notice of what [the] claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Therefore, where a complaint is filed that charges each element necessary to recover, dismissal of the case for" }, { "docid": "9770751", "title": "", "text": "Chief of Police Dale Repp, and various unknown officers of the City of Pottsville Police Department. Plaintiff also asserts a state law survival action and brings state law claims of wrongful death against above defendants. Complaint, ¶27, 31, 45, 49, 63, 67. II. MOTION TO DISMISS STANDARD A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). The Rule 12(b)(6) motion does not attack the merits of the case, but merely challenges the pleader’s failure to state a claim properly. 5a C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1364, at 340 (1990). In deciding a 12(b)(6) motion, the court must determine whether plaintiffs complaint sets forth sufficient allegations to establish a claim for relief. The court must accept all allegations in the complaint at “face value” and construe them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir.1985). Generally, the complaint must set forth enough information to outline the elements of a claim or to permit inferences to be drawn that these elements exist. Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir.1988). The court can dismiss plaintiffs complaint “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80, 84 (1957)). Conelusory allegations are not acceptable, however, where no facts are alleged to support the conclusion or where the allegations are contradicted by the facts themselves. Id. In addition to the above general requirements, courts have set forth heightened specificity requirements for pleadings in Section 1983 claims. The dual policy concerns of protecting state officials" }, { "docid": "13736822", "title": "", "text": "it appears to a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The issue is not whether the third-party plaintiff will ultimately prevail, but whether it is entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Because granting such a motion results in a determination on the merits at such an early stage of third-party plaintiffs case, “ ‘we must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the [third-party] plaintiff,’ and determine whether, under any reasonable reading of the pleadings, the [third-party] plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 664-65 (3d Cir.1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985)), cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). Hough/Loew contends that Rudolph does not have a contractual right of indemnity because the relevant provision provides no basis for indemnification or contribution. The indemnity clause of the agreement provides as follows: [Hough] Loew agrees to indemnify and hold harmless [Rudolph] Partnership from any claims, suits, or damages which may arise due to Loew’s actions in developing said premises. Although on its face it may appear that “actions in developing” do not include a duty to discover defects in the property, the contract could, depending on the circumstances, permit a broader interpretation. It would be inappropriate at this stage to allow only for the most narrow construction of the contract. Hough/Loew also asserts that Rudolph has no basis for asserting a claim for common law indemnification. Pennsylvania law is clear that a party who is secondarily liable may recover from one who is primarily liable to plaintiff. Common law right of indemnity is a fault-shifting mechanism, available to a defendant who is held liable to a plaintiff by operation of law, but who seeks" }, { "docid": "22451287", "title": "", "text": "of the United States in violation of § 1985(3). Count V is a civil RICO action under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962(c) and (d). In Counts VI and VII respectively, Triad alleged tortious interference with contract and breach of contract under Illinois state law. The district court dismissed Counts I thru V with prejudice. Counts VI and VII were dismissed without prejudice. II. ANALYSIS The standard of review in determining the propriety of the grant of a motion to dismiss is well-established. As we stated in Ed Miniat, Inc. v. Globe Life Insurance Group, Inc., 805 F.2d 732, 733 (7th Cir.1986), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987), all well-pleaded facts in the plaintiffs complaint must be taken as true. Moreover, as the Supreme Court admonished in Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974): When a federal court reviews a sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits. Thus, a motion to dismiss for a failure to state a claim can be granted only if it appears beyond doubt that the plaintiff could prove no set of facts entitling him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). Counts I — III of Triad’s amended complaint pray for relief under the provisions of 42 U.S.C. § 1983. Section 1983, however, does not by itself confer any substantive rights. Rather, it is a remedial provision to- be employed only in the event of the deprivation of some right, privilege, or immunity" } ]

[ { "docid": "6020124", "title": "", "text": "excuses, but not unemployed.” This contention is quite less than meritless. The defendants next challenge the district judge’s decision to admit two of Robert Lewis’ statements into evidence. On May 20, 1994, Lewis talked to an IRS agent and an Illinois state trooper, expressing his willingness to cooperate. On June 9, two days after he was secretly indicted, Lewis and his attorney talked again, this time only to the IRS agent. The government sought to introduce portions of these statements, and the defense objected. The judge admitted the statements but ordered references to Lewis’ co-eOnspirators, as required by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), deleted. The judge also gave a proper limiting instruction on the use of the statements. The defendants challenge the district court’s ruling on four grounds. First, they claim the statements were inadmissible under Federal Rule of Evidence 410(4) and Federal Rule of Criminal Procedure 11(e)(6) because they were made during plea negotiations. Second, the defendants contend the statements were made involuntarily. Third, they assert that the attorney who accompanied Lewis on June 9 was ineffective. Fourth, they argue the statements were inadmissible hearsay because they were not made in furtherance of the conspiracy. None of these arguments are persuasive. First, Rule 410(4) and Rule 11(e)(6) only apply to statements made to government attorneys. They do not cover those made to law enforcement agents. United States v. Springs, 17 F.3d 192, 195 (7th Cir.1994) (interpreting Fed.R.Crim.P. 11(e)(6)); United States v. Aponte-Suarez, 905 F.2d 483, 493 (1st Cir.1990) (interpreting Fed.R.Evid. 410(4)). Second, the district court thought the defendants’ claim that the statements were involuntary was raised too late. This was certainly understandable because the defendants never filed a motion to suppress before trial and did not even object to the admissibility of the statements until late in the government’s case. While that seems like a legitimate reason’ not to address the issue, the argument also goes nowhere on the merits. Lewis was not under arrest at either meeting when statements were made, he signed a Miranda waiver at the initial" } ]

[ { "docid": "22674296", "title": "", "text": "are subject to ethical rules of rhetorical conduct, it fails completely to acknowledge that we have long emphasized that a representative of the United States Government is held to a higher standard of behavior: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . “. . . Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U. S. 78, 88 (1935). Accord, Viereck v. United States, 318 U. S. 236, 248 (1943). Cf. ABA Model Rules of Professional Conduct, Rule 3.8 comment (1984) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate”); ABA Model Code of Professional Responsibility EC 7-13 (1980) (prosecutor owes a “special duty”); ABA Standard for Criminal Justice 3-5.8, p. 3-88 (2d ed. 1980). I believe the Court trivializes these high standards by suggesting that a violation may be overlooked merely because the prosecutor decided sua sponte that he had to “right the scale.” Moreover, the Court’s suggestion that lower courts should evaluate prosecutorial misconduct to determine whether it was “reasonable]” and “necessary to ‘right the scale,’” ante, at 12, 14, is palpably inconsistent with the Court’s conclusion that such misconduct “constitute^] error.” Ante, at 14; see also ante, at 11, 14, 16-20. As the Court observes, prosecu-torial rhetoric of the sort in this case has “no place in the administration of justice and should neither be permitted nor rewarded.” Ante, at 9. Such errors in appropriate cases might be determined to be harmless, but it is a contradiction in terms to suggest they might be “reasonable]” or “necessary to ‘right the scale.’” Ante, at 12, 14. There was certainly nothing “reasonable]” in this case about the prosecutor’s responses" }, { "docid": "23514591", "title": "", "text": "against the defendant who was a participant in the plea discussions. Fed.R.Evid. 410 (emphasis added). See also United States v. Brumley, 217 F.3d 905, 910 (7th Cir.2000) (finding that the exclusion of statements made during plea discussions applies only to statements made to government attorneys and not to statements made to law enforcement agents); United States v. Lewis, 117 F.3d 980, 984 (7th Cir.), cert. denied, 522 U.S. 1035, 118 S.Ct. 642, 139 L.Ed.2d 620 (1997) (same). Agent Craft was not an attorney for a prosecuting authority and did not purport to be speaking on behalf of the United States Attorney. To the contrary, Agent Craft made clear that he could, at most, recommend a plea agreement to Moreno-Taxman and that she trusted him. He made the general kinds of statements that law enforcement agents commonly make, that cooperation will likely lead to a better outcome for the defendant. See Brumley, 217 F.3d at 910. Martinez himself, when he interrupted Agent Craft to recite his Miranda rights, stated that he knew that anything he said could be used against him. In short, nothing either the prosecutors or Agent Craft did or said to Martinez led him to reasonably believe that the April 30 meeting was a plea discussion. The court was correct to deny the motion to suppress on that basis. Martinez also challenged the use of his April 30 statements because, he argued, they were obtained in contravention of the prosecutors’ ethical obligations. Assistant United States Attorneys practicing in Wisconsin are subject to the dictates of Wisconsin Supreme Court Rule 3.8(b). That Rule provides that the prosecutor in a criminal case must undertake “reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.” Wis. Sup.Ct. R. 20:3.8(b). Martinez contends that, although prosecutors told Martinez he had the right to an attorney, they did not inform him about the procedure for obtaining one or give him a reasonable opportunity to obtain counsel. He argues that suppression of his statements is the" }, { "docid": "23514589", "title": "", "text": "is a mixed question of law and fact. Brown, 232 F.3d at 591-92. See also United States v. Morgan, 91 F.3d 1193, 1195 (8th Cir.1996), cert. denied, 519 U.S. 1118, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997) (district court’s ultimate determination that a statement was given in the course of plea negotiations is a mixed question of law and fact reviewed de novo). Martinez argues that he spoke at the meeting only because Moreno-Taxman assured him everything was off the record, because Agent Craft told him on April 28 that he could get him a ten-year deal, and because Moreno-Taxman discussed his connection to several homicides. Once Moreno-Taxman told him everything was on the record, he asked for time to think it over and the meeting ended. Finally, Agent Craft’s remarks to him on April 28 and in the car on April 30 led him to believe that a plea bargain might be discussed at the meeting. All of this, he claims, demonstrated a subjective belief that he was engaged in a plea discussion. The district court found that Moreno-Taxman never told Martinez that his remarks would be off the record. Martinez offers no reason to disturb this finding of fact and we see no reason to do so. There is nothing about Moreno-Taxman’s statements connecting Martinez to several homicides that would lead him to believe he was engaged in a plea discussion rather than an interrogation. The fact that Martinez asked for time to think things over after Moreno-Taxman emphatically told him everything was on the record tells us nothing about whether he thought he was engaged in plea negotiations. That leaves Agent Craft’s statements. Because the district court found Agent Craft was generally not a credible witness, we too will assume that Agent Craft made the statements that Martinez claims, he made. Federal Rule of Evidence 410 specifies that “any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn” is generally not admissible" }, { "docid": "23514584", "title": "", "text": "government in its case against John Gotti. Martinez believed that Agent Craft raised the Gravano case in order to obtain Martinez’s cooperation. Agent Craft denied talking to Martinez about Gravano on April 28 but acknowledged that he discussed Gravano with other Latin Kings, telling them that Gravano cooperated and then received leniency. According to Martinez, Agent Craft also told him that Agent Craft might be able to get him a ten year deal, and that Assistant U.S. Attorney Karine Moreno-Taxman trusted Agent Craft and would likely listen to any recommendation he made. Between April 28 and April 30, Larsen determined that Martinez’s lawyers represented him only in the appeal of his conviction in the Northern District of Indiana and not on potential charges in the Eastern District of Wisconsin. Prosecutors then called for an April 30 meeting with Martinez at the U.S. Attorney’s office. According to Larsen, the purpose of the meeting was to explore Martinez’s potential cooperation. Agent Craft testified that prosecutors were present in the hope that Martinez might offer to confess and incriminate others in exchange for a deal that only prosecutors could offer. The April 30 meeting lasted only ten or fifteen minutes. Agent Craft brought Martinez to the U.S. Attorney’s office where they were joined by Larsen and Moreno-Taxman. Martinez testified that on the drive over from the jail, Agent Craft told him several times, “Don’t worry about the numbers, you’ll be satisfied with the outcome.” When Martinez stated he would not cooperate if it meant a double-digit sentence, Agent Craft replied that they might be able to have his sentence run concurrently with the sentence he was then serving. Once at the meeting, according to Martinez, when he asked Agent Craft why they were meeting, Agent Craft replied, “if you cooperate, we can make this disappear.” Because Larsen corroborated Agent Craft’s denial regarding this statement, the court found that Agent Craft made no such statement. Instead, the court found that Moreno-Taxman asked Agent Craft to read Martinez his Miranda rights. When Agent Craft began to inform Martinez about his rights, Martinez interrupted him, saying" }, { "docid": "16431548", "title": "", "text": "client unless: (1) the prosecutor reasonably believes: (i) the information sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; [and] (iii) there is no other feasible alternative to obtain the information; and (2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding. Comment Paragraph (f) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship. The prosecutor is required to obtain court approval for the issuance of the subpoena after an opportunity for an adversarial hearing is afforded in order to assure an independent determination that the applicable standards are met. ABA Standing Comm, on Ethics and Profl Responsibility and Section 'of Criminal Justice, Report 118, at 1 (Feb.1990). After the Third Circuit struck down a bar rule patterned on Model Rule 3.8(f), see Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir.1992), the ABA retreated; it removed the judicial preapproval requirement by deleting both subparagraph (2) and the second sentence of the comment. See ABA Standing Comm, on Ethics and Profl Responsibility, Report 101, at 1 (Aug. 1995). On June 9, 1997, the SJC amended the Massachusetts Code of Professional Conduct to replace PF 15 with the (discarded) 1990 version of Model Rule 3.8(f), omitting the second sentence of the comment, but including the rescinded subparagraph (2). See S.J.C. R. 3:07, Rule 3.8(f) & cmt. 4. The result was to alter PF 15 in three important respects: extending it to trial as well as grand jury subpoenas; providing for an “adversarial proceeding” in advance of the issuance of an attorney subpoena; and promulgating three substantive standards for judicial preapproval. B. The Instant Litigation. By local rule, attorneys practicing in the United States District Court for the District of Massachusetts must adhere to the ethical rules adopted by the SJC, unless a specific exception obtains. See D. Mass. R. 83.6(4)(B). On November 17, 1997, the United States" }, { "docid": "23514593", "title": "", "text": "appropriate remedy for this alleged ethical violation. The district court rejected the government’s argument that Rule 3.8(b) does not apply until a suspect is formally indicted. The court found that the prosecutors advised Martinez of his right to an attorney but failed to advise him of the procedure for obtaining counsel and did not give him an opportunity to do so, both contrary to Rule 3.8(b)’s requirements. The court declined, however, to suppress the evidence obtained during the April 30 meeting. Acknowledging the dearth of authority interpreting any rules governing prosecutors, the court found that any violation was not egregious, highly improper or unconscionable. The court therefore declined to exercise its supervisory powers to suppress the evidence. We are doubtful that the prosecutors here violated any ethical rules. They carefully investigated whether Martinez was represented by counsel and insisted on a complete reading of his Miranda rights even after he interrupted the recitation to boast that he knew his rights better than Agent Craft. He told the prosecutors that he was smart enough to decide what to do on his own. He then agreed to speak without a lawyer after being told he had a right to an attorney and that one would be appointed for him if he could not afford to hire a lawyer himself. Neither the district court nor the parties nor this court could find any authority requiring anything more specific of the prosecutors than what they did here, and Rule 3.8(b) itself is somewhat ambiguous about its application in the setting of a pre-indictment, custodial interrogation. But we need not decide conclusively whether the district court was correct in finding an ethical violation because the court did not abuse its discretion in declining to suppress the statements. United States v. Johnson, 327 F.3d 554, 562 (7th Cir.2003), cert. denied, 540 U.S. 1111, 124 S.Ct. 1087, 157 L.Ed.2d 900 (2004) (reviewing for abuse of discretion a court’s exercise of its inherent powers). Even if this was an ethical lapse, and again, we are not deciding that issue today, we see no reason to require suppression. Nothing" }, { "docid": "22351116", "title": "", "text": "that are at least as demanding should also be enforced. “After a jury has been impaneled and a criminal trial is in progress, it would obviously be improper for the prosecutor to conduct a private interview with the defendant for the purpose of obtaining evidence to be used against him at trial. By ‘private interview’ I mean, of course, an interview initiated by the prosecutor, or his or her agents, without notice to the defendant’s lawyer and without the permission of the court.” (Footnotes omitted.) As a matter of ethics, the conduct of the officer here was plainly improper. Under the Michigan Rules of Professional Conduct, as under the ABA’s Code of Professional Responsibility, a prosecutor may not talk to the defendant without first giving notice to his opposing counsel. See Mich. Rules of Professional Conduct, Rule 4.2 (1989); ABA Model Code of Professional Responsibility DR 7-104(A)(l) (1980). That ethical restraint also applies to agents of the prosecutor. See Mich. Rules of Professional Conduct, Rule 5.3 (1989); see also Tr. of Oral Arg. 11-12. Indeed, the House of Delegates of the American Bar Association has recently stressed that the requirements of DR 7-104(A)(l) are applicable to government prosecutors. ABA House of Delegates Report No. 301 (approved Feb. 12-13, 1990). “The question presented in this case is whether the prosecution may use a statement taken in violation of the Jackson prophylactic rule to impeach a defendant’s false or inconsistent testimony. We hold that it may do so.” Ante, at 345-346. “[W]e need not consider the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and voluntary waiver of the right to counsel.” As the Court acknowledges, ante, at 347, and n. 2, the entire basis for the prosecutor’s attempt to impeach respondent rested upon his failure to mention three details at his deposition. Respondent testified that he and the victim had smoked cocaine in the victim’s house on the night of the incident and that another man and woman had been present during part of the time. App. 5-6. He testified at trial that he" }, { "docid": "5776909", "title": "", "text": "evidence regarding their clients have, nevertheless, continued to increase. II. The Present Litigation In January 1984, the Rhode Island Supreme Court established the Committee to Study the Rules of Professional Conduct (the “Rules Committee”) to study and provide recommendations regarding whether Rhode Island should adopt the ABA’s Model Rules of Professional Conduct.' In February 1987, the Rules Committee published a list of proposed rules and solicited comment from all members of the Rhode Island Bar. The Rhode Island Supreme Court later held a public hearing and received additional comments on the proposed rules. On November 1, 1988, the Rhode Island Supreme Court adopted the proposed Rules of Professional Conduct as an amendment to Rhode Island Supreme Court Rule 47. Among the rules adopted was Rule 3.8(f), which provides: Rule 3.8. Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall: * * * * * * (f) not, without prior judicial approval, subpoena a lawyer for the purpose of compelling the lawyer to provide evidence concerning a person who is or was represented by the lawyer when such evidence was obtained as a result of the attorney-client relationship. On April 20, 1989, the United States District Court for Rhode Island issued an order incorporating the Rhode Island Rules of Professional Conduct, including Rule 3.8(f), into its local rules (federal rule hereinafter referred to as “Local Rule 3.8(f)”). On August 2, 1991, the United States Attorney for Rhode Island petitioned the Rhode Island Supreme Court requesting that the court amend the state rule to waive its application to federal prosecutors practicing before Rhode Island’s federal courts. The state court invited briefs from the United States Attorney and interested members of the Rhode Island Bar and, after a hearing, denied the petition to amend. The United States Attorney then wrote to the United States District Court for Rhode Island requesting that it exempt federal prosecutors from Local Rule 3.8(f). When the district court denied that request, the United States Attorney petitioned this court for a writ of mandamus requiring the district court to exempt federal prosecutors from the local rule." }, { "docid": "23514592", "title": "", "text": "could be used against him. In short, nothing either the prosecutors or Agent Craft did or said to Martinez led him to reasonably believe that the April 30 meeting was a plea discussion. The court was correct to deny the motion to suppress on that basis. Martinez also challenged the use of his April 30 statements because, he argued, they were obtained in contravention of the prosecutors’ ethical obligations. Assistant United States Attorneys practicing in Wisconsin are subject to the dictates of Wisconsin Supreme Court Rule 3.8(b). That Rule provides that the prosecutor in a criminal case must undertake “reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.” Wis. Sup.Ct. R. 20:3.8(b). Martinez contends that, although prosecutors told Martinez he had the right to an attorney, they did not inform him about the procedure for obtaining one or give him a reasonable opportunity to obtain counsel. He argues that suppression of his statements is the appropriate remedy for this alleged ethical violation. The district court rejected the government’s argument that Rule 3.8(b) does not apply until a suspect is formally indicted. The court found that the prosecutors advised Martinez of his right to an attorney but failed to advise him of the procedure for obtaining counsel and did not give him an opportunity to do so, both contrary to Rule 3.8(b)’s requirements. The court declined, however, to suppress the evidence obtained during the April 30 meeting. Acknowledging the dearth of authority interpreting any rules governing prosecutors, the court found that any violation was not egregious, highly improper or unconscionable. The court therefore declined to exercise its supervisory powers to suppress the evidence. We are doubtful that the prosecutors here violated any ethical rules. They carefully investigated whether Martinez was represented by counsel and insisted on a complete reading of his Miranda rights even after he interrupted the recitation to boast that he knew his rights better than Agent Craft. He told the prosecutors that he was smart enough to decide" }, { "docid": "23514586", "title": "", "text": "that he knew his rights better than Agent Craft. Martinez then recited several of his Miranda rights from memory. Agent Craft then read Martinez his Miranda rights in full and asked him if he wanted to speak without an attorney present. Martinez agreed to do so. Moreno-Taxman then told Martinez that she had evidence linking him to at least three homicides and gave Martinez an account of the murder of Angelique Morales. This prompted Martinez to correct parts of her account that he believed were mistaken, thereby implicating himself in the murder. At some point in the discussion, Martinez asked if he could speak off the record and Moreno-Taxman told him emphatically that everything was on the record. Martinez then asked for some time to think about it, and the meeting ended. Larsen testified that no promises or threats were made during the meeting, nor was there any plea bargaining or discussion of plea bargaining. In fact, Larsen attested, prosecutors had not even discussed the possibility of a plea bargain among themselves before the meeting. The district court noted that Agent Craft’s credibility had been seriously undermined by his conduct in an unrelated case in another state. The court therefore chose not to credit Agent Craft’s testimony except where it was consistent with the testimony of a credible witness such as Larsen. The court found that, even assuming that Agent Craft discussed the Gravano case with Martinez on April 28, Martinez did not have an objective reason to believe he was participating in plea negotiations on April 30. The court remarked that “[c]omments that things might go better for a suspect if he or she cooperates do not convert a suspect’s subsequent efforts to cooperate, even if in hope of gaining leniency by a plea, into plea bargaining discussions.” United States v. Acosta, 111 F.Supp.2d 1082, 1091 (N.D.Ill.2000). The court noted that Agent Craft’s statement about getting Martinez a ten-year deal demonstrated to Martinez that Agent Craft did not himself have the authority to engage in plea bargaining because he indicated he would simply make a recommendation to Moreno-Taxman. The" }, { "docid": "23514590", "title": "", "text": "district court found that Moreno-Taxman never told Martinez that his remarks would be off the record. Martinez offers no reason to disturb this finding of fact and we see no reason to do so. There is nothing about Moreno-Taxman’s statements connecting Martinez to several homicides that would lead him to believe he was engaged in a plea discussion rather than an interrogation. The fact that Martinez asked for time to think things over after Moreno-Taxman emphatically told him everything was on the record tells us nothing about whether he thought he was engaged in plea negotiations. That leaves Agent Craft’s statements. Because the district court found Agent Craft was generally not a credible witness, we too will assume that Agent Craft made the statements that Martinez claims, he made. Federal Rule of Evidence 410 specifies that “any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn” is generally not admissible against the defendant who was a participant in the plea discussions. Fed.R.Evid. 410 (emphasis added). See also United States v. Brumley, 217 F.3d 905, 910 (7th Cir.2000) (finding that the exclusion of statements made during plea discussions applies only to statements made to government attorneys and not to statements made to law enforcement agents); United States v. Lewis, 117 F.3d 980, 984 (7th Cir.), cert. denied, 522 U.S. 1035, 118 S.Ct. 642, 139 L.Ed.2d 620 (1997) (same). Agent Craft was not an attorney for a prosecuting authority and did not purport to be speaking on behalf of the United States Attorney. To the contrary, Agent Craft made clear that he could, at most, recommend a plea agreement to Moreno-Taxman and that she trusted him. He made the general kinds of statements that law enforcement agents commonly make, that cooperation will likely lead to a better outcome for the defendant. See Brumley, 217 F.3d at 910. Martinez himself, when he interrupted Agent Craft to recite his Miranda rights, stated that he knew that anything he said" }, { "docid": "16431547", "title": "", "text": "sought was (a) not privileged, (b) “essential” to the government’s investigation, and (c) unobtainable from any “other feasible alternative.” Id. When the United States District Court for the District of Rhode Island incorporated the state standard into its local rules on April 20, 1989, the United States Attorney for that district challenged it. In Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir.1995), a panel of this court upheld the local rule, albeit strongly suggesting that a different result would obtain were the criteria limned in the comment embedded in the text of the rule itself (and, thus, made mandatory rather than precatory). See id. at 1357-58 & n. 12. We temporarily shift our focus to the national stage. In 1990, the American Bar Association (the ABA) amended Rule 3.8 of the Model Rules of Professional Conduct by adding a new paragraph (f) and comment: The prosecutor in a criminal case shall: (f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless: (1) the prosecutor reasonably believes: (i) the information sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; [and] (iii) there is no other feasible alternative to obtain the information; and (2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding. Comment Paragraph (f) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship. The prosecutor is required to obtain court approval for the issuance of the subpoena after an opportunity for an adversarial hearing is afforded in order to assure an independent determination that the applicable standards are met. ABA Standing Comm, on Ethics and Profl Responsibility and Section 'of Criminal Justice, Report 118, at 1 (Feb.1990). After the Third Circuit struck down a bar rule patterned on Model Rule 3.8(f), see Baylson v. Disciplinary Bd., 975 F.2d 102 (3d" }, { "docid": "23514585", "title": "", "text": "incriminate others in exchange for a deal that only prosecutors could offer. The April 30 meeting lasted only ten or fifteen minutes. Agent Craft brought Martinez to the U.S. Attorney’s office where they were joined by Larsen and Moreno-Taxman. Martinez testified that on the drive over from the jail, Agent Craft told him several times, “Don’t worry about the numbers, you’ll be satisfied with the outcome.” When Martinez stated he would not cooperate if it meant a double-digit sentence, Agent Craft replied that they might be able to have his sentence run concurrently with the sentence he was then serving. Once at the meeting, according to Martinez, when he asked Agent Craft why they were meeting, Agent Craft replied, “if you cooperate, we can make this disappear.” Because Larsen corroborated Agent Craft’s denial regarding this statement, the court found that Agent Craft made no such statement. Instead, the court found that Moreno-Taxman asked Agent Craft to read Martinez his Miranda rights. When Agent Craft began to inform Martinez about his rights, Martinez interrupted him, saying that he knew his rights better than Agent Craft. Martinez then recited several of his Miranda rights from memory. Agent Craft then read Martinez his Miranda rights in full and asked him if he wanted to speak without an attorney present. Martinez agreed to do so. Moreno-Taxman then told Martinez that she had evidence linking him to at least three homicides and gave Martinez an account of the murder of Angelique Morales. This prompted Martinez to correct parts of her account that he believed were mistaken, thereby implicating himself in the murder. At some point in the discussion, Martinez asked if he could speak off the record and Moreno-Taxman told him emphatically that everything was on the record. Martinez then asked for some time to think about it, and the meeting ended. Larsen testified that no promises or threats were made during the meeting, nor was there any plea bargaining or discussion of plea bargaining. In fact, Larsen attested, prosecutors had not even discussed the possibility of a plea bargain among themselves before the meeting." }, { "docid": "23514588", "title": "", "text": "court found that nothing else occurred at the meeting that would give rise to a reasonable belief that the meeting was a plea bargain discussion. The court discounted the statements that Agent Craft allegedly made to Martinez because he was not a government attorney and it was clear to Martinez that, at most, Agent Craft could make a recommendation to Moreno-Taxman. On appeal, Martinez argues that he exhibited a subjective belief that he was engaging in plea discussions at the April 30 meeting and that this belief was reasonable. Statements made in the course of plea discussions with a prosecutor generally are inadmissible under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410. When reviewing a district court’s decision on a motion to suppress, we review questions of law de novo and questions of fact for clear error. United States v. Brown, 232 F.3d 589, 591 (7th Cir.2000). We review de novo the district court’s ultimate conclusion of whether the statements were made in the course of plea negotiations because the determination is a mixed question of law and fact. Brown, 232 F.3d at 591-92. See also United States v. Morgan, 91 F.3d 1193, 1195 (8th Cir.1996), cert. denied, 519 U.S. 1118, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997) (district court’s ultimate determination that a statement was given in the course of plea negotiations is a mixed question of law and fact reviewed de novo). Martinez argues that he spoke at the meeting only because Moreno-Taxman assured him everything was off the record, because Agent Craft told him on April 28 that he could get him a ten-year deal, and because Moreno-Taxman discussed his connection to several homicides. Once Moreno-Taxman told him everything was on the record, he asked for time to think it over and the meeting ended. Finally, Agent Craft’s remarks to him on April 28 and in the car on April 30 led him to believe that a plea bargain might be discussed at the meeting. All of this, he claims, demonstrated a subjective belief that he was engaged in a plea discussion. The" }, { "docid": "15343026", "title": "", "text": "the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding. ABA Standing Comm, on Ethics & Profl Responsibility, Report with Recommendation to the ABA House of Delegates No. 118, at 1 (Feb. 1990). The rule, as original ly adopted, thus consisted of two components. Subsection (e)(1) governed prosecutors’ reasonable belief about the content of the information sought — i.e., that it was not privileged, was essential, and could not be obtained from any other feasible alternative. Subsection (e)(2) imposed a judicial preapproval requirement before a prosecutor could obtain an attorney subpoena. Several states promulgated versions of Model Rule 3.8(e), and legal challenges to these rules produced conflicting outcomes. The Third Circuit, for example, concluded that the judicial preapproval requirement in Pennsylvania’s version of Model Rule 3.8(e) conflicted with federal rules governing the issuance of subpoenas, and held that the enforcement of the rule against federal prosecutors was preempted. See Baylson v. Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102, 111-12 (3d Cir. 1992). In contrast, the First Circuit found that Rhode Island’s version of the rule created “no conflict with the Supremacy Clause.” Whitehouse v. U.S. Dist. Court for Dist. of R.I., 53 F.3d 1349, 1365 (1st Cir. 1995). Before our court, the United States challenged Colorado’s adoption of Model Rule 3.8(e). Specifically, we were called upon to review the district court’s dismissal of the United States’s action on jurisdictional grounds — that is, “[t]he district court dismissed the complaint for lack of subject matter jurisdiction, stating that the United States did not have standing because it did not allege that federal prosecutors had suffered any actual or imminent injury from application of the rules.” United States v. Colo. Supreme Court (“Colorado Supreme Court I”), 87 F.3d 1161, 1163 (10th Cir. 1996). We reversed, however, concluding that, even though no federal prosecutor had been sanctioned under Colorado’s rule, the potential that it would “interfere with federal prosecutors in their conduct of criminal proceedings and change the nature of the federal grand jury in Colorado” was a sufficient injury in fact to render the case justiciable." }, { "docid": "23514582", "title": "", "text": "not be overstated. We held that, because such testimony was admissible for limited purposes, the lower court’s cautionary instructions were key to determining whether reversible error occurred. Because the court in that case gave appropriate cautionary instructions and the defendants raised no objections to those instructions, we found there was no reason for reversal. Thomas, 774 F.2d at 809-10. The same analysis applies here. The court gave appropriate cautionary instructions and Vasquez has not objected to those instructions. We find no abuse of discretion. F. Pedro Martinez complains that the district court erred when it failed to suppress a statement he made during a meeting which he reasonably believed was a plea negotiation. He also contends that the court should have suppressed his statements because they were obtained in violation of the prosecutor’s ethical obligations. A magistrate judge conducted evidentiary hearings on Martinez’s motion to suppress and issued a report and recommendation. The district court then reviewed those parts of the report and recommendation to which objections were filed. We recount the facts as the district court found them. In April 1998, Martinez was serving a 157-month sentence in federal prison in Indiana for a conviction on an unrelated offense. On April '27, 1998, he was brought to the Eastern District of Wisconsin to appear in a line-up. FBI Special Agent Daniel Craft decided to interview Martinez on matters related to the instant case, and brought him to the U.S. Attorney’s office in Wisconsin on April 28, 1998. However, Assistant U.S. Attorney Chris Larsen determined that Martinez could not be interviewed until Larsen deter mined whether Martinez was represented by a lawyer. For a one-hour period that day, Agent Craft stayed in a conference room with Martinez, and Larsen went into the room two or three times during that period. According to Martinez, Agent Craft used this opportunity to tell Martinez about Sammy “The Bull” Gravano, a well-known underboss of the Gambino crime family. Agent Craft described Gra-vano to Martinez as a mobster who confessed to nineteen homicides but served only five years in prison because he cooperated with the" }, { "docid": "15343025", "title": "", "text": "Faced with what was perceived to be an “increasing incidence of grand jury and trial subpoenas directed toward attorneys defending criminal cases,” ABA Crim. Justice Section, Report with Recommendation to the ABA House of Delegates No. 122B, at 2 (Feb. 1988), the ABA issued Model Rule 3.8(e) in 1990 “to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship,” Model Rules of Profl Conduct r. 3.8(e) cmt. 4 (Am. Bar Ass’n 2015). As adopted, Model Rule 3.8(e) stated: The prosecutor in a criminal case shall: ([e]) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless: (1) the prosecutor reasonably believes: (a) the information sought is not protected from disclosure by an applicable privilege; (b) the evidence sought is essential to .the successful completion of an ongoing investigation or prosecution; (c) there is no other feasible alternative to obtain the information; and (2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding. ABA Standing Comm, on Ethics & Profl Responsibility, Report with Recommendation to the ABA House of Delegates No. 118, at 1 (Feb. 1990). The rule, as original ly adopted, thus consisted of two components. Subsection (e)(1) governed prosecutors’ reasonable belief about the content of the information sought — i.e., that it was not privileged, was essential, and could not be obtained from any other feasible alternative. Subsection (e)(2) imposed a judicial preapproval requirement before a prosecutor could obtain an attorney subpoena. Several states promulgated versions of Model Rule 3.8(e), and legal challenges to these rules produced conflicting outcomes. The Third Circuit, for example, concluded that the judicial preapproval requirement in Pennsylvania’s version of Model Rule 3.8(e) conflicted with federal rules governing the issuance of subpoenas, and held that the enforcement of the rule against federal prosecutors was preempted. See Baylson v. Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102, 111-12 (3d Cir. 1992). In contrast, the First Circuit found that" }, { "docid": "5776908", "title": "", "text": "their clients. This practice changed in the 1980s as the federal government stepped up its fight against organized crime and narcotics trafficking. Most significantly, Congress passed several new federal statutes which, in the eyes of federal prosecutors, make attorneys fertile ground for eliciting incriminating information about the targets of federal investigations and prosecutions. Because service of a subpoena on an attorney implicates the attorney-client relationship, and thus raises ethical issues for prosecutors, the United States Department of Justice issued guidelines for federal prosecutors seeking to subpoena an attorney. See Executive Office for the United States Attorneys, Department of Justice, United States Attorneys’ Manual § 9-2.161(a) (1985). In addition, the American Bar Association (the “ABA”) adopted an amendment to its Model Rules of Professional Conduct creating an ethical prohibition against subpoenaing a lawyer/witness without a showing of need, an adversary hearing, and prior judicial approval. See Model Rules of Professional Conduct Rule 3.8(f), reprinted in 6 Laws. Man. on Prof. Conduct (ABA/BNA) 25, 26 (Feb. 28, 1990). The instances of federal prosecutors subpoenaing attorneys to compel evidence regarding their clients have, nevertheless, continued to increase. II. The Present Litigation In January 1984, the Rhode Island Supreme Court established the Committee to Study the Rules of Professional Conduct (the “Rules Committee”) to study and provide recommendations regarding whether Rhode Island should adopt the ABA’s Model Rules of Professional Conduct.' In February 1987, the Rules Committee published a list of proposed rules and solicited comment from all members of the Rhode Island Bar. The Rhode Island Supreme Court later held a public hearing and received additional comments on the proposed rules. On November 1, 1988, the Rhode Island Supreme Court adopted the proposed Rules of Professional Conduct as an amendment to Rhode Island Supreme Court Rule 47. Among the rules adopted was Rule 3.8(f), which provides: Rule 3.8. Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall: * * * * * * (f) not, without prior judicial approval, subpoena a lawyer for the purpose of compelling the lawyer to provide evidence concerning a person who is or was represented" }, { "docid": "23514583", "title": "", "text": "district court found them. In April 1998, Martinez was serving a 157-month sentence in federal prison in Indiana for a conviction on an unrelated offense. On April '27, 1998, he was brought to the Eastern District of Wisconsin to appear in a line-up. FBI Special Agent Daniel Craft decided to interview Martinez on matters related to the instant case, and brought him to the U.S. Attorney’s office in Wisconsin on April 28, 1998. However, Assistant U.S. Attorney Chris Larsen determined that Martinez could not be interviewed until Larsen deter mined whether Martinez was represented by a lawyer. For a one-hour period that day, Agent Craft stayed in a conference room with Martinez, and Larsen went into the room two or three times during that period. According to Martinez, Agent Craft used this opportunity to tell Martinez about Sammy “The Bull” Gravano, a well-known underboss of the Gambino crime family. Agent Craft described Gra-vano to Martinez as a mobster who confessed to nineteen homicides but served only five years in prison because he cooperated with the government in its case against John Gotti. Martinez believed that Agent Craft raised the Gravano case in order to obtain Martinez’s cooperation. Agent Craft denied talking to Martinez about Gravano on April 28 but acknowledged that he discussed Gravano with other Latin Kings, telling them that Gravano cooperated and then received leniency. According to Martinez, Agent Craft also told him that Agent Craft might be able to get him a ten year deal, and that Assistant U.S. Attorney Karine Moreno-Taxman trusted Agent Craft and would likely listen to any recommendation he made. Between April 28 and April 30, Larsen determined that Martinez’s lawyers represented him only in the appeal of his conviction in the Northern District of Indiana and not on potential charges in the Eastern District of Wisconsin. Prosecutors then called for an April 30 meeting with Martinez at the U.S. Attorney’s office. According to Larsen, the purpose of the meeting was to explore Martinez’s potential cooperation. Agent Craft testified that prosecutors were present in the hope that Martinez might offer to confess and" }, { "docid": "23514587", "title": "", "text": "The district court noted that Agent Craft’s credibility had been seriously undermined by his conduct in an unrelated case in another state. The court therefore chose not to credit Agent Craft’s testimony except where it was consistent with the testimony of a credible witness such as Larsen. The court found that, even assuming that Agent Craft discussed the Gravano case with Martinez on April 28, Martinez did not have an objective reason to believe he was participating in plea negotiations on April 30. The court remarked that “[c]omments that things might go better for a suspect if he or she cooperates do not convert a suspect’s subsequent efforts to cooperate, even if in hope of gaining leniency by a plea, into plea bargaining discussions.” United States v. Acosta, 111 F.Supp.2d 1082, 1091 (N.D.Ill.2000). The court noted that Agent Craft’s statement about getting Martinez a ten-year deal demonstrated to Martinez that Agent Craft did not himself have the authority to engage in plea bargaining because he indicated he would simply make a recommendation to Moreno-Taxman. The court found that nothing else occurred at the meeting that would give rise to a reasonable belief that the meeting was a plea bargain discussion. The court discounted the statements that Agent Craft allegedly made to Martinez because he was not a government attorney and it was clear to Martinez that, at most, Agent Craft could make a recommendation to Moreno-Taxman. On appeal, Martinez argues that he exhibited a subjective belief that he was engaging in plea discussions at the April 30 meeting and that this belief was reasonable. Statements made in the course of plea discussions with a prosecutor generally are inadmissible under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410. When reviewing a district court’s decision on a motion to suppress, we review questions of law de novo and questions of fact for clear error. United States v. Brown, 232 F.3d 589, 591 (7th Cir.2000). We review de novo the district court’s ultimate conclusion of whether the statements were made in the course of plea negotiations because the determination" } ]

[ { "docid": "15029456", "title": "", "text": "(8th Cir. 1970), holding that dynamite may be a destructive device if intended to be used as a bomb. We disagree with defendant’s contention that the explosive device used by him was beyond the reach of the statute. We could accept his conclusion only if we find that no device in which dynamite was the explosive material could constitute a statutory “destructive device” or “bomb.” The cases relied upon by defendant do not go that far. The purpose of the statute would be defeated by any interpretation which excluded from coverage homemade bombs having no lawful use simply because one of the components was dynamite, a material not in itself regulated as a firearm. Thus, while gasoline, bottles and rags all may be legally possessed, their combination into the type of home-made incendiary bomb commonly known as a Molotov cocktail creates a destructive' device. See, e. g., United States v. Tankersley, 492 F.2d 962 (7th Cir. 1974); United States v. Ross, 458 F.2d 1144 (5th Cir.), cert. den., 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972); United States v. Banks, 368 F.Supp. 1245 (D.S.D.1973); United States v. Davis, 313 F.Supp. 710 (D.Conn.1970). Similarly, a home-made time bomb is not excluded from the statute by virtue of the fact that its explosive power is derived from commercial dynamite. United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. den., 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971); see also United States v. Peterson, 475 F.2d 806 (9th Cir.), cert. den., 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 93 (1973). The uncontradicted evidence showed that the device was a small explosive bomb with a 6-inch fuse which when lit would detonate the bomb within one minute. The device was in fact detonated by a fuse lit by the defendant and thrown by the defendant into a van where the device exploded, destroying the van. Under those facts it is immaterial whether the explosive charge was composed of dynamite or some other explosive material. It is self evident that the defendant intended to and did blow up" } ]

[ { "docid": "6797721", "title": "", "text": "or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device[.] 26 U.S.C. § 5845(f). The statute further provides that the term “destructive device” does not include devices that are not designed or redesigned for use as weapons. 26 U.S.C. § 5845(f)(3). Fleischli was charged with possessing four “explosive or incendiary bombs or similar devices each consisting of a cardboard container sealed at both ends, containing a mixture of pen-taerythritol tetranintrate (PETN) powder, a non-electric blasting cap with a short length of fuse.” R. 26 at 7. Fleischli maintains that the use of the word “similar” causes a reasonable person to speculate as to how nearly a device must resemble a bomb, grenade, rocket, missile or mine in determining whether the device is encompassed by the statute. Fleischli thus contends the statute is unconstitutionally vague. The three circuits to consider this issue have all found that the statute is not unconstitutionally vague. See United States v. Markley, 567 F.2d 523, 527-28 (1st Cir.1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1578, 55 L.Ed.2d 801 (1978); United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972); United States v. Morningstar, 456 F.2d 278, 281 (4th Cir.1972), cert. denied, 409 U.S. 896, 93 S.Ct. 135, 34 L.Ed.2d 153 (1972). All three courts agreed that a person of ordinary intelligence would understand the statute to include any combination of parts intended to be used as a bomb or weapon or from which a bomb or weapon could be readily assembled. Fleischli’s device comes well within the purview of the statute. He maintains, however, that the four devices he was charged with possessing were not intended for use as weapons but rather as fireworks. He complains that the jury was not instructed that the government was required to prove the devices were designed or redesigned for use as a weapon. The jury was instructed as follows: You must determine whether any of the devices charged in Count 6 is a destructive device. If the objective design of the device" }, { "docid": "9415571", "title": "", "text": "the tax. To come within the proscription of the Act a Molotov cocktail must be a “similar device” within the meaning of § 5845(f). Obviously the definition of “destructive device” to include “any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device” is descriptive and not exhaustive. Though the statute does not in terms mention Molotov cocktails, its silence is no impediment. The devices that are enumerated have in common usage limited to anti-social purposes. By their nature they are not suited for some other innocent end. A Molotov cocktail has no purpose apart from criminal activities. It is not a device that is commonly created for legitimate purposes but the use of which may be perverted from that intended, ordinary purpose to an illegitimate end. Cf. United States v. Schofer, 310 F.Supp. 1292 (E.D.N.Y.1969). Hence, it qualifies as a “similar device.” See United States v. Coleman, 441 F.2d 1132 (5th Cir. 1971) (sub silentio); United States v. Davis, 313 F.Supp. 710 (D.Conn.1970). Turning to the claimed insufficiency of the evidence, the testimony is clear that just seconds after two Molotov cocktails struck their target Ross was seen fleeing from the vicinity of the victimized building and was apprehended by Carter who had been sitting on the front stoop of the residence next door. No other person was in sight, although Ross told his captor that if he would look around the corner “he might see two guys coming down the street behind me, they might have something to do with it.” Carter declined Ross’ invitation to investigate elsewhere. At that time he smelled gasoline on defendant’s hands. Ross attempted to show the innocence of his presence and flight by explaining that he was on his way home from a friend’s house late at night when he heard glass shattering. Considering the hour and the recent racial tension in the area (a curfew was in effect), he became scared and" }, { "docid": "17704582", "title": "", "text": "decision on three underlying counts charging arson and attempted arson. The trial court sentenced Hedgcorth to a five year prison term on one count of using a destructive device (the mandatory sentence), and a consecutive five year probation term on the conspiracy and racketeering counts. Impo sition of sentence on the second count of using a destructive device was stayed, in accordance with our holding in United States v. Palafox, 764 F.2d 558, 563-64 (9th Cir.1985) (en banc). The trial court sentenced Camper to a nine year prison term on the racketeering count, a consecutive five year prison term on one count of using a destructive device, and a consecutive five year probation term on the conspiracy count. Imposition of sentence on the second count of using a destructive device was stayed. Both defendants filed a timely Notice of Appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. DESTRUCTIVE DEVICE Title 18 U.S.C. § 924(c)(1) provides a mandatory five year prison sentence for anyone who uses a “firearm” “during and in relation to any crime of violence or drug trafficking crime.” The term “firearm” includes a “destructive device.” 18 U.S.C. § 921(a)(3). A “destructive device” is defined as: any explosive, incendiary, or poison gas— (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses.... The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon. 18 U.S.C. § 921(a)(4). Defendants argue that the napalm firebombs are not “destructive devices” within the meaning of section 921(a)(4). None of our prior cases have discussed the definition in section 921(a)(4). However, the definition is the same as that found in 26 U.S.C. § 5845(f). The two provisions share a common legislative history. See United States v. Oba, 448 F.2d 892, 893-94 (9th Cir.1971), cert. denied, 405 U.S. 935, 92 S.Ct. 979, 30 L.Ed.2d 811 (1972). Our cases construing 26" }, { "docid": "23293249", "title": "", "text": "in § 5845(a)(8) to mean a “destructive device”. A “destructive device” in turn is defined in § 5845 (f) to mean “(1) any explosive, incendiary .... (A) bomb ... or (F) similar device; . . . and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled . . . .” Peter Betres and Dennis Tiche contend that the combination of dynamite, detonating cord, detonating caps and drums of gasoline used to commit the arson at Shelton did not constitute a “destructive device” within the meaning of § 5845(f). We disagree. In United States v. Cruz, 492 F.2d 217, 219 (2 Cir.), cert, denied, 417 U.S. 935 (1974), we held that a completed Molotov cocktail was an incendiary bomb or similar device within the meaning of § 5845(f), relying on the “ordinary meaning” of the statute and its legislative history: “[T]he legislative history of the Firearms Act indicates that it requires registration of objectively destructive devices, devices inherently prone to abuse and for which there are no legitimate industrial uses.\" Id. (emphasis added). We likewise hold in the instant case that the materials utilized, once placed on the Shelton premises — with timers connected to detonating caps, caps connected to a fuse, a fuse connected to sticks of dynamite and the dynamite placed under barrels of gasoline — similarly constituted an objectively destructive device which had no legitimate industrial use. We recognize that a Molotov cocktail, although homemade, is portable, adaptable, and perhaps even saleable. The apparatus in this case, in contrast, was designed for a single purpose and became a “device” within the meaning of § 5845(f), as opposed to an aggregation of parts not covered by the statute, see United States v. Posnjak, 457 F.2d 1110 (2 Cir. 1972), only upon being set up in the Shelton plant. But under our construction of § 5845(f) in Cruz this distinction is not determinative. Once the components were connected, in however crude a fashion," }, { "docid": "5014782", "title": "", "text": "device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon. It is clear that this section applies primarily to military-type ordnance, such as bombs, mines or bazookas. The government contends that the materials in this case fall under subsection (3) as a “combination of parts ... from which a destructive device may be readily assembled.” Subsection (3) requires such a crude device to fall within one of the definitions of subsections (1) and (2). Thus, the government essentially argues that the combination of parts would produce an “incendiary ... (A) bomb ... or (F) similar device.” There is no question that crude bombs or materials from which a bomb can be readily assembled fall under § 5845(f). Typically, courts affirm convictions under § 5845 where defendants either had built “molotov cocktails” or were prepared to build them. See, e.g., United States v. Ross, 458 F.2d 1144 (5th Cir.1972), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972); United States v. Tankersley, 492 F.2d 962 (7th Cir.1974). Similarly, courts have upheld convictions in cases involving homemade dynamite devices. See United States v. Bubar, 567 F.2d 192, 200-01 (2d Cir.1977) (dynamite placed under barrel of gasoline), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977); United States v. Peterson, 475 F.2d 806, 810-11 (9th Cir.1973) (flare and fuse combined with gunpowder), cert. denied, 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 93 (1973). However, a molotov cocktail is clearly an “incendiary bomb,” just as dynamite is an “explosive bomb.” The “device” at issue here is not so clearly a “bomb” or “similar device.” Hawkins testified that the materials would ignite and burn, but not cause an explosion. See Hawkins Transcript at 35. The explosives expert, Mr. Gleason, admitted at trial that no explosion would occur unless a vacuum existed in the building, which was not the case. The question here, then, is not whether the device would have been “destructive” if readily assembled. Surely it would have caused destruction. Rather, we" }, { "docid": "2485024", "title": "", "text": "if “the offense involved a destructive device.” The Commentary to section 2K2.1 of the guidelines defines a “destructive device” as follows: any explosive, incendiary, or poison gas— (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses; any type of weapon which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; or any combination of parts either designed or intended for use in converting any device into any destructive device listed above. For a more detailed definition, refer to 26 U.S.C. § 5845(f). The “more detailed definition” referred to in 26 U.S.C. § 5845(f) is nearly identical to the Commentary definition, with one exception. Namely, § 5845(f) states that the term destructive device does not include “any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device.” The district court found the MK 141 qualified as a “destructive device.” The defendant Salyers asks us to review this finding de novo, and argues that the MK 141 “clearly falls into the pyrotechnic category,” and thus does not qualify as a “destructive device.” We disagree. To begin with, contrary to the defendant’s assertion that we review this claim de novo, the district court’s application of the guideline definitions to the characteristics of the MK 141 is reviewed for “clear error.” See United States v. Wyatt, 102 F.3d 241, 246 n. 7 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1325, 137 L.Ed.2d 486 (1997) (district court’s application of § 2K2.1 to facts reviewed for dear error). A trial court’s decision does not constitute clear error if it simply represents a choice between two permissible" }, { "docid": "5014781", "title": "", "text": "including a “destructive device.” Other types of firearm include weapons such as machine guns, rifles and shotguns. The key provision in dispute, § 5845(f) provides in relevant part: (f) Destructive device. — The term “destructive device” means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (D) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon. It is clear that this section applies primarily to military-type ordnance, such as bombs, mines or bazookas. The government contends that the materials in this case fall under subsection (3) as a “combination of parts ... from which a destructive device may be readily assembled.” Subsection (3) requires such a crude device to fall within one of the definitions of subsections (1) and (2). Thus, the government essentially argues that the combination of parts would produce an “incendiary ... (A) bomb ... or (F) similar device.” There is no question that crude bombs or materials from which a bomb can be readily assembled fall under § 5845(f). Typically, courts affirm convictions under § 5845 where defendants either had built “molotov cocktails” or were prepared to build them. See, e.g., United States v. Ross, 458 F.2d 1144 (5th Cir.1972), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972);" }, { "docid": "14205138", "title": "", "text": "throw Molotov cocktails. II. Claims of Error. A. Section 5845(f). Appellants claim that the indictment on which they were convicted does not state an offense because Molotov cocktails are not within the Firearms Act. One of the types of weapon coming within the registration provision of the Act, 26 U.S.C. § 5841 (1970), is the “destructive device,” which is defined as follows: “The term ‘destructive device’ means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade . or (F) similar device . . . .”26 U.S.C. § 5845(f) (1970) (emphasis added). Appellants argue that a Molotov cocktail is not an incendiary bomb, grenade or similar device. We find this argument to be without merit. If we are to give section 5845(f) the ordinary meaning of its language, a Molotov cocktail must come within its scope. In so holding, we follow the explicit examples of the Fifth Circuit in United States v. Ross, 458 F.2d 1144 (5th Cir.), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972), and of Judge Timbers in United States v. Davis, 313 F.Supp. 710 (D.Conn.1970), and this court’s suggestion in United States v. Posnjak, 457 F.2d 1110, 1119 n. 10 (2d Cir. 1972). Appellants further contend that the language in the indictment charging them with possessing “destructive devices known as incendiary bombs in the form of ‘Molotov cocktails’ ” requires the Government to prove that Molotov cocktails are incendiary bombs, rather than “grenades” or “similar devices.” We disagree. The indictment adequately charged possession of a destructive device under § 5845(f), and its failure to recite each of the possible statutory categories does not restrict its proof that Molotov cocktails are within the proscription of the Act. The appellants refer to the legislative history of the Firearms Act. They contend that Molotov cocktails are in none of the three categories of weapons that were intended to be regulated by Congress: weapons subject to interstate commercial sale, heavy military weapons of great destructive capability, and objectively destructive devices. While we express no opinion as to whether these categories exhaust the possibilities under the" }, { "docid": "17704583", "title": "", "text": "crime of violence or drug trafficking crime.” The term “firearm” includes a “destructive device.” 18 U.S.C. § 921(a)(3). A “destructive device” is defined as: any explosive, incendiary, or poison gas— (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses.... The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon. 18 U.S.C. § 921(a)(4). Defendants argue that the napalm firebombs are not “destructive devices” within the meaning of section 921(a)(4). None of our prior cases have discussed the definition in section 921(a)(4). However, the definition is the same as that found in 26 U.S.C. § 5845(f). The two provisions share a common legislative history. See United States v. Oba, 448 F.2d 892, 893-94 (9th Cir.1971), cert. denied, 405 U.S. 935, 92 S.Ct. 979, 30 L.Ed.2d 811 (1972). Our cases construing 26 U.S.C. § 5845(f) provide guidance in construing 18 U.S.C. § 921(a)(4). The trial court instructed the jury as follows: A destructive device includes any incendiary device, be it a military-type weapon or homemade incendiary product, or components thereof, the function of which is to ignite and destroy property. It must be similar to an explosive or incendiary bomb, grenade, missile, or firebomb, but need not be identical. Any device composed of a combustible material capable of producing sufficient heat to destroy property of any kind and having components designed to ignite that combustible material is under the law an incendiary device similar to a fire or incendiary bomb. The term “destructive device” does not include any device which is not designed or redesigned as a weapon for the destruction of property. These instructions are virtually identical to those we approved in United States v. Peterson, 475 F.2d 806, 811-12 (9th Cir.), cert. denied, 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 93 (1973). The issue is whether there was evidence from which a reasonable jury" }, { "docid": "17768042", "title": "", "text": "a “destructive device” made from “a one gallon plastic jug, flammable liquid, and a rag wick,” which was lit and thrown through the window of a home); United States v. Campbell, 685 F.2d 131, 132 (5th Cir.1982) (sustaining indictment for possession of a “destructive device” which was “made from cloth rags, [and] flammable liquid with a fuse made of incense sticks”); United States v. Ragusa, 664 F.2d 696, 699-701 (8th Cir.1981) (upholding conviction under Section 5845(f) and finding that a device consisting of six trash bags, each holding a five gallon container of gasoline, suspended in various locations throughout the house and connected by overlapping paper towels, constituted an “incendiary ... bomb” or “similar device”); United States v. Peterson, 475 F.2d 806, 811 (9th Cir.1973) (upholding conviction and finding that device consisting of flare segments, black powder, cotton rope, and binding tape, when combined with “evil intent,” is similar to a Molotov cocktail). Graziano makes several arguments in support of his position, all of which are unpersuasive. First, Graziano obviously acknowledges that a classic Molotov cocktail — usually consisting of a glass bottle filled with combustible liquid and a fuse (such as a cloth wick), which.is thrown— constitutes a destructive device under Section 922(a)(4). (See Defendant’s Memorandum of Law, at 6-7 (discussing Molotov cocktails); see also United States v. Cruz, 492 F.2d 217 (2d Cir.1974) (holding that Molotov cocktails are “destructive devices” and defining a Molotov cocktail as “a ‘crude hand grenade made of a bottle filled with a flammable liquid (as gasoline) and fitted with a wick or saturated rag taped to the bottom and ignited at the moment of hurling’ ”) (quoting Webster’s Third New International Dictionary 1456 (3d ed.1961)).) However, Graziano argues that the device in this case stands in “stark contrast” to a Molotov cocktail and is not a “destructive device” solely because Morrow used a plastic container, which cannot shatter on impact, as opposed to the customary glass bottle. (Defendant’s Memorandum of Law at 7.) The Court disagrees with this analysis and does not view the type of container used as dispositive. In his opposition," }, { "docid": "17768085", "title": "", "text": "bomb” under 28 U.S.C. § 5845. In reaching this decision, the court stated that, under the statute, a \"bomb” need not explode because such an interpretation would render \"incendiary” surplusage. Id. at 888. The court further noted that, \"[i]n the flame-producing manner of its operation, the device is similar to a Molotov cocktail or other types of firebombs that have been held to constitute 'incendiary bombs,' even though they do not explode.” Id. (collecting cases). However, the La Cock Court overlooked the fact that \"explode” does not only mean to detonate or shatter, but rather is more broadly defined to include any sudden burst of energy, including heat or fire. Therefore, Molotov cocktails, and other firebombs (including the device in La Cock and the instant case) do \"explode” by delivering a sudden burst of fire and heat from its container upon ignition, flight and impact. In other words, although this Court (unlike La Cock) concludes that all \"bombs” are designed to \"explode,” all these incendiary devices fall within the general definition of the term \"explode” and, thus, are incendiary bombs under the statute. . The Court notes that some of these cases involved the interpretation of the term “destructive device” found in 28 U.S.C. § 5845(f), rather than Section 921(a)(4). Although the definition of “destructive device” is identical in each statute, the statutory frameworks are not identical. In particular, Section 5845(f) requires registration of certain firearms, including destructive devices, and thus deals specifically with possession of unregistered devices. Section 921(a)(4), as applied to Section 924(c) charges, such as the one in the instant case, deals not simply with possession, but criminalizes the use of the destructive device (or carrying or possession) only in relation to a crime of violence or a dmg trafficking case. Therefore, given that Graziano is charged with such use in relation to a crime of violence within the statutory framework of Section 924(c), the applicability of certain case law under Section 5845(f) cited by defendant, which narrowed the definition of destructive device as utilized under Section 5845(f) in certain respects because of concern of unwitting possession" }, { "docid": "5014780", "title": "", "text": "(5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). This two part test was designed to widen the ambit of attempt liability, consistent with the drafters’ belief that the proper concern of the law of attempts is the dangerousness of the actor, as a person manifesting firm disposition to commit the crime, not the dangerousness of his conduct____ Rovetuso, 768 F.2d at 821 n. 12, quoting, United States v. Ivic, 700 F.2d 51, 66 (2d Cir.1983). The government has plainly proved both of the attempt elements beyond a reasonable doubt. IV. Count III of the indictment charged Podolsky with possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). The government’s theory is that the gasoline, chlorine and brake fluid constituted components of a “destructive device” as defined in 26 U.S.C. § 5845(f), and thus were subject to the registration requirements of the National Firearms Act. We disagree. Our analysis, of course, begins with the language of the statute itself. 26 U.S.C. § 5845(a) defines a “firearm” as including a “destructive device.” Other types of firearm include weapons such as machine guns, rifles and shotguns. The key provision in dispute, § 5845(f) provides in relevant part: (f) Destructive device. — The term “destructive device” means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (D) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive" }, { "docid": "17768041", "title": "", "text": "such, is completely consistent with decisions by numerous courts in other circuits that have found various types of home-made, incendiary devices to constitute “destructive devices.” See, e.g., La Cock, 366 F.3d at 888 (holding that homemade device in a box that “was designed, upon activation, to shoot a six-foot-high flame into the air and in the process ‘give out large amounts of gas, heat [and] energy’ ” constitutes a “destructive device”); United States v. Hedgcorth, 873 F.2d 1307 (9th Cir.1989) (holding that devices, which consisted of plastic water jugs filled with gasoline, motor oil, and soap to produce a gelatinous mixture chemically equivalent to napalm, and used in automobile firebombings, were “destructive devices”); United States v. Buchanan, 787 F.2d 477, 483-84 (10th Cir.1986) (affirming conviction where homemade device consisted of a plastic milk container filled with gasoline and charcoal fluid with a fuse made out of rags, which was lit and dropped through a broken window of a mobile home); United States v. Neal, 692 F.2d 1296, 1303-04 (10th Cir.1982) (affirming conviction for possession of a “destructive device” made from “a one gallon plastic jug, flammable liquid, and a rag wick,” which was lit and thrown through the window of a home); United States v. Campbell, 685 F.2d 131, 132 (5th Cir.1982) (sustaining indictment for possession of a “destructive device” which was “made from cloth rags, [and] flammable liquid with a fuse made of incense sticks”); United States v. Ragusa, 664 F.2d 696, 699-701 (8th Cir.1981) (upholding conviction under Section 5845(f) and finding that a device consisting of six trash bags, each holding a five gallon container of gasoline, suspended in various locations throughout the house and connected by overlapping paper towels, constituted an “incendiary ... bomb” or “similar device”); United States v. Peterson, 475 F.2d 806, 811 (9th Cir.1973) (upholding conviction and finding that device consisting of flare segments, black powder, cotton rope, and binding tape, when combined with “evil intent,” is similar to a Molotov cocktail). Graziano makes several arguments in support of his position, all of which are unpersuasive. First, Graziano obviously acknowledges that a classic Molotov" }, { "docid": "9415570", "title": "", "text": "regulations are in aid of a revenue purpose. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953); United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (1950); Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937). The motives that move Congress to impose a tax are no concern of the courts. Sonzinsky, supra. Furthermore, that an act accomplishes another purpose than raising revenue does not invalidate it. United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1919). Section 5861(d) making possession of an unregistered weapon unlawful is part of the web of regulation aiding enforcement of the transfer tax provision in § 5811. Having required payment of a transfer tax and registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons. Such a penalty imposed on transferees ultimately discourages the transferor on whom the tax is levied from transferring a firearm without paying the tax. To come within the proscription of the Act a Molotov cocktail must be a “similar device” within the meaning of § 5845(f). Obviously the definition of “destructive device” to include “any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device” is descriptive and not exhaustive. Though the statute does not in terms mention Molotov cocktails, its silence is no impediment. The devices that are enumerated have in common usage limited to anti-social purposes. By their nature they are not suited for some other innocent end. A Molotov cocktail has no purpose apart from criminal activities. It is not a device that is commonly created for legitimate purposes but the use of which may be perverted from that intended, ordinary purpose to an illegitimate end. Cf. United States v. Schofer, 310 F.Supp. 1292 (E.D.N.Y.1969). Hence, it qualifies as a “similar device.” See United States" }, { "docid": "17768048", "title": "", "text": "is thus not a per se weapon by design.” (Defendant’s Memorandum of Law, at 13.) The fact that an incendiary bomb is made from household items with legitimate social purposes does not exempt it from the definition of “destructive device.” Instead, when household components are assembled or re-assembled with the intent to convert them into a destructive device, the statute is implicated. Therefore, in the instant case, there is no question that separate household items — a plastic container, gasoline, and a rag — were assembled with the intent to convert them into a destructive device. The evidence of intent in this case is irrefutable based upon the undisputed evidence that the assembled parts were hurled through a store window to cause an arson after the rag (assembled as a fuse) was lit. Under such circumstances, this device consisting of assembled household items is clearly a “destructive device.” See, e.g., United States v. Campbell, 685 F.2d 131, 132 (5th Cir.1982) (“Home-made fire bombs are .‘destructive devices,’ even though their components may all be legally possessed ... nor does it matter, in logic, whether the home-made bomb is compact and easily transported or one of dispersed nature, assembled on particular premises to accomplish their ruin.”) (citation omitted); United States v. Curtis, 520 F.2d 1300, 1304 (1st Cir.1975) (“The statutory purpose [of Section 5845(f) ] would be ill-served by an interpretation which excluded from coverage ‘home-made’ bombs having no lawful use simply because one of the components was dynamite, a material not in itself regulated as a firearm. Thus, while gasoline, bottles and rags all may be legally possessed, their combination into the type of home-made incendiary bomb commonly known as a Molotov cocktail creates a destructive device.”). Graziano’s reliance on the Second Circuit decision in United States v. Posnjak, 457 F.2d 1110 (2d Cir.1972), in support of his argument that intent cannot be considered, is misplaced. In Posnjak, the Second Circuit held that simple possession of commercial blasting dynamite, even if there is intent to re-sell it for use as a weapon, does not transform the dynamite into a “destructive device”" }, { "docid": "17768035", "title": "", "text": "243 (2d Cir.1972)). III. Analysis A. The “Destructive Device” Element Graziano argues that the device used to commit the arson — namely, a plastic can containing gasoline with a cloth rag protruding as a fuse — cannot constitute a “destructive device” under Title 18, United States Code, § 921. As set forth below, the Court disagrees and concludes, based upon the evidence in this case, that the device qualifies as a “destructive device” under the applicable statutory definition. Neither the plain language of the statute, nor the case law applying that language, supports defendant’s strained interpretation of the statute as applied to this case. Thus, there is no basis for a judgment of acquittal on that ground. As a threshold matter, the plain language of Title 18, United States Code, § 921(a)(4) does not require that a “destructive device” be an explosive. Specifically, § 921(a)(4) provides, in relevant part, as follows: (4) The term “destructive device” means— (A) any explosive, incendiary, or poison gas— (i) bomb, (vi) device similar to any of the devices described in the preceding clauses; (C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon .... 18 U.S.C. § 921(a)(4). It is abundantly clear from the language of the statute that not every bomb need be an explosive because the word “bomb” is modified by three different adjectives: namely, “explosive, incendiary or poison gas.” In other words, if “bomb” is interpreted to be synonymous with “explosive,” such an interpretation renders the terms “incendiary” and “poison gas” superfluous. Moreover, the use of the disjunctive term “or” between these terms clearly demonstrates that Congress intended to create three different categories of destructive devices — explosive bomb, incendiary bomb, or poison gas bomb. In short, the Court concludes that, under § 921(a)(4), an “incendiary bomb” can constitute a “destructive device” even if it is" }, { "docid": "17768049", "title": "", "text": "... nor does it matter, in logic, whether the home-made bomb is compact and easily transported or one of dispersed nature, assembled on particular premises to accomplish their ruin.”) (citation omitted); United States v. Curtis, 520 F.2d 1300, 1304 (1st Cir.1975) (“The statutory purpose [of Section 5845(f) ] would be ill-served by an interpretation which excluded from coverage ‘home-made’ bombs having no lawful use simply because one of the components was dynamite, a material not in itself regulated as a firearm. Thus, while gasoline, bottles and rags all may be legally possessed, their combination into the type of home-made incendiary bomb commonly known as a Molotov cocktail creates a destructive device.”). Graziano’s reliance on the Second Circuit decision in United States v. Posnjak, 457 F.2d 1110 (2d Cir.1972), in support of his argument that intent cannot be considered, is misplaced. In Posnjak, the Second Circuit held that simple possession of commercial blasting dynamite, even if there is intent to re-sell it for use as a weapon, does not transform the dynamite into a “destructive device” under Section 5845, such that it needs to be registered when possessed under the National Firearms Act. The Court concluded that, because commercial dynamite alone cannot be a “destructive device” and it would have to be assembled with something else to qualify, the intent of the person possessing the dynamite is irrelevant to the definition. Id. at 1116-17. However, the Court also made clear that, when the household items have been assembled in a manner that may be used legitimately but also could be used as a “destructive device,” intent may be considered under subsection (C) of the “destructive device” definition, which refers to “any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A).” 18 U.S.C. § 921(4)(C). In fact, in explaining that intent could be considered in these ambiguous situations when a device is assembled or re-assembled, the Second Circuit cited a case involving the assembly of a Molotov cocktail as an example where intent is critical: [From the language of subsection" }, { "docid": "2485023", "title": "", "text": "Another factor prompts us to believe that Detective Eiman did not knowingly lie when he applied for the search warrant. Because of the clarity, specificity and detail in Rusty’s statements, Eiman certainly could have believed that Rusty had access to his father’s home and had seen the weaponry. Detective Eiman simply “view[ed] the facts through the lens of his experience and expertise.” See Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We can well understand why Eiman chose to believe Rusty’s statements. There is more than sufficient evidence in this record to support the trial judge’s finding that Eiman did not knowingly or recklessly include false statements in the warrant application. We agree with the experienced trial judge and refuse to hold that the court’s finding rises to the level of clear error. B. Whether the District Court Erred when it Found the MK lkl is a “Destructive Device” for Purposes of U.S.S.G. § 2K2.1(b)(S). U.S.S.G. § 2K2.1(b)(3) mandates a two level enhancement to the base offense level if “the offense involved a destructive device.” The Commentary to section 2K2.1 of the guidelines defines a “destructive device” as follows: any explosive, incendiary, or poison gas— (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses; any type of weapon which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; or any combination of parts either designed or intended for use in converting any device into any destructive device listed above. For a more detailed definition, refer to 26 U.S.C. § 5845(f). The “more detailed definition” referred to in 26 U.S.C. § 5845(f) is nearly identical to the Commentary definition, with one exception. Namely, § 5845(f) states that the term destructive device does not" }, { "docid": "6797720", "title": "", "text": "the traditional (“a small projecting tongue in a firearm that, when pressed by the finger, actuates the mechanism that discharges the weapon”) and the more general (“anything, as an act or event, that serves as a stimulus and initiates or precipitates a reaction or series of reactions.”)- See WebsteR’s Unabridged DictionaRY Of The English LaNguage (2001). Fleischli’s electronic switch served to initiate the firing sequence and the mi-nigun continued to fire until the switch was turned off or the ammunition was exhausted. The minigun was therefore a machine gun as defined in the National Firearms Act. H. We next consider whether the term “similar device”, in 26 U.S.C. § 5845(f) is unconstitutionally vague. Fleischli was convicted of violating section 5861(d), which prohibits possession of an unregistered firearm. Section 5845(a)(8) defines “firearm” to include a “destructive device.” Section 5845(f), in turn, defines destructive device: The term “destructive device” means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device[.] 26 U.S.C. § 5845(f). The statute further provides that the term “destructive device” does not include devices that are not designed or redesigned for use as weapons. 26 U.S.C. § 5845(f)(3). Fleischli was charged with possessing four “explosive or incendiary bombs or similar devices each consisting of a cardboard container sealed at both ends, containing a mixture of pen-taerythritol tetranintrate (PETN) powder, a non-electric blasting cap with a short length of fuse.” R. 26 at 7. Fleischli maintains that the use of the word “similar” causes a reasonable person to speculate as to how nearly a device must resemble a bomb, grenade, rocket, missile or mine in determining whether the device is encompassed by the statute. Fleischli thus contends the statute is unconstitutionally vague. The three circuits to consider this issue have all found that the statute is not unconstitutionally vague. See United States v. Markley, 567 F.2d 523, 527-28 (1st Cir.1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1578, 55" }, { "docid": "14205137", "title": "", "text": "them throw the fire bombs to the time they arrested them. The government also introduced, over the appellants’ objection, a certificate of non-registration from the Bureau of Alcohol and Firearms, showing that the custodian of Bureau records had searched Bureau files, and that there was no evidence of the Molotov cocktails in question having ever been registered. B. The Defense Case. The defense called two witnesses. Leroy Carter was in his butcher store directly across from the place where the incident took place on June 20. He testified that although he was observing the street at 11:00, he did not see any fire bombs being thrown. Evelyn Rodriguez was a tenant in a building facing the intersection in which the appellants were apprehended, the same building in which the appellants lived. She testified that she watched Torres’s family leave their car and go into their house, and that Torres drove the car behind the building. When he returned to the street on foot, she saw Torres and Yega being arrested. She did not see them throw Molotov cocktails. II. Claims of Error. A. Section 5845(f). Appellants claim that the indictment on which they were convicted does not state an offense because Molotov cocktails are not within the Firearms Act. One of the types of weapon coming within the registration provision of the Act, 26 U.S.C. § 5841 (1970), is the “destructive device,” which is defined as follows: “The term ‘destructive device’ means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade . or (F) similar device . . . .”26 U.S.C. § 5845(f) (1970) (emphasis added). Appellants argue that a Molotov cocktail is not an incendiary bomb, grenade or similar device. We find this argument to be without merit. If we are to give section 5845(f) the ordinary meaning of its language, a Molotov cocktail must come within its scope. In so holding, we follow the explicit examples of the Fifth Circuit in United States v. Ross, 458 F.2d 1144 (5th Cir.), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972), and of Judge Timbers" } ]

[ { "docid": "15554417", "title": "", "text": "L. Ed. 629; Pusey & Jones v. Hanssen, 261 U. S. 500, 43 S. Ct. 454, 67 L. Ed. 763; Burnrite Coal Co. v. Riggs, 274 U. S. 208, 47 S. Ct. 578, 71 L. Ed. 1002. They say this is a ease where neither the appointment of the receiver nor the jurisdiction of the court over him or the causo is in question; that the difficulty here grows out of the want of equitable, rather than federal, jurisdiction, through the attempted administration of properties under a bill as to them deficient in equity, and that in such case the court has the fullest authority to proceed in the matter of taxing costs and disbursements as may appear to it just and right. They say further, however, that, if it be considered that the case is one in which, there was a complete lack of jurisdiction, the court, having at the instance of appellant taken hold of the propei’ties to administer them, has the power which it may exercise, by a simple motion in the cause, Northwestern Fuel Co. v. Brock, 139 U. S. 216, 11 S. Ct. 523, 35 L. Ed. 151, to require the one at whose instance jurisdiction has been wrongly asserted, to make him whole whoso possession has been wrongfully disturbed, Beach v. Macon Grocery Co. (C. C. A.) 125 F. 513; McIntosh v. Ward (C. C. A.) 159 F. 66; Hawes v. First Nat. Bank of Madison (C. C. A.) 229 F. 51; Fryer v. Weakley (C. C. A.) 261 F. 509; Noxon Chem. Prod. Co. v. Leckie (C. C. A.) 39 F. (2d) 318; People’s Savings & Dime Bank v. Williams Drop Forging Co. (D. C.) 42 F.(2d) 292; Arkadelphia Milling Co. v. St. Louis Southwestern R. Co., 249 U. S. 134, 39 S. Ct. 237, 63 L. Ed. 517; Baltimore & O. R. Co. v. U. S., 279 C. S. 781, 49 S. Ct. 492, 73 L. Ed. 954. Appellant argues that, though where the court has wrongfully taken hold of properties either without jurisdiction or merely erroneously, it has the power to" } ]

[ { "docid": "13234063", "title": "", "text": "is such as other similar businesses have been experiencing and is not attributable to mismanagement. It is charged that the officers of the company have been diverting the funds of the company and having them transmitted from its office in Omaha to certain individual officers of the company in Chicago, but this allegation stands disproved by the undisputed testimony. The general offieers-of the company have offices in Chicago, and the company there carries the substantial part of its bank account. There has been absolutely no change in the method of handling its funds, and they have been transmitted to the bank in Chicago and deposited to the credit of the company in accordance with the established usage of many years. It should be observed that the properties of the defendant are separate properties and not fixed property extending into several states, like interstate railroads and pipe lines. We have carefully considered other contentions of counsel, but as we are of the view that the orders appealed from must be reversed, we pretermit any further discussion of the issues. It follows that the order overruling the motion to vacate the ex parte order appointing receiver in the Craig Case, and the order appointing receiver in the Kirkpatrick Case, are reversed, and the cause is remanded to the lower court with directions to take such further proceedings consistent herewith as. sha.n restore the property taken over by the reeeiver to the possession of the defendant Central West Public Service Company, free and clear from all liability or charges on account of fees, salary, coste, and expenses attributable to such receivership, such receivership cost and expenses being taxable against the applicants for receiver [Close v. Brictson Mfg. Co. (C. C. A. 8) 49 F.(2d) 751; Fulp v. McCray (C. C. A. 8) 21 F.(2d) 951], and for such further proceedings consistent with this opinion as may be necessary to carry out the decision of this court. „ _ „ . Jt 18 further directed that the mandate of this court issue forthwith." }, { "docid": "14397080", "title": "", "text": "the funds in the hands of the receiver must as a practical matter rest largely in the discretion of the trial court. In Tardy'Smith on Receivers, vol. 2, p. 1754, it is said: “There are, however, exceptions to- the rule that the receiver’s compensation should be taxed against the party applying for the receiver when he is unsuccessful in the final determination of the litigation. The receiver’s compensation is part of the costs of the action; and, like other costs in any equitable proceeding, they are assessed in accordance with principles of equity and on equitable grounds. * * * It is generally accepted that, in the absence of a statute, the expenses of receivership, as between the parties, should be adjudged upon equitable principles. 34 Cyc. 364; Geer v. Finn, 196 Mich. 738, 163 N. W. 20. In accordance with such rule, the court exercises large discretion in determining who shall pay the expenses of receiverships and assess the same against the funds, or against either party, or apportion them, according to the justice and equity of each case.” High on Receivers (4th Ed.) § 796; Burnrite Coal Briquette Co. v. Edward G. Riggs et al., 274 U. S. 208, 47 S. Ct. 578, 71 L. Ed. 1002 (decided by the Supreme Court May 2, 1927), Such discretion, however, is not an arbitrary one, and should be exercised “according to the justice and equity of each case.” We measure this case by that rule. What was the situation presented to the trial court at the time of Knox’s appointment? McCray had unsuccessfully pursued his action in the state and Supreme Courts of Oklahoma to secure possession of two leases of the Sapulpa Petroleum Company, and the title of the Sapulpa Petroleum Company as against McCray in these two leases had been quieted. The indebtedness between Mceray and the Sapulpa Petroleum Company had also been determined in that ease. A receiver appointed by the state court had qualified and taken possession of all the properties of the Sapulpa Petroleum Company prior to the filing of any application for receiver in" }, { "docid": "16574185", "title": "", "text": "Co., 258 N.Y. 315, 317-318, 179 N.E 712, 79 A.L.R. 1320; Gregonis v. Philadelphia & R. C. & I. Co., 235 N.Y. 152, 160, 139 N.E 223, 32 A.L.R. 1. . Rederiet Ocean Aktieselskab v. W. A. Kirk & Co., Sup., 51. N.Y.S.2d 565; Osborne v. Banco Aleman-Antioqueno, Mun. Ct., 176 Misc. 664, 29 N.Y.S.2d 236. . Hagen v. Viney, 124 Fla. 747, 169 So. 391; Trojan Engineering Corp. v. Green Mountain Power Corp., 293 Mass. 377, 200 N.E. 117; Quigley Co. v. Asbestos Ltd., 134 N.J.Eq. 312, 35 A.2d 432. . Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at page 509, 67 S.Ct. at page 843. . Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. . Cf. Adam v. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649. . See Marks v. Fireman's Fund Ins. Co., D.C.S.D.N.Y., 109 F.Supp. 800, 803. . Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. . See Brady v. Black Diamond S. S. Co., D.C.S.D.N.Y., 45 F.Supp. 338. . Cf. Sampson v. Channell, 1 Cir., 110 F.2d 754, 128 A.L.R. 394, certiorari denied, 310 U.S. 650, 60 S.Ct. 1099, 84 L.Ed. 1415; Fed.Rules Civ.Proc. rules 14, 18, 41(c), 42(b), 54(b), 55(d). See also rules 7(a), 8(a), 28 U.S.C.A. . Stat.Ann. (Purdon 1939) t. 75 §§ 1201, 1202, 1204. . Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1031. . Olberding v. Illinois Central Railroad Co., Inc., 74 S.Ct. 83; Martin v. Fischbach Trucking Co., 1 Cir., 183 F.2d 53. . Cf. Marks v. Fireman’s Fund Ins. Co., D.C.S.D.N.Y., 109 F.Supp. 800, 803-804. . For a celebrated instance, see Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. . Collard v. Beach, 1st Dept., 81 App. Div. 582, 81 N.Y.S. 619. . Gainer v. Donner, Sup., 140 Misc. 841, 251 N.Y.S. 713. . Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747. . 28 U.S.C.A. § 1404(a). . Anthony" }, { "docid": "12405708", "title": "", "text": "52 L.Ed. 528, 13 Ann.Cas. 1155; Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 214, 47 S.Ct. 578, 71 L.Ed. 1002; Central West Public Service Co. v. Craig, 8 Cir., 70 F.2d 427, 435; Close v. Brictson Mfg. Co., 8 Cir., 49 F.2d 751, 756; Noxon Chemical Products Co. v. Leckie, 3 Cir., 39 F.2d 318, 321; Fulp v. McCray, 8 Cir., 21 F.2d 951, 952; McIntosh v. Ward, 7 Cir., 159 F. 66, 68, 69; Couper v. Shirley, 9 Cir., 75 F. 168, 171; State ex inf. Hadley v. People’s, etc., Bank, 197 Mo. 605, 95 S.W. 867, 869; St. Louis, K. & S. R. Co. v. Wear, 135 Mo. 230, 36 S.W. 357, 658, 33 L.R.A. 341. See, also, Bushman v. Barlow, 328 Mo. 90, 40 S.W.2d 637. W. F. Potts Son & Co. v. Cochrane, 5 Cir., 59 F.2d 375, 377, 378; Speakman v. Bryan, 5 Cir., 61 F.2d 430, 431; Fulp v. McCray, 8 Cir., 21 F.2d 951, 952; McIntosh v. Ward, 7 Cir., 159 F. 66, 68, 69; Farmers’ Nat. Bank v. Backus, 74 Minn. 264, 267, 77 N.W. 142, 143; 23 R.C.L. 106-107, § 116; 15 C.J. 36, § 29; 53 C.J. 303 -308, §§ 501-510. “The courts oí most jurisdictions are vested with large discretion in deiermining who shall pay the cost of receivership, and, according to the justice and equity of each case, may assess the costs of the receivership against the fund, against thc applicant, or apportion them among the parties.” 23 R.C.L. 106, § 116. “While it is undoubtedly true, as stated in 15 Corpus Juris, p. 36, § 29, that ‘a court of equity has power to impose costs on a party notwithstanding the fact that he is successful in the suit, if the circumstances are such as to warrant doing so,’ and while the general rule is that, where a receivership proceeding is contested and a receiver is appointed and obtains possession of property under an order of the court which is afterwards reversed on appeal as unauthorized, compensation for such receiver will not be ordered paid" }, { "docid": "14397081", "title": "", "text": "and equity of each case.” High on Receivers (4th Ed.) § 796; Burnrite Coal Briquette Co. v. Edward G. Riggs et al., 274 U. S. 208, 47 S. Ct. 578, 71 L. Ed. 1002 (decided by the Supreme Court May 2, 1927), Such discretion, however, is not an arbitrary one, and should be exercised “according to the justice and equity of each case.” We measure this case by that rule. What was the situation presented to the trial court at the time of Knox’s appointment? McCray had unsuccessfully pursued his action in the state and Supreme Courts of Oklahoma to secure possession of two leases of the Sapulpa Petroleum Company, and the title of the Sapulpa Petroleum Company as against McCray in these two leases had been quieted. The indebtedness between Mceray and the Sapulpa Petroleum Company had also been determined in that ease. A receiver appointed by the state court had qualified and taken possession of all the properties of the Sapulpa Petroleum Company prior to the filing of any application for receiver in the federal court. The pleadings and evidence in the federal court ease disclosed no equity in McCray entitling him to any interest in or lien upon the property of the Sapulpa Petroleum Company, as this court subsequently held, and further, as held by this court, he was estopped by the 'decree and judgment in the state court from maintaining the suit in the federal court based upon the equitable lien claimed. Under this situation there was no reason whatever for the appointment of a receiver in the federal court for certain of the leases. If, under such circumstances, a receiver can be appointed and receive compensation out of the funds of the legal victim, the door is opened wide to abuse in bringing unjustifiable receivership proceedings. No such stimulation to the art of receiverships is needed. If a party with absolutely no equity in his claim secures the appointment of a receiver of another’s property, he should take the risk of paying the receiver’s fee. There is no reason why funds of an unoffending party" }, { "docid": "12405707", "title": "", "text": "Co. v. Central Union Trust Co., 8 Cir., 294 F. 32, 40; United States v. Johnson, 8 Cir., 98 F.2d 462, 466. Atlantic Trust Co. v. Chapman, 208 U.S. 360, 371-373, 28 S.Ct. 466, 52 L.Ed. 528, 13 Ann.Cas. 1155; Ferguson v. Dent, C.C., 46 F. 88, 96-99; Elk Fork Oil & Gas Co. v. Jennings, C.C., 90 F. 767, 770; State ex inf. Hadley v. People’s United States Bank, 197 Mo. 605, 95 S.W. 867, 869; French v. Gifford, 31 Iowa 428, 480; Radford v. Folsom, 55 Iowa 276, 287, 7 N.W. 604; Harrington v. Foley, 108 Iowa 287, 294, 79 N.W. 64; Cutter v. Pollock, 4 N.D. 205, 59 N.W. 1062, 25 L.R.A. 377, 50 Am.St.Rep. 644; Farmers’ Nat. Bank’ v. Backus, 74 Minn. 264, 267, 77 N.W. 142; Crump & Field v. First Nat. Bank, 229 Ky. 526, 17 S.W.2d 436, 68 A.L.R. 872, and annotations, page 878. See, also, Clark v. Brown, 8 Cir., 119 F. 130, 133. Atlantic Trust Co. v. Chapman, 208 U.S. 360, 372, 373, 28 S.Ct. 406, 52 L.Ed. 528, 13 Ann.Cas. 1155; Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 214, 47 S.Ct. 578, 71 L.Ed. 1002; Central West Public Service Co. v. Craig, 8 Cir., 70 F.2d 427, 435; Close v. Brictson Mfg. Co., 8 Cir., 49 F.2d 751, 756; Noxon Chemical Products Co. v. Leckie, 3 Cir., 39 F.2d 318, 321; Fulp v. McCray, 8 Cir., 21 F.2d 951, 952; McIntosh v. Ward, 7 Cir., 159 F. 66, 68, 69; Couper v. Shirley, 9 Cir., 75 F. 168, 171; State ex inf. Hadley v. People’s, etc., Bank, 197 Mo. 605, 95 S.W. 867, 869; St. Louis, K. & S. R. Co. v. Wear, 135 Mo. 230, 36 S.W. 357, 658, 33 L.R.A. 341. See, also, Bushman v. Barlow, 328 Mo. 90, 40 S.W.2d 637. W. F. Potts Son & Co. v. Cochrane, 5 Cir., 59 F.2d 375, 377, 378; Speakman v. Bryan, 5 Cir., 61 F.2d 430, 431; Fulp v. McCray, 8 Cir., 21 F.2d 951, 952; McIntosh v. Ward, 7 Cir., 159 F. 66, 68, 69; Farmers’" }, { "docid": "9512635", "title": "", "text": "to get court protection in the Court of its choice. When, therefore, the corporation itself has thus sought sanctuary and consented to a receivership, necessarily, the court may properly hold that the expenses of the receivership, thus secured, should be charged to the estate of the corporation. Cf. Finneran v. Burton, 291 F. 37, at pages 39 to 40 (C. C. A. 8) and cases there cited; and Burnrite Coal Briquette Company v. Riggs, 274 U. S. 208, 214, 215, 47 S. Ct. 578, 71 L. Ed. 1002. E. One other question which has been raised which should be noticed here is the question whether the receivers and their attorneys and the defendants’ attorney had a duty to defend the equity receivership in the event of its. being attacked. The receivers were officers appointed by the court into whose possession in this instance it put vast properties. It was unquestionably the duty of the receivers, through their attorneys, to endeavor to maintain their status as the appointed fiduciaries of those properties against all attacks. Cf. In re Hudson Electric Power Co., 173 F. 934, at page 956 (D. C.); and Blackstone v. Everybody’s Store, 207 F. 752 at page 756 (C. C. A. 1). Consequently, the lawyers employed by the receivers are entitled to have considered in connection with their other services such services as they may have rendered in resisting attacks on the receivership. Furthermore, inasmuch as an equity receivership in a case of this kind could not be granted on the complaint of an unsecured creditor failing the consent of the defendant, Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 500, 43 S. Ct. 454, 67 L. Ed. 763, it may be properly asserted that the real situation in a case like this is as above noted, that the defendant has elected to have its estate conserved and administered by the federal court in equity in the district in which it consents to the plaintiff’s complaint for the appointment of a receiver of its properties. It seems to me, therefore, that it was clearly appropriate that" }, { "docid": "4347198", "title": "", "text": "S. 591, 2 S. Ct. 295, 27 L. Ed. 488; United States & Mexican Trust Co. v. Beaty (C. C. A. 8) 243 F. 544; Smith, v. Shenandoah Valley Nat. Bank (C. C. A. 4) 246 F. 379. In Friedrichsen v. Guaranty Trust Co. of New York (C. C. A. 9) 39 F.(2d) 859, certiorari denied 282 U. S. 852, 51 S. Ct. 29, 75 L. Ed. 755, it was held that the priority of receiver’s certificates issued to preserve the properties could not be questioned by a party who offered no other solution. Appellee contends, and the trial court intimates, that the receivership was unnecessary and improvident; that while a receiver was unnecessary in December when the plaintiffs applied for one, that one was necessary in January when appellee applied for one. If so, the remedy was to oppose the appointment or promptly to move for his discharge; nothing prevented appellee from ' opposing his appointment, it having been notified of the application therefor; or from moving for his discharge in the state court; nor from promptly' removing the case to the federal court and there seeking his discharge. It pursued none of these obvious and appropriate remedies; instead, it prayed for the appointment of a receiver for the particular purpose for which it now stipulates the money was expended. The record gives rise to a suspicion that appellee wants a disinterested receiver, to pay for feeding its sheep through the winter. But even if the appointment by the state court or the continuation by the federal court was improvident, which we do not intimate, there is no question of jurisdiction, and no reason why the property should not be charged with the expense of preserving it. Burnrite Coal Briquette Co. v. Riggs, 274 U. S. 208, 47 S. Ct. 578, 71 L. Ed. 1002; Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 239, 53 L. Ed. 435; Brictson Mfg. Co. v. Close (C. C. A. 8) 25 F.(2d) 794; Atlantic Trust v. Chapman, 208 U. S. 360, 28 S. Ct. 406, 52 L. Ed. 528, 13" }, { "docid": "22270850", "title": "", "text": "and Intervenor [Dolman] and their counsel.” Since we hold that the appointment of a receiver was erroneous, these orders must be vacated. This does not, however, mean that none of the expenses authorized can be charged against Pioche or Ely. In effecting the final „ ,r . discharge of the receiver, the court must ° „ ,. ... have a full accounting by him, upon notice and hearing. (W. F. Potts Son v. Cochrane; 5 cir., 1932, 59 F.2d 375). The reeeiver js not personally liable for acts done by him within the scope of the authority conferred upon him by the court. (16 Fletcher, Cyclopedia of Corporations, § 7864, p. 498 (Rev. ed. 1962)) Mr. Clark thinks that, although the reTver's appointment be erroneous, all costs of the receivership may properly be charged against the corporation’s funds. (2 Clark, Receivers § 637.1 (m), p. 1065) Here, at least, we think not. * ' ’ ,, The court has a discretion to charge the . , ., ,, ______ receiver s expenses either to the eorporation or ^ the party wh0 wrongfully obtained the receiver’s appointment, (Burnrite Coal Briquette Co. v. Riggs, 1927, 274 U.S. 208, 47 S.Ct. 578, 71 L.Ed. 1002). The discretion of the court is to be exercised according to the justice and equity of eadl ease' Fulp v. McCray, 8 Cir., 1927, 21 F.2d 951, 952. We think that’ Judg; Huteheson has well stated the ruje that should be applied here. In W. F. Potts Son v. Cochrane, supra, he holds that those costs of the receivership that would not have arisen but for the appointment should be charged against the party invoking the reeeivershiP) here the appellees. On the other hand, expenses that the corporation wouId have had to incur had there been no receiver, and expenses that confer a genuine benefit upon the corporation, should be charged to it. Here, the court has found that the appellees have acted jn good faith, and we therefore think that the principles stated by Judge Hutcheson should be applied in this case, T no. , , 1" }, { "docid": "23630196", "title": "", "text": "Islands); In re Culmer, 25 B.R. 621 (Bahamas). In keeping with leading cases in this Circuit which have taught that administration of international bankruptcy cases requires flexibility to insure equality of distribution among creditors; and satisfaction of each of the elements of the statute; turnover and suspension are warranted. However, Chemical’s remaining objections must be addressed. B. The Jurisdictional Challenge Chemical contends that this Court lacks the subject matter jurisdiction to enter an order for relief upon a § 303(b)(4) involuntary petition filed by a foreign representative where: (1) The petition was filed with the explicit and acknowledged intent to invoke the Bankruptcy Code’s avoiding powers (but see discussion supra at 607); (2) the transaction to be avoided had been concluded prior to the commencement of the foreign winding-up proceeding; (3) the foreign debtor (a) did not conduct business in the United States, (b) had no place of business in the United States, (c) had no employees in the United States, and (d) had approximately $500,000 in bank accounts in the United States which could have been turned over to the foreign representative upon request or pursuant to a § 304 petition; and (4) all of the debts and liabilities of the foreign debtor were originally contracted between the foreign debtor and its creditors in the debtor’s domicile. (Chemical’s Brief at 39). These contentions bespeak a flawed interpretation on the part of chemical of the meaning of subject matter jurisdiction. Subject matter jurisdiction speaks to the competence of a court “to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action.” Noxon Chemical Products Co. v. Leckie, 39 F.2d 318, 320 (3d Cir.1930), cert. denied, 282 U.S. 841, 51 S.Ct. 22, 75 L.Ed. 747 (1930). In the international bankruptcy case In re Deak & Co., Inc., this Court addressed the issue of Bankruptcy Court subject matter jurisdiction: The Code specifically provides the district court where a Chapter 11 case is pending with exclusive jurisdiction over all property of the debtor and the estate." }, { "docid": "22270851", "title": "", "text": "eorporation or ^ the party wh0 wrongfully obtained the receiver’s appointment, (Burnrite Coal Briquette Co. v. Riggs, 1927, 274 U.S. 208, 47 S.Ct. 578, 71 L.Ed. 1002). The discretion of the court is to be exercised according to the justice and equity of eadl ease' Fulp v. McCray, 8 Cir., 1927, 21 F.2d 951, 952. We think that’ Judg; Huteheson has well stated the ruje that should be applied here. In W. F. Potts Son v. Cochrane, supra, he holds that those costs of the receivership that would not have arisen but for the appointment should be charged against the party invoking the reeeivershiP) here the appellees. On the other hand, expenses that the corporation wouId have had to incur had there been no receiver, and expenses that confer a genuine benefit upon the corporation, should be charged to it. Here, the court has found that the appellees have acted jn good faith, and we therefore think that the principles stated by Judge Hutcheson should be applied in this case, T no. , , 1 is or ere a . 1. Appeal No. 1, of November 6,1961, appeal No. 2, of December 18,1961. appeal No. 3, of January 4, 1962, and appeal No. 4 of February 5, 1962, are dismissed. 2. Insofar as the judgment awards $1,000,000.00 and costs against John Janney, it is affirmed; insofar as that judgment is in favor of the receiver, it is reversed, and the court is directed to substitute Pioche Mines Consolidated, Inc. a corporation, as the party in whose favor that part of the judgment is entered. 3. The judgment against Pioche Mines Consolidated, Inc. and Ely Valley Mines, Inc. is reversed. 4. The order entering the defaults of those two corporations and striking their pleadings is reversed. The court is directed to reinstate their counterclaims. .5. The orders of December 16, 1961, January 24, 1962, and March 16, 1962, and the judgment, insofar as they direct the appointment of, or appoint the receiver, are reversed. •6. The orders of December 6, 1961, January 24, 1962, and March 16, 1962, insofar as they" }, { "docid": "5365516", "title": "", "text": "all “records shipped less records returned,” and accrued for purposes of deducting as cost of sales all royalties payable on “records' shipped less records returned.” During 1962 and 1963, the taxpayer deducted royalties payable to Evans in the amount of $433,712 and $187,065 respectively. Under the contract only $95,000 and $120,000 were actually paid to the artist during these years. The Commissioner disallowed taxpayer’s deductions for royalties accrued in excess of the amounts actually paid. His contention was sustained by the Tax Court. Sections 446(a) and (c) of the Internal Revenue Code of 1954 authorize an accrual basis taxpayer to deduct an obligation in the taxable year in which all the events have occurred which are necessary to establish the fact of liability and the amount thereof with reasonable accuracy. See Treas.Reg. § 1.446-1 (c) (1) (ii). The Commissioner and the Tax Court rely upon the settled principle that a taxpayer using the accrual method of accounting may not deduct any liability until the contingencies relating to such liability are removed. Security Mills Co. v. Commissioner, 321 U.S. 281, 284, 64 S.Ct. 596, 88 L.Ed. 725 (1944); Dixie Pine Co. v. Commissioner, 320 U.S. 516, 518-519, 64 S.Ct. 364, 88 L.Ed. 270 (1944); Lucas v. American Code Co., 280 U.S. 445, 449-451, 50 S.Ct. 202, 74 L.Ed. 538 (1930); American National Co. v. United States, 274 U.S. 99, 104-105, 47 S.Ct. 520, 71 L.Ed. 946 (1927); United States v. Anderson, 269 U.S. 422, 440-441, 46 S.Ct. 131, 70 L.Ed. 347 (1926); Lustman v. Commissioner, 322 F.2d 253, 258 (3d Cir. 1963); Noxon Chemical Products Co. v. Commissioner, 78 F.2d 871 (3d Cir. 1935). These cases hold that if all the events necessary to establish the fact of liability have not occurred, the liability is “contingent” and may not be accrued for purposes of deduction. The Commissioner argues that the accrued royalties deducted in this case fit into the classic mold of contingent liabilities. The taxpayer contends that all the events necessary to establish the fact of liability and the amount thereof with reasonable accuracy in fact occurred during the years" }, { "docid": "20186860", "title": "", "text": "contrary decision was reached in Buromin Co. v. National Aluminate Corporation, D.C.Del., 1947, 70 F.Supp. 214, 216, wbicb held that the equitable doctrine of “unclean hands” cannot be entirely discarded in a declaratory judgment action. The Court of Appeals for the Sixth Circuit has held that a declaratory judgment action is in the nature of an equitable proceeding and the equitable doctrine of laches should be applied. Bliss Co. v. Cold Metal Process Co., 6 Cir., 1939, 102 F.2d 105. A contrary view was reached by the Seventh Circuit in Brennan v. Hawley Products Co., 7 Cir., 1950, 182 F.2d 945. . Of. Shotkin v. General Electric Co., 10 Cir., 1948, 171 F.2d 236; Feddersen Motors v. Ward, 10 Cir., 1950, 180 F.2d 519. . Salsburg v. State of Maryland, 1954, 346 U.S. 545, 553, 74 S.Ct. 280, 98 L.Ed. 281; Davies Warehouse Co. v. Bowles, 1944, 321 U.S. 144, 153, 64 S.Ct. 474, 88 L.Ed. 635; Wampler v. Lecompte, 1930, 282 U.S. 172, 175, 51 S.Ct. 92, 75 L.Ed. 276; Gitlow v. People of State of New York, 1925, 268 U.S. 652, 668, 45 S.Ct. 625, 69 L.Ed. 1138; Atchison, T. & S. F. R. Co. v. Matthews, 1899, 174 U.S. 96, 104, 19 S.Ct. 609, 43 L.Ed. 909; Mugler v. State of Kansas, 1887, 123 U.S. 623, 661, 8 S.Ct. 273, 31 L.Ed. 205. . Sage v. Baldwin, D.G.N.D,Tex.l932, 55 , F.2d 968, 970; State ex rel. Jacobsmeyer v. Thatcher, 1936, 338 Mo. 622, 92 S.W.2d 640; First Nat. Stores v. Lewis, 1931, 51 R.I. 448, 155 A. 534; Ziegler v. Pickett, 1933, 46 Wyo. 283, 25 P.2d 391; National Bank of Colchester v. Murphy, 1943, 384 111. 61, 50 N.E.2d 748; Iowa Motor Vehicle Ass’n v. Board of Railroad Commissioners, 1926, 202 Iowa 85, 209 N.W. 511; Meister v. Carbaugh, 1923, 310 111. 488, 142 N.E. 189; Gibson v. Spikes, 1920, 143 Ark. 270, 220 S.W. 56, and Williams v. MacFeeley, 1938, 186 Ga. 145, 197 S.E. 225. . Cline v. Frink Dairy Co., 1927, 274 U.S. 445, 452, 47 S.Ct. 681, 71 L.Ed. 1146; Fenner v." }, { "docid": "23053240", "title": "", "text": "226, 229; see Sampson v. Murray, 1974, 415 U.S. 61, 86-88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166; National Mediation Board v. Air Line Pilots Ass’n, 1963, 116 U.S.App. D.C. 300, 323 F.2d 305. The finding prior to issuance, most essential to a preliminary injunction, is that the failure to grant it will result in irreparable injury to the person requesting the relief, see Sampson v. Murray, supra, 415 U.S. at 88, 94 S.Ct. at 952; 11 Wright & Miller, Fed.Practice & Procedure § 2948 at 431 (1973). An injunction is an extraordinary remedy and should not issue except upon a clear showing of possible irreparable injury, see Berrigan v. Norton, 2 Cir. 1971, 451 F.2d 790, 793. Appellant strongly urges that parties to a lawsuit have an absolute right to settle their suit and that a court can not enjoin them from settling. Unquestionably the settlement of litigation and the compromise of disputed claims are favored by the courts, e. g. Williams v. First National Bank, 1910, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625; Maulding v. Louisville & N. R. Co., 7 Cir. 1948, 168 F.2d 880, 882; Clark v. Barlow, 1941, 74 App.D.C. 328, 122 F.2d 337, 341, cert. denied, 314 U.S. 675, 62 S.Ct. 188, 86 L.Ed. 540. Courts have consistently held that parties have a right to settle or compromise their litigation without the knowledge or consent of their counsel, The Golden Star, 9 Cir. 1936, 82 F.2d 687; German v. Universal Oil Products Co., 8 Cir. 1935, 77 F.2d 70, 72; Byram v. Miner, 8 Cir. 1931, 47 F.2d 112, 117, cert. denied, 283 U.S. 854, 51 S.Ct. 648, 75 L.Ed. 1461; In Re Baxter & Co., 2 Cir. 1907, 154 F. 22; Swanson v. Chicago, St. P. & K. C. Ry. Co., 8 Cir. 1888, 35 F. 638; Swanston v. Morning Star Mining Co., 8 Cir. 1882, 13 F. 215; Katopodis v. Liberian S/T Olympic Sun, E.D.Va. 1968, 282 F.Supp. 369, 371; Monsanto Chemical Co. v. Grandbush, W.D.Ark.1958, 162 F.Supp. 797, 802; Ruck v. Spray Cotton Mills, M.D.N.C.1954, 120 F.Supp. 944," }, { "docid": "23630197", "title": "", "text": "have been turned over to the foreign representative upon request or pursuant to a § 304 petition; and (4) all of the debts and liabilities of the foreign debtor were originally contracted between the foreign debtor and its creditors in the debtor’s domicile. (Chemical’s Brief at 39). These contentions bespeak a flawed interpretation on the part of chemical of the meaning of subject matter jurisdiction. Subject matter jurisdiction speaks to the competence of a court “to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action.” Noxon Chemical Products Co. v. Leckie, 39 F.2d 318, 320 (3d Cir.1930), cert. denied, 282 U.S. 841, 51 S.Ct. 22, 75 L.Ed. 747 (1930). In the international bankruptcy case In re Deak & Co., Inc., this Court addressed the issue of Bankruptcy Court subject matter jurisdiction: The Code specifically provides the district court where a Chapter 11 case is pending with exclusive jurisdiction over all property of the debtor and the estate. See 28 U.S.C. § 1334(d) (Supp. II 1984). This jurisdictional grant has been referred to bankruptcy judges under 28 U.S.C. § 157(a) (Supp. II 1984). See Standing Order of Referral of Cases to Bankruptcy Judges, July 10, 1984 (S.D. N.Y., Ward, J.) [ (“Standing Order of Referral”)]. Section 1334(d) provides the subject matter underpinning for this court’s jurisdiction in bankruptcy matters; it has been broadly construed consonant with the Code’s policy of adjudicating all claims and interests against property of the estate. Deak & Co., Inc. v. Soedjono, (In re Deak & Co., Inc.), 63 B.R. 422, 426 (Bankr.S.D.N.Y.1986). There can be no doubt that this Case was properly commenced and administered pursuant to § 303(b)(4) of the Code. As noted above, Congress explicitly provided the foreign representative of an estate in a foreign proceeding, the option to commence a plenary bankruptcy case under § 303(b)(4) of the Code. In fact Chemical concedes that the Liquidators “without question” fit the Code’s definition of a foreign representative and that “[bjeyond question, the Axona winding-up or liquidation" }, { "docid": "4347199", "title": "", "text": "nor from promptly' removing the case to the federal court and there seeking his discharge. It pursued none of these obvious and appropriate remedies; instead, it prayed for the appointment of a receiver for the particular purpose for which it now stipulates the money was expended. The record gives rise to a suspicion that appellee wants a disinterested receiver, to pay for feeding its sheep through the winter. But even if the appointment by the state court or the continuation by the federal court was improvident, which we do not intimate, there is no question of jurisdiction, and no reason why the property should not be charged with the expense of preserving it. Burnrite Coal Briquette Co. v. Riggs, 274 U. S. 208, 47 S. Ct. 578, 71 L. Ed. 1002; Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 239, 53 L. Ed. 435; Brictson Mfg. Co. v. Close (C. C. A. 8) 25 F.(2d) 794; Atlantic Trust v. Chapman, 208 U. S. 360, 28 S. Ct. 406, 52 L. Ed. 528, 13 Ann. Cas. 1155. The remedy for an improvident receivership is not to stand by until it is terminated and then to ‘seek relief at the expense of an innocent third party which has advanced moneys to preserve the property in the custody of the court from destruction. The decree appealed from is reversed, with directions to enter a decree adjudging appellant to have a first lien on the proceeds of the mortgage sale for $.3,199.00 with 6 per cent, per annum from January 14,1932, and attorneys fees as provided in the note given by the receiver. Reversed with directions." }, { "docid": "18499640", "title": "", "text": "in court costs and allowances the properties of the true owners, while unduly and without warrant keeping them out of the possession and use of their own. After all, these properties have been in the court since 1947, now seven long years. It is time that something should be done to bring this slow paced, slow moving, proceeding to an end. 'That something is not the appointment of a receiver and of attorneys and other functionaries for the receiver, and the beginning at this late date of a long •drawn out and costly administration just when the court proceedings should be coming to a conclusion in a winding up order. Appointments of receivers by the federal courts over the objections of interested parties have as a rule been closely scrutinized by the appellate courts. As said in Michigan v. Michigan Trust Co., 286 U.S. 334, 52 S.Ct. 512, 76 L.Ed. 1136, receiverships for conservation have a legitimate function but they are to be watched with jealous eyes lest their function be perverted. Cf. Pusey & Jones v. Hanssen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763; Kel-leam v. Maryland Casualty Co., 312 U.S. 377, 61 S.Ct. 595, 85 L.Ed. 899; Gordon v. Washington, 295 U.S. 30, 55 S.Ct. 584, 79 L.Ed. 1282; Cochrane v. W. F. Potts Sons & Co., 5 Cir., 47 F.2d 1026; W. F. Potts Sons & Co. v. Cochrane, 5 Cir., 59 F.2d 375. As appellants correctly say: “In the case of Gordon v. Washington, supra, the court said, ‘A receivership is only a means to reach some legitimate end sought through the exercise of the power of the court of equity; it is not an end in itself. Where a final decree involving the disposition of property is appropriately asked, the court, in its discretion, may appoint a receiver to preserve and protect the property pending its final disposition. For that purpose the court may appoint a receiver of mortgaged property to protect and conserve it pending foreclosure, or of property which a judgment creditor seeks to have applied to the satisfaction of his" }, { "docid": "23297463", "title": "", "text": "whether the original appointment was improvidently made while the latter is addressed to the question whether under presently existing conditions and circumstances the receivership is no longer necessary, but the two are sufficiently related that they may be considered together. It was the claim of plaintiff and the intervenors in each of the cases which were consolidated that they were stockholders in the corporate defendant, that the property of the corporation was being mismanaged, and that as the result of the mismanagement the property was in danger of being lost in whole or in part to the stockholders. Where it is made to appear in an action by a stockholder for fraud, collusion, mismanagement, or intermingling or diversion of funds by officers of a corporation, that there is danger of the property being lost with a resulting diminution in value of the stock, a United States court has power to appoint a receiver to preserve the property pending determination of the case on its merits. Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 47 S.Ct. 578, 71 L.Ed. 1002; Bankers’ Mortgage Co. v. Rupp, 10 Cir., 66 F.2d 992; Orth v. Transit Inv. Corporation, supra. The appointment of a receiver or the refusal to appoint rests in the sound judicial discretion of the trial court, and its ac-tion thereon will not be overturned on appeal unless an abuse of discretion is shown. Fosdick v. Schall, 99 U.S. 235, 25 L.Ed. 339; Milwaukee & M. R. Co. v. Soutter, 154 U.S. 540, 14 S.Ct. 1158, 17 L.Ed 604; Commonwealth of Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841, 96 A.L.R. 1166; Hutchinson v. Fidelity Inv. Ass’n, 4 Cir., 106 F.2d 431, 133 A.L.R. 1061; Lee v. Farmers Co-Op. Ass’n of Mountain View, 189 Okl. 55, 113 P.2d 391. But the power to appoint a receiver with authority to take custody and control of property and operate it as a going concern is a delicate one which is jealously safeguarded, and it should be exerted sparingly. A court should be cautious and circumspect in the exertion of" }, { "docid": "9512634", "title": "", "text": "receiver, induce said creditor to bring the suit and recommend as its own naming, a receiver selected by the company and said secured creditors. * * * It is not the bringing of a suit by a friendly creditor that is objectionable, nor is consent to the entry of a decree, evidence of collusion. It is only when the suit is one for the appointment of a receiver and the nominee proposed for receiver is urged by one who, assuming to speak as a creditor, voices the recommendation of those whose interests are adverse to that of the company and its creditors, that fraud appears.” In the present case Judge Bondy, however, was fully advised that Messrs. Hilles and Zukor were recommended for appointment as receivers by the company as well as by many of the creditors. D. I might observe here, however, that consent receiverships in equity, although nominally based on a party and party suit, are not really so founded. As is well known such receiverships are arranged by the defendant in order to get court protection in the Court of its choice. When, therefore, the corporation itself has thus sought sanctuary and consented to a receivership, necessarily, the court may properly hold that the expenses of the receivership, thus secured, should be charged to the estate of the corporation. Cf. Finneran v. Burton, 291 F. 37, at pages 39 to 40 (C. C. A. 8) and cases there cited; and Burnrite Coal Briquette Company v. Riggs, 274 U. S. 208, 214, 215, 47 S. Ct. 578, 71 L. Ed. 1002. E. One other question which has been raised which should be noticed here is the question whether the receivers and their attorneys and the defendants’ attorney had a duty to defend the equity receivership in the event of its. being attacked. The receivers were officers appointed by the court into whose possession in this instance it put vast properties. It was unquestionably the duty of the receivers, through their attorneys, to endeavor to maintain their status as the appointed fiduciaries of those properties against all attacks. Cf." }, { "docid": "5861214", "title": "", "text": "OPINION OF THE COURT PER CURIAM: This is an appeal from the appointment of a receiver pendente lite in a stockholder’s derivative action wherein the plaintiff alleges inter alia that the individual defendants, Robert Huffines, Victor Muscat and Edward Krock, by virtue of their control of Defiance Industries, Inc., which in turn controlled B.S.F. Company, infiltrated and were able to make themselves officers and directors of certain of B.S.F.’s portfolio companies; that the individual defendants improperly withdrew salaries, obtained bonuses and stock options from those portfolio companies; and that they caused B.S.F. (1) to suffer substantial damage in attempts to gain control of those portfolio companies by requiring large and improper expenditures in legal fees and proxy fights, and (2) to sustain heavy losses as a result of stock purchases and sales they compelled in their own interests without regard to the interests of B.S.F. or its shareholders. It is clear that a District Court may appoint a receiver in a proper case. Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 212, 47 S.Ct. 578, 71 L.Ed. 1002 (1927). A receiver may be appointed to avert further loss of assets through waste and mismanagement. Savage v. United States District Court, etc., 144 F.2d 575. (9th Cir.1944) ; Coskery v. Roberts & Mander Corporation, 97 F.Supp. 14 (E.D.Pa.), appeal dismissed, 189 F.2d 234 (3rd Cir.1951). After a careful examination of the record, we have concluded that there was no abuse of discretion by the District Court in appointing the receiver pendente lite for B.S.F. The District Court primarily relied on the following factors as justifying appointment of a receiver pendente lite [Tanzer v. Huffines, 287 F.Supp. 273, 274 (D.Del.1968)] : (1) The decision of Judge Mansfield in Norte & Company v. Huf-fines, 288 F.Supp. 855 (S.D.N.Y.1968), where the court pointed out that “Plaintiff has established a clear case of gross and deliberate fraud on the part of defendants Huffines and Muscat, knowingly participated in by Krock * * (2) B.S.F.’s non-compliance with the requirements of 15 U.S.C. § 80a-29 by failing to file the Annual Report, Form N-1R, with the" } ]

[ { "docid": "6727096", "title": "", "text": "before 1911. These catalogues showed a great variety of designs tending to support the defense, and, if they do not anticipate, they at least emphasize the trifling character of the distinction upon which the patent must stand. The trial court rejected these, thinking that they were not prior publications within the meaning of the patent law, and basing this conclusion upon Reeves v. Keystone Co., 20 Fed. Cas. 466, 471, No. 11,660; and Britton v. White Co. (C. C.) 61 Fed. 93. We think these catalogues should have been received and considered. Certainly manufacturer’s catalogues so circulated are more effective in spreading information among persons skilled in that art than if the same catalogues were only on file in some public library. Reeves v Keystone Co., arising under the act of 1836 (5 Stat. 117), merely holds that the publication of a manufacturer’s catalogue, which is not found in a library, must be proved by some evidence other than the imprint. Whether such imprint would, under the present statute, be prima facie evidence of publication, need not be decided. The evidence of the superintendent that these catalogues had been sufficiently circulated to bring them to his notice and possession is enough to indicate due publication. The decision in Britton v. White Co. (D. C. Conn.), seems to be in point, but we think it is mistaken. It depends (61 Fed. 95) upon Reeves v. Keystone Co. (which, as we have seen, does not support it), Parsons v. Colgate (C. C.) 15 Fed. 600, and Fermentation Co. v. Koch (C. C.) 21 Fed. 587. The former (D. C. N. Y.) stands upon the distinction that the act of 1836, which governed that patent, called for prior description in a “public work,” instead of in a “printed publication,” as is specified in the present statute. and in the latter (C. C. Mich.) this distinction was overlooked. The second consideration controlling in our minds is the fact that, as early as 1908, defendant was producing and marketing a nappy or berry bowl which is in evidence as Exhibit M, and which was identical" } ]

[ { "docid": "16054891", "title": "", "text": "unfair competition, within the meaning of the statute here invoked. Proctor & Gamble Co. v. Fed. Trade Commission (C. C. A.) 11 F. (2d) 47; Guarantee Veterinary Co. v. Fed. Trade Commission (C. C. A.) 285 F. 853; Royal Baking Powder Co. v. Fed. Trade Commission (C. C. A.) 281 F. 744. The same rule obtains in the English courts. Lemy v. Watson [1915] 31 L. T. 612, and Steinway v. Henshaw, 5 R. P. C. 79. It was the petitioner’s advertising of lauan and tanguile woods as “Philippine mahogany” that has worked deception upon the public. Purchasers from petitioner have relied upon its representations and have sold the products made from these Philippine woods as mahogany. Mahogany wood has had a long-established reputation; deception on the public in the sale of inferior woods, which are not true mahogany (which deception reaches the ultimate purchaser, even though the intermediate customers knew that the woods were not mahogany), is an unfair method of competition in commerce, under section 5 of the Trade Commission Act (38 Stat. 717, 719 [15 USCA § 45]). Warner & Co. v. Lilly & Co., 265 U. S. 526, 44 S. Ct. 615, 68 L. Ed. 1161; Coca-Cola Co. v. Gay-Ola Co. (C. C. A.) 200 F. 720. It was not necessary for the Commission to establish intent to deceive the purchasing public; for the test of unfair /competition was whether the natural and probable result of the use by the petitioner of such woods was deceptive to the ordinary purchaser, and made him purchase that which he did not intend to buy. Fed. Trade Commission v. Balme (C. C. A.) 23 F.(2d) 615; Straus v. Notaseme Hosiery Co., 240 U. S. 179, 182, 36 S. Ct. 288, 60 L. Ed. 590. It is argued that there is a want of public interest, and that the Federal Trade Commission was not justified in assuming jurisdiction under section 5 of the Federal Trade Commission Act (38 Stat. 717, 719). That act provides that, “if it shall appear to the Commission that a proceeding by it in respect thereof" }, { "docid": "12216767", "title": "", "text": "stated by Judge Learned Hand in the case of Jockmus v. Leviton, et al., 28 F. 2d 812 (C.A. 2,1928); \"* * * We are content to follow the ruling in Imperial Glass Co. v. Heisey, 294 F. 267 (C.C.A. 6), that a catalogue distributed generally to a trade is a publication within Revised Statutes § 4886, 35 U.S.C.A. § 31. It may indeed be that such a document was not a ‘public work’ under the act of 1836 (5 Stat. 117), and that Parsons v. Colgate (C.C.) 15 F. 600, was rightly decided, though the brief comment in the opinion does not make the distinction. Reeves v. Keystone Bridge Co., 20 Fed.Cas. 466, No. 11,660, only threw out a doubt, and went off on another point. While it was laid down without discussion in New Process Fermentation Co. v. Koch (C.C.) 21 F. 580, 587, that circulars were not publications, it was unnecessary to the decision and certainly was not its chief reliance. Britton v. White Mfg. Co. (C.C.) 61 F. 93, was decided without discussion, and on the authority of the three cases, just cited, which support it only so far as we have said. The aggregate of these authorities is not so imposing as to cause us any hesitation in following the Sixth Circuit. On principle we are entirely in accord, for the purpose of the statute is apparent, and we ought to effect it so far as its language will allow. While it is true that the phrase, ‘printed publication,’ presupposes enough currency to make the work part of the possessions of the art, it demands no more. A single copy in a library, though more permanent, is far less fitted to inform the craft than a catalogue freely circulated, however ephemeral its existence; for the catalogue goes direct to those whose interests make them likely to observe and remember whatever it may contain that is new and useful.” See also Imperial Glass Co. v. Heisey, 294 F. 267 (C.A. 6, 1923); Hamilton Laboratories v. Massengill, 111 F.2d 584 (C.A. 6, 1940), cert. denied 311 U.S." }, { "docid": "4435174", "title": "", "text": "BUFFINGTON, Circuit Judge. We may say in advance that all the members of this court are in agreement as to the decree that will be entered in this case, although we are not in complete accord concerning every step by which that result is reached. The subject-matter of the litigation is of such magnitude and complexity, and the record is of such size, that the effort to set bounds to this discussion has not been easy. So many questions, large or small, were laid before us in the oral argument, and so many are considered in the extended briefs of counsel, that we cannot hope to give them all a-place in such discussion. But we trust that one or other of the two following opinions will pay adequate attention to the most_ important, with the result of avoiding repetition as far as possible, while presenting somewhat different aspects of the controlling principles by which the case must be decided. Without a needless expansion of the discussion, it would scarcely be practicable to take up each detail for the purpose of pointing out just where we are in complete agreement, and where certain divergencies of view exist. We have thought it best, therefore, to adopt the course referred to, believing that the two opinions will cover the whole case, and will also sufficiently indicate the reasons that have led us to a common conclusion. This case — a proceeding under the Sherman Anti-Trust Taw — is largely one of business facts. The construction of that statute has been settled by the Supreme .Court. Standard Oil Co. v. United States, 221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 T. R. A. (N. S.) 834, Ann. Cas. 1912D, 734; United States, v. American Tobacco Co., 221 U. S. 106, 31 Sup. Ct. 632, 55 L. Ed. 663. That construction has been applied in this circuit in the Keystone Watch Case (D. C.) 218 Fed. 502, and the Powder Trust Case (C. C.) 188 Fed. 127. It follows, therefore, that our duty is largely one of finding the facts" }, { "docid": "23080275", "title": "", "text": "implicitly recognizes there is no possibility of producing the plant from a disclosure as 35 U.S.C. 112 contemplates. Therefore, there is no requirement for any how-to-make disclosure in the application for a plant patent. The mere description of the plant is not necessarily an “enabling” disclosure. Such descriptions, just as in the case of other types of inventions, in order to bar the issuance of a patent, must be capable, when taken in conjunction with the knowledge of those skilled in the art to which they pertain, of placing the invention in the possession of those so skilled. The descriptions of the new roses in the instant publications, are incapable of placing these roses in the public domain by their descriptions when interpreted in the light of the knowledge now possessed by plant breeders. The roses disclosed in the appealed applications are not, therefore, “described in a printed publication” within the meaning of 35 U.S.C. 102(b). The decision of the Board of Appeals is reversed. Martin, J., sat but did not participate because of illness. Sec. 161. Patents for plants. Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided. (July 19, 1952, ch. 950, 66 Stat. 804; Sept. 3, 1954, ch. 1259, 68 Stat. 1190.) This section is derived from 35 U.S.C. (1946 ed.) 31, R.S. 4886, Act of Mar. 3, 1897, c. 391, which was derived from Act of July 8, 1870, c. 230, sec. 24, 16 Stat. 201. The Act of 1836, e. 357, 5 Stat. 117, sec. 7, referred to “printed publications,” while the Act of 1793, c. 11, 1 Stat. 318, sec. 6, referred to being “described in some public work.” Sugar Cane—Bourne v. Jones, 114 F. Supp. 413, 98 USPQ 206. Dream Navel" }, { "docid": "6485427", "title": "", "text": "exact copy of said body combined with a different cover. Defendant claims that these statements limit the second claim of the patent to a construction containing both features exactly, or the exact body and any style of cover, or the exact cover and a somewhat similar body. The patent office has allowed the separate claims. It does not seem that a mere statement by counsel of a reason why it was desirable to include them in a single patent should estop the patentee to claim what was clearly granted him under said patent. Separate claims for the entire design and for its separate parts were properly allowed. Dobson v. Carpet. Co., 114 U. S. 439, 446, 5 Sup. Ct. 945. Defendant further claims that, admitting the novelty of the complete design, the state of the art shown by certain exhibits limits the construction of the patent to a claim for the design as an entirety. Defendant’s exhibit, “L’Eeluse Lamp,” shows a glass body of the exact shape covered by the first claim of the patent in suit, but without the metal calyxes at the base, and with downwardly extending ornaments not found in the patented design. This drawing is not accompanied by any printed description, but is contained in a pamphlet, which appears to be a mere trade circular of “Ch. De L’Eeluse, Paris,” and which had been in the possession of one of defendant’s witnesses since November, 1888. There is no evidence that it was ever actually published, or intended for general use, or accessible to the public. Complainants objected to its introduction, on the ground that it was not such a printed publication as would anticipate a patent. The objection is well taken. Rob. Pat. §§ 325, 326; Reeves v. Bridge Co., 5 Fish. Pat. Cas. 467, 468; Fermentation Co. v. Koch, 21 Fed. 587; Parsons v. Colgate, 15 Fed. 600; In re Atterbury, 9 O. G. 640. Defendant’s exhibit, “Haladee Lamp,” is a rough wood cut of a carriage lamp, having the outlines of, and bearing a general resemblance to, a tulip, and having curved engraved lines" }, { "docid": "12454765", "title": "", "text": "use of any of the above noted material as an anticipatory publication, the date of release following declassification is the effective date of publication within the meaning of the statute. “For the purpose of anticipation predicated upon prior knowledge under 35 U.S.C. [§] 102(a) the above noted declassified material may be taken as prima facie evidence of such prior knowledge as of its printing date even though such material was classified at that time. When so used the material does not constitute an absolute statutory bar and its printing date may be antedated by an affidavit under Rule 131 [35 U.S.C.A., Appendix], (Notice of Feb. 24, 1947, Revised.)” (Manual of Patent Examining Procedure, Second Edition, November 1953, Rev. 3, June 1957). . 35 U.S.O.A. § 102(b). Provisions against “sale” or “use” beyond a certain period have a long history. There were similar ones in the first Patent Act of 1790 (Ch. 34) which were carried over into the Act of 1793 (Oh. 11). They have been retained despite frequent amendments to those statutes. See, Patent Act of 1836, §§ 6, 7 and 15, 5 Stat. at Large 117; Patent Act of 1839, § 7, 5 Stat. at Large 353; Patent Act of 1865, § 61, 13 Stat. at Large 533; Revised Statutes, 1874, § 4920; Patent Act of 1952, 35 U.S.O.A. § 102. . Consolidated Fruit-Jar Co. v. Wright, 1876, 94 U.S. 92, 94, 24 L.Ed. 68; Smith & Griggs Mfg. Co. v. Sprague, Adm’x, 1887, 123 U.S. 249, 256, 8 S.Ct. 122, 31 L.Ed. 141; Covert v. Covert, C.C.W.D.N.Y.1901, 106 F. 183, 187-188; Burke Electric Co. v. Independent Pneumatic Tool Co., 2 Cir., 1916, 234 F. 93; Lorenz v. Colgate-Palmolive-Peet Co., 3 Cir., 1948, 167 F.2d 423, 429-430; Baumler v. Ford Motor Co., D.C.Minn.1949, 89 F.Supp. 218, 220-221. Pitts v. Hall, C.C.N.Y.1851, 2 Blatchf. 229, Fed.Cas. No. 11,192, 19 Fed.Cas. 754, contains a statement by Circuit Justice Nelson giving the reason for the rule which has been quoted very often by courts (including the Supreme Court in Consolidated Fruit-Jar Co. v. Wright, supra, 94 U.S. at page 94): “" }, { "docid": "4278354", "title": "", "text": "of carbonic acid is introduced into the beer immediately after the casks are bunged, while afterwards any surplus of said acid generated into the casks is lot off into the free air. The brewer is thus enabled to regulate the pressure equally in all casks connected with the apparatus to any desired degree.” This is all there is in the circular by way of specification. It is true that annexed to it there is an incomplete drawing which might possibly, to a skilled workman, give an idea as to the real construction of the device, but, tested by the definition found in the two cases above cited, it seems to me to fall considerably short of the particularity required in a patent, or in a publication claimed to anticipate a patent. It is stated by l)r. Fringa, the expert, as a reason for omitting to describe them fully, that Meller was afraid that somebody might steal his invention. It has been frequently held that drawings alone, unaccompanied by letter-press description, will never invalidate a patent. In re Atterbury, 9 O. G. 640; Judson v. Cope, 1 Fisher, 615; Reeves v. Keystone, etc., Co. 5 Fisher, 456. Second. It has been held generally, and perhaps universally, that business circulars which are sent only to persons engaged or supposed to be engaged in the trade, are not such publications as the law contemplates in section 4886. Pierson v. Colgate, 24 O. G. 203; In re Atterbury, 9 O. G. 640; Judson v. Cope, 1 Fisher, 615; Reeves v. Keystone Co. 5 Fisher 456; Seymour v. Osborne, 11 Wall. 555. • Upon the whole, I have come to the conclusion, I confess with a good deal of hesitation, that Pfaudler is the prior patentee, and that plaintiff’s bill must be dismissed. See New Process Fermentation Co. v. Maus, 20 Fed. Rep. 725." }, { "docid": "6485428", "title": "", "text": "in suit, but without the metal calyxes at the base, and with downwardly extending ornaments not found in the patented design. This drawing is not accompanied by any printed description, but is contained in a pamphlet, which appears to be a mere trade circular of “Ch. De L’Eeluse, Paris,” and which had been in the possession of one of defendant’s witnesses since November, 1888. There is no evidence that it was ever actually published, or intended for general use, or accessible to the public. Complainants objected to its introduction, on the ground that it was not such a printed publication as would anticipate a patent. The objection is well taken. Rob. Pat. §§ 325, 326; Reeves v. Bridge Co., 5 Fish. Pat. Cas. 467, 468; Fermentation Co. v. Koch, 21 Fed. 587; Parsons v. Colgate, 15 Fed. 600; In re Atterbury, 9 O. G. 640. Defendant’s exhibit, “Haladee Lamp,” is a rough wood cut of a carriage lamp, having the outlines of, and bearing a general resemblance to, a tulip, and having curved engraved lines at its base, printed in a bound volume entitled “The Coachmaker’s Monthly Magazine. C. W. Snladee, Proprietor. New York, April, 1855,” which had been in the possession of one of defendant’s witnesses since 1873. The complainants objected to this exhibit also, on the ground that it was not a printed publication; and, furthermore, because it was not set up in the answer, I think the Saladee Coach-maker’s Monthly Magazine is admissible as a printed publication, to show the state of the art. The number containing this lamp in question has printed on it, “New York, April, 1855,” is bound up with other numbers for the years 1855 and 1856, and refers to its advertisements, and gives terms therefor. It purports to be printed for general circulation, and is characterized as a publication by the witnesses for defendant. These circumstances furnish sufficient prima facie evidence of publication. Rob. Pat. § 328; Reeves v. Bridge Co., supra; In re Atterbury, supra. While, therefore, the defendant could not derive any advantage from this evidence in support of a" }, { "docid": "22231868", "title": "", "text": "Taking into consideration all the facts in this case, is it free from doubt that a customer who used the above-described flour, raisins, raisin syrup, and baking powder in baking bread ’and pastries would not conclude that the flour was produced and sold by the same person who sold and produced the other articles? Confusion in origin,, we think, would be likely to result even though the articles differed in many of their inherent characteristics. The fact that raisin syrup is a-liquid, while wheat flour is a powdered grain, and that one is the product of a fruit and the other of a cereal, under the circumstances of this case would not insure against confusion where identical or almost identical trade-marks are used. In determining whether the merchandise of one is of the same descriptive properties as the merchandise of another, within the meaning of the proviso in section 5 of the Trade-Mark Act (15 USCA § 85), we must take into consideration what Congress was attempting to do. In its attempt'to prevent confusion was confusion as to the origin of the goods in mind? If it was not, then its legislative effort would not be in furtherance of and in harmony with the common law but a step in another direction. We must not impute such an intent to the framersi of the act. It will not be seriously contended here or elsewhere, we think, that confusion in origin which results from the fact that one person by the use of another’s trade-mark leads the public to believe that his goods are made by the other, is not mischief which equity will prevent. Aunt Jemima Mills Co. v. Rigney & Co. (C. C. A.) 247 F. 407, L. R. A. 1918C, 1039; Del Monte Special Food Co. v. California Packing Corp. (C. C. A.) 34 F.(2d) 774. In sections 16, 17, 18, 19, 20, and 21 of the Trade-Mark Act (15 USCA §§ 96-101), great care was taken to provide for actions at law and equity for the purpose of carrying out the intent of the law. “Confusion” in" }, { "docid": "13393225", "title": "", "text": "No* body -then thought of “drama” or “dramatic work” in terms of motion pictures. A moving picture play is utterly different from anything then conceivable — -an entirely new method of communicating ideas. • Copyright statutes were originally intended to control copying. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 S. Ct. 722, 52 L. Ed. 1086; Jeweler’s Circular Pub. Co. v. Keystone Pub. Co., 281 F. 83, 26 A. L. R. 571 (C. C. A. 2). Until Kalem Co. v. Harper Bros., 222 U. S. 55, 32 S. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285, the development of copyright law had been strictly statutory; it had not been extended by judicial enlargement of existing law. Statutes were required to give authors of dramatic works a monopoly of the spoken performance of them (Act of August 18, 1856 [11 Stat. 138]), and to give composers control of public performances of their music or operas. The Mikado Case (C. C.) 25 F. 183, 187; 17 USCA § 1 (e). When mechanical instrumentalities were invented to reproduce music and sound, statutory action was again necessary in order to protect composers; it being held that the copyright on the printed music did not give a monopoly of audible reproduction of it by perforated rolls. White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 28 S. Ct. 319, 52 L. Ed. 655, 14 Ann. Cas. 628. There are now special provisions in the statute dealing with talking-machine records (section 1, e), and also special provisions concerning infringement by mechanical reproduction which is, however, limited to musical works (section 25). As a general rule, the effect of a new invention in any given field seems to be a matter for legislative consideration, rather than for the extension of existing statutes by judicial construction. Cases supra; and see McBoyle v. United States (March 9, 1931), 51 S. Ct. 340, 341, 75 L. Ed. ——, where the Dyer Act (18 USCA § 408), relating primarily to stolen motor vehicles, which by its terms included “any other self-propelled vehicle not designed" }, { "docid": "23080279", "title": "", "text": "to “break the chromosome code” may also add to the knowledge of plant breeders so that they may someday secure possession of a plant invention by a description in a printed publication as is now possible in other fields of inventive effort. In considering this assertion, it should be borne in mind that we are here dealing with an alleged description in a printed publication of applicant’s own roses, whereas in the Cohn case, the description in the printed publication was that of an invention made by a prior inventor, thus in a strict sense, the Cohn case is dealing with a situation covered by 35 U.S.C. 102(a) rather than the technical bar of 35 U.S.C. 102(b). An analogy also may be drawn between the pictures of the roses shown in the printed publications and pictures of machines in printed publications which have been held to be insufficient descriptions of the patented invention. See footnote 1, Robinson on Patents, Sec. 326, in which it is stated : That a picture or drawing without printed text is not a publication, see New Process Fermentation Co. v. Koch (1884), 21 Fed. Rep. 530; 29 O.G. 535: Reeves v. Keystone Bridge Co. (1872), 1 O.G. 466; 5 Fisher, 456; 9 Phila. 368; Judson v. Cope (1860), 1 Bond, 327 ; 1 Fisher, 615." }, { "docid": "23243900", "title": "", "text": "made the matrix from which eventually, apparently in April, they began to manufacture and sell. When Revised Statutes, § 4886 (Comp. St. § 9430), prescribes that a patentable invention must not be “known or used” by others, it means something quite different from the prior public use by which it may be abandoned. In the case at bar Nathan clearly did not use the pads before January 16, 1919; indeed none were made. Were they “known” in the sense which the statutes uses the term? The word has acquired a somewhat esoteric meaning, imputed by the courts to accomplish the purpose of the statute. Mere acquaintance with the invention, even if disclosed, is not enough; nothing short of “reduction to practice” will do, whatever that may mean. Reed v. Cutter, 1 Story, 590, 599, Fed. Cas. No. 11,645; Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821; Stitt v. Eastern R. R. Co. (C. C.) 22 F. 649; Imperial Brass Co. v. Nelson, 203 F. 484, 121 C. C. A. 606 (C. C. A. 7); Buser v. Novelty Co., 151 F. 478, 81 C. C. A. 16 (C. C. A. 6). All this is very old law, though it is by no means always easy to ascertain just when “reduction” has taken place, for the books, perhaps wisely, are reticent of positive definition. We are, however, relieved in the ease at bar from deciding whether the earlier invention must always take tangible embodiment and bo ready for immediate use; whether no description in words or figures will serve, unless they be in a public document. We think that Exhibit W, although a model made by hand, would have been under any rule adequate “reduction to practice,” had the date of its production boon certainly fixed. While it is called a “model,” it was not truly such, but rather, as we have called it, a matrix from which the working molds were to be made. Taken by itself it was a perfect example of the invention, as complete and perfected as its replicas whieh were sold. But, because of the" }, { "docid": "16055170", "title": "", "text": "to which they are destined, “or retain same on board until the vessel’s return trip.” This provision as to retention of the goods until the return trip would seem surplusage, if the clause previously discussed gives a general liberty to carry them beyond the port of destination. This argument is alluded to in the Rosenberg opinion, supra. See, also, U. S. Shipping Board v. Bunge & Bern, 41 Times Law Rep. 73. The Rosenberg Case was reversed by the Supreme Court in an opinion handed down on February 20, 1928. 48 S. Ct. 256, 72 L. Ed. -. The ground of reversal is that the suit was barred by the limitation contained in section 5 of the Suits in Admiralty Act (41 Stat. 525 [46 USCA § 745; Comp. St. § 12511/4d]). The opinion implies, though it does not decide, that the Fleet Corporation may be sued under the act upon its contracts. In the court below and in its brief filed in this court the appellant argued that it was acting as a public agent of the United States, and was not itself suable. We do not understand that this argument is now pressed; but in any event we think it clear that section 2 of the act (46 USCA § 742; Comp. St. § 1251/4a) permits a suit in personam “against such corporation” in eases “where if such vessel were privately owned or operated * * * a proceeding in admiralty could be maintained. * * Providence Engineering Corp. v. Downey Shipbuilding Corp., 294 F. 641 (C. C. A. 2); Dietrich v. United States Shipping Board E. F. Corp., 9 F.(2d) 733 (C. C. A. 2). With respect to the Smith suit the appellant contends that the libelant had no title to the cause of action, because the assignment to him was void under section 3477 of the Revised Statutes (31 USCA § 203). This question was not presented to the trial court, is not covered by any assignment of errors, and was first suggested in appellant’s reply brief. Under these circumstances it is not properly before us." }, { "docid": "23486759", "title": "", "text": "entitled to the unobstructed use of every part of a navigable river. Georgetown v. Alexandria Canal Co., 12 Pet. 97, 9 L. Ed. 1012; Clement v. Metropolitan West Side El. Ry. Co. (C. C. A.) 123 F. 271. Furthermore, the matter is regulated by the Act of Congress of March 3, 1899, 30 Stat. 1151; 33 USCA § 403, which declares that the creation of any obstruction not authorized by Congress to the navigable capacity of any waters of the United States is prohibited. The bridge, having cited the special acts of Congress and the permite of the Secretary of War as justifying its existence, has the burden of proof to show that, in its erection and maintenance, it conformed to the requirements, for grants of this kind against the public right must be strictly construed. Pa. R. Co. v. Baltimore & New York Ry. Co. (C. C.) 37 F. 129; Thom v. City of South Amboy (D. C.) 236 F. 289; Texarkana & Ft. S. Ry. Co. v. Parsons (C. C. A.) 74 F. 411; Hannibal & St. J. R. Co. v. Missouri River Packet Co., 125 U. S. 260, 8 S. Ct. 874, 31 L. Ed. 731. The overwhelming weight of the evidence indicates that the bridge has failed to meet this burden and is subject to the legal consequences of its failure. What they are is set out with precision, for the purposes of this ease, in the decisions of the Circuit Court of Appeals for the Fourth Circuit in The Cromwell, 259 F. 166; Savannah & N. Y. Transportation Co. v. Klaren Bridge Co. (C. C. A.) 252 F. 499. It is there laid down that the official approval by the government of the construction of the bridge is conclusive that the bridge is a lawful structure, although it interferes with navigation, and, if a moving vessel collides with the bridge, there is a presumption of negligence on the part of the vessel, which must approach the bridge with reasonable skill and care to avoid injuring it, having in mind the difficulty and peril occasioned by" }, { "docid": "13393224", "title": "", "text": "“And that the exhibitor should not be liable for an innocent infringement?” Mr. T'ownsend: “That was the understanding of the lawyers on the Committee.” The rather lengthy discussion from which this excerpt is taken makes it clear that the House.understood that neither under the,existing law, nor under the proposed amendment, was an unlawful exhibition of the copyrighted film, an infringement of the copyright. It should require unambiguous language in a statute to the contrary to warrant disregarding such clearly proved legislative intent. The only part of section 1 whieh can possibly be regarded as having that effect, as it seems to me, is clause (d) relating to “drama” or “dramatic work.” If the film itself be regarded as a drama, the Kalem decision applies. The provisions about “drama” -and “dramatic work” in this section go back to the Act of 1856 and relate to the written and spoken drama as then known. They have since been revised and extended, the last time in 1909, when as above stated moving pie* tures were still unknown commercially. No* body -then thought of “drama” or “dramatic work” in terms of motion pictures. A moving picture play is utterly different from anything then conceivable — -an entirely new method of communicating ideas. • Copyright statutes were originally intended to control copying. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 S. Ct. 722, 52 L. Ed. 1086; Jeweler’s Circular Pub. Co. v. Keystone Pub. Co., 281 F. 83, 26 A. L. R. 571 (C. C. A. 2). Until Kalem Co. v. Harper Bros., 222 U. S. 55, 32 S. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285, the development of copyright law had been strictly statutory; it had not been extended by judicial enlargement of existing law. Statutes were required to give authors of dramatic works a monopoly of the spoken performance of them (Act of August 18, 1856 [11 Stat. 138]), and to give composers control of public performances of their music or operas. The Mikado Case (C. C.) 25 F. 183, 187; 17 USCA § 1 (e). When mechanical" }, { "docid": "11140284", "title": "", "text": "compensation has not been fixed by the Rederal Statutes, upon which, as appears from the cases collected and digested in Gunckel’s Costs in Rederal Courts, §§ 15 to 17, inc., ]). 42 et seq., a great diversity of opinion has been expressed; or to determine whether in such case the standard adopted should be the reasonable charges customarily allowed for similar services in the place where the depositions were taken (Sedgwick v. Grinnell, 10 Ben. 6, 21 Fed. Cas. 979; Kitchin v. Parker [D. C.] 27 Fed. 480); or the fees now allowed by the Revised Statutes to clerks and formerly to commissioners of the Circuit Court for similar services (Jerman v. Stewart [C. C.] 12 Fed. 276; United States v. Construction Co. [C. C.] 158 Fed. 833, 834); or a sum fixed by the practice in the particular circuit (Edison Light Co. v. Elec. Co. [D. C.] 63 Fed. 559); or the established rate of charges in the State courts (Indianapolis Water Co. v. Straw-Board Co. [C. C.] 65 Fed. 534). ’Nor is it necessary to determine the effect of the 8th clause of the former 67th equity rule in reference to the taxation of the expenses of taking down depositions by a stenographer other than the officer taking the deposition^. The sole question now presented is as to the costs which may be properly taxed where the depositions are taken before a notary public, who is himself a stenographer, and who, instead of writing out the depositions, takes them down stenographically and afterwards reduces them to typewriting. By the Act of August 15, 1876, c. 304, 19 Stat. 206, notaries public of the several states were authorized to take depositions and do all other acts in relation to taking testimony to be used in the courts of the United States “in the same manner and with the same effect as commissioners of the United States Circuit Court may now lawfully take or do.” At that time section 847 of the Revised Statutes provided that the fees of the commissioners, that is, commissioners of the Circuit Courts (R. S." }, { "docid": "13726909", "title": "", "text": "C.] 89 Fed. 526, 528, and Sumner v. Caswell [D. C.] 20 Fed. 249, 252, 253, decisions by Judge Addison Brown); so as respects an improper distribution or loading of the cargo (The Oneida, 128 Fed. 687, 689, 63 C. C. A. 239 [C. C. A. 2]; The G. B. Boren [D. C.] 132 Fed. 887, 888; The William Power [D. C.] 131 Fed. 136, 137); or overloading a particular part of a vessel (The Kate [D. C.] 91 Fed. 679, 680, per Judge Addison Brown). It must follow, if it is not obvious, that the capacity of a vessel and the tonnage of its cargo are likewise vitally related as respects the fact of unseaworthiness. In Cincinnati Firemen's Mutual Ins. Co. v. May, 20 Ohio, 212, 226, Chief Justice Hitchcock said: “That the overloading a vessel renders her unsea-worthy, there can be no doubt.” This is in accord with the rule laid down by Earle, C. J., in Foley v. Tabor, 2 P. & F. 663, 664, 665, 671. 672, by the Eord Chancellor, in Steel v. State Line Steamship Co., 3 App. Cas. 72, 77, and by Lord Wensleydale in 14 Moo. P. C. C. 471, 492, 497, 2 Arnould on Marine Ins. (7th Ed.) p. 814, § 717, and Parsons on Maritime Law, p. 137; and no decision to the contrary has come to our attention; indeed, the same rule is clearly implied in the provision of the Harter Act whch requires the owner to make his vessel “seaworthy and capable of performing her intended voyage” (27 Stat. 445, § 2). It results that seaworthiness must be tested by the facts and circumstances of each particular case (see in addition to cases above cited Ins. Nav. Co. v. Farr & Bailey Mfg. Co., 181 U. S. 218, 224, 21 Sup. Ct. 591, 45 L. Ed. 830); and the advantages derived in the court below through observation of tire witnesses cannot be overlooked. (2) Concerning the finding of unseaworthiness, it is objected that the trial court erroneously placed upon appellant the burden of proving that the ship was" }, { "docid": "6727095", "title": "", "text": "the District Court concluded that there was infringement. This result is not seriously questioned, if the patent is given even that minimum narrow scope which it must have in order to be treated as valid. While recognizing the rule that’ a design patent must disclose something more than ordinary skill in arrangement of common features in order to be valid (Boldt v. Nivison Co. [C. C. A. 6] 194 Fed. 871, 114 C. C. A. 617; Mygatt v. Schaffer [C. C. A. 2] 218 Fed. 827, 134 C. C. A. 515; Steffens v. Steiner [C. C. A. 2], 232 Fed. 862, 147 C. C. A. 56), the District Court also concluded that this patent successfully passed that test. We are compelled to reach the opposite conclusion; and, in so doing, we depend particularly upon two considerations. The first is this: The defendant produced printed catalogues of different glass manufacturers, including some of its own, all evidently issued for circulation among the trade, and all of which defendant’s superintendent testified had been in his possession since before 1911. These catalogues showed a great variety of designs tending to support the defense, and, if they do not anticipate, they at least emphasize the trifling character of the distinction upon which the patent must stand. The trial court rejected these, thinking that they were not prior publications within the meaning of the patent law, and basing this conclusion upon Reeves v. Keystone Co., 20 Fed. Cas. 466, 471, No. 11,660; and Britton v. White Co. (C. C.) 61 Fed. 93. We think these catalogues should have been received and considered. Certainly manufacturer’s catalogues so circulated are more effective in spreading information among persons skilled in that art than if the same catalogues were only on file in some public library. Reeves v Keystone Co., arising under the act of 1836 (5 Stat. 117), merely holds that the publication of a manufacturer’s catalogue, which is not found in a library, must be proved by some evidence other than the imprint. Whether such imprint would, under the present statute, be prima facie evidence of publication," }, { "docid": "13282281", "title": "", "text": "conferred the statutory authority upon the designated judge. The power to designate, granted by 28 USCA § 22, is plainly administrative, and parties are not subject to the peril that everything decided may be upset, unless they can satisfy another court that there was adequate occasion for its exercise. The situation is the samo as in People ex rel. Saranac Land & Timber Co. v. Extraordinary Special & Trial Term of Supreme Court, 220 N. Y. 487, 116 N. E. 384, for it does not matter that the condition is the “public interest,” rather than the appointing judge’s “judgment” of that interest. Section 22 was indeed originally the same as sections 17, 26 and 21 in this regal'd (28 USCA §§ 17, 20, 21), but the section was recast generally in 1922 (42 Stat. 839 [28 USCA §1 22]), and the failure to retain the original phrase was certainly not intended to have such far-reaching consequences. It cannot be that the act of the Chief Justice, for example, or of a Circuit Justice, is to be subjected to a scrutiny when designating a Circuit Judge, to which it is not open in the case of a District Judge. The power can indeed be abused, but the remedy may be worse than the evil; it is not to the courts that the public must look for correction. We have said that if the rules were directory only, we would not consider their validity in this suit, because that question must ho raised by direct attack. Unless the appellees had no other recourse, this was the proper way. Grant v. A. B. Leach & Co., 280 U. S. 351, 359, 50 S. Ct. 107, 74 L. Ed. 470; Lively v. Picton, 218 F. 401, 408 (C. C. A. 6); Wagner Electric Mfg. Co. v. Lyndon, 282 F. 219 (C. C. A. 8); Blake v. District Court, 59 F.(2d) 78 (C. C. A. 9). They answer that they did have no other recourse, because they could not safely intervene in the American Brake Shoe Company suit under Equity Rule 37 (28 USCA §" }, { "docid": "12216766", "title": "", "text": "also by the testimony of the former president of Chattanooga Welding & Machine Company and by the president and the general manager of the Mason Iron & Metal Company, who, on the basis of having read the brochure, initiated correspondence with the Chattanooga Welding & Machine Company in September of 1955 which led to the purchase of a baling press in November of 1955. The plaintiff contends that an advertising brochure sent to persons in the trade is not a “printed publication” within the meaning of § 102(b), and in support of this position relies upon the cases of New Process Fermentation Co. v. Koch, 21 F. 580 (D.Mich., 1884) and Judson v. Cope, 1 Fish.Pat.Cas. 615, Fed.Cas. No. 7565 (C.C.Ohio, 1860). Not only do these cases speak in terms of “drawings alone” being insufficient to constitute an invalidating prior printed publication, but both reason and more recent and persuasive authority establish that an advertising brochure or catalogue distributed generally to a trade may be a “printed publication” within the meaning of § 102(b). As stated by Judge Learned Hand in the case of Jockmus v. Leviton, et al., 28 F. 2d 812 (C.A. 2,1928); \"* * * We are content to follow the ruling in Imperial Glass Co. v. Heisey, 294 F. 267 (C.C.A. 6), that a catalogue distributed generally to a trade is a publication within Revised Statutes § 4886, 35 U.S.C.A. § 31. It may indeed be that such a document was not a ‘public work’ under the act of 1836 (5 Stat. 117), and that Parsons v. Colgate (C.C.) 15 F. 600, was rightly decided, though the brief comment in the opinion does not make the distinction. Reeves v. Keystone Bridge Co., 20 Fed.Cas. 466, No. 11,660, only threw out a doubt, and went off on another point. While it was laid down without discussion in New Process Fermentation Co. v. Koch (C.C.) 21 F. 580, 587, that circulars were not publications, it was unnecessary to the decision and certainly was not its chief reliance. Britton v. White Mfg. Co. (C.C.) 61 F. 93, was decided" } ]

[ { "docid": "22818532", "title": "", "text": "free speech and assembly, which were not waived. In resolving this ambiguity, the judge concluded that “[n]o release executed pursuant to the settlement agreement waive[d] the right of any member of the class to seek any action by the PSC.” 710 F.Supp. at 1448. This interpretation is not clearly contradicted by the settlement language or any other record evidence. Absent evidence demonstrating clear error, we defer to the ruling of the district court. D. Finally, we address various objections to the attorneys’ fees awarded by the district court. LILCO challenges the decision of the district court to award attorneys’ fees to Nassau County, the Business Ratepayers, the qui tam plaintiffs, and Grumman Corporation. We affirm these awards as within the discretion of the district court for the reasons correctly stated by the court at 710 F.Supp. 1481-84. Suffolk challenges the decision of the district judge to deny its fee application in its entirety. We agree with this challenge and, hence, we reverse on this claim and remand for a determination of reasonable attorneys’ fees to be awarded to Suffolk. Suffolk premises its claim for attorneys’ fees on the equitable fund doctrine. This long-established doctrine is designed “to permit ‘fair and just allowances for expenses and counsel fees to [those] parties promoting the litigation.’ ” City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977) (quoting Trustees of the Internal Improvement Fund v. Greenough, 105 U.S. 527, 536, 26 L.Ed. 1157 (1881)). “The theory is that an attorney whose actions have conferred a benefit upon a given group or class of litigants may file a claim for reasonable compensation for his efforts.” Id. The key consideration in determining whether an award is justified is the value to the class of the legal work performed for its benefit. In this case, it is clear that the efforts of Suffolk’s attorneys substantially benefitted the class. Suffolk’s attorneys conducted, to the benefit of the class, virtually all of the pre-trial discovery and motion practice, including motions for class certification. Its counsel were the only plaintiff attorneys who conducted the two-month trial, which" } ]

[ { "docid": "20940557", "title": "", "text": "the range of choices appropriate to the issue at hand; at the same time, a decision outside those limits exceeds or, as it is infelicitously said, ‘abuses’ allowable discretion.” (citations omitted)). IV. The Common Fund Doctrine We now turn to the Claims Court’s award of attorney fees under the common fund doctrine. The common fund doctrine is rooted in the traditional practice of courts of equity and derives from the equitable power of the courts under the doctrines of quantum meruit, Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 128, 5 S.Ct. 387, 28 L.Ed. 915 (1885), and unjust enrichment, Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1881). Under the common fund doctrine, “a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to [ ] reasonable attorney[ ] fees from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) (citations omitted). Our analysis requires three steps. First, we address whether the circumstances of this case creates a common fund. We then address whether the common fund doctrine is applicable under RCFC 23 class actions. Finally, we determine whether an attorney may recover attorney fees under the common fund doctrine in lieu of reasonable attorney fees provided by the URA. We take each of these issues in turn. A. A Common Fund Exists The Woodleys and the Government assert that, contrary to the Claims Court’s determination, “[t]here is no common fund.” Woodley Br. 12. Specifically, the Government argues that “[t]he bundling of individual payments so [c]lass [cjounsel can conveniently collect fees cannot transform separate payments into a ‘common fund’ entitling [cjlass [c]ounsel to common-fund fees.” Government Br. 38. In response, the Haggarts argue that the Woodleys and the Government’s contention that the Claims Court’s “award was merely a ‘bundling’ of individual claims is [] puzzling” because “[a]ll class actions, and hence all class action settlements, are necessarily a bundling of individual claims.” Haggart Br. 41. The issue here is whether" }, { "docid": "15108949", "title": "", "text": "arm’s-length and possessing all pertinent information, have recommended the present settlement, and their views are entitled to respect. Plaintiffs’ reliance on circumstantial and accretive evidence to establish scienter and the inherently speculative nature of losses incurred place severe obstacles to proving both liability and damages. Although an award in excess of the settlement value might be a possibility at trial, the settlement is well within the range of reasonableness identified by the Third Circuit in Girsh. In sum, the relative considerations weigh in favor of the proposed Stipulation of Settlement, and it accordingly will be approved. III. A. The Supreme Court has recognized that a “litigant who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980); see also Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 257, 95 S.Ct. 1612, 1621, 44 L.Ed.2d 141 (1975); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393, 90 S.Ct. 616, 626, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164-66, 59 S.Ct. 777, 779-80, 83 L.Ed. 1184 (1939); Central R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Trustees v. Greenough, 105 U.S. 527, 532-37, 26 L.Ed. 1157 (1882). This common fund doctrine rests on the perception that individuals who profit from a lawsuit “without contributing to its costs are unjustly enriched at the successful litigant’s expense.” Boeing Co., 444 U.S. at 478, 100 S.Ct. at 749. To prevent this inequitable result, a court may assess fees against the entire fund and thereby spread litigation costs proportionately among those whom the suit benefits. Id. Similarly, the Third Circuit has noted that in the class action context, attorneys who create a settlement fund are entitled to recover fees against that fund. “The award of fees under the equitable fund doctrine is analogous to an action in quantum meruit; the individual seeking compensation has, by his" }, { "docid": "22970114", "title": "", "text": "action common fund; (2) limiting risk enhancement to one-third; and (3) utilizing present hourly rates to compensate for delay in payment. This court reviews an award of attorneys’ fees for abuse of discretion; nevertheless, that standard of review allows us to closely scrutinize questions of law decided by the district court in reaching the fee award. See Haitian Refugee Ctr. v. Meese, 791 F.2d 1489, 1496, vacated in part on other grounds, 804 F.2d 1573 (11th Cir.1986). See also Skelton v. General Motors Corp., 860 F.2d 250, 257 (7th Cir.1988), cert. denied, 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22 (1989). According to the now axiomatic American Rule, which was reaffirmed by the United States Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Soc’y, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), all parties are to bear their own costs in litigation. One of the recognized exceptions to the American Rule is the “common fund” case. The common fund exception “rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). Attorneys in a class action in which a common fund is created are entitled to compensation for their services from the common fund, but the amount is subject to court approval. Fed. R.Civ.P. 23(e). Historically, the rationale entitling counsel to a percentage of the common fund derives from the equitable power of the courts under the doctrines of quantum meruit, Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); unjust enrichment, see, e.g., Trustees v. Greenough, 105 U.S. (15 Otto) 527, 26 L.Ed. 1157 (1881); and later, what has become known as the “substantial” or “common benefit” doctrine. Under this doctrine, fee reimbursement is permitted in the following circumstances: (1) when litigation indirectly confers substantial monetary or nonmonetary benefits on members of an ascertainable class, and (2) when the court’s jurisdiction over the subject matter" }, { "docid": "19580555", "title": "", "text": "us to follow the Seventh Circuit in \"limiting the common-fund approach to cases outside the scope of a fee-shifting statute.\" Pierce v. Visteon Corp. , 791 F.3d 782, 787 (7th Cir. 2015) ; accord Haggart v. Woodley , 809 F.3d 1336, 1358-59 (Fed. Cir. 2016) (largely adopting Pierce rule). Several other circuits, however, have disagreed with this approach. See McKeage v. TMBC, LLC , 847 F.3d 992, 1003 (8th Cir. 2017) (\"[T]he presence of a fee-shifting statute precludes a common fund award only when that result is required by the statutory scheme involved.\"); In re Bluetooth Headset Prods. Liab. Litig. , 654 F.3d 935, 941 (9th Cir. 2011) (\"The award of attorneys' fees in a class action settlement is often justified by [a] common fund or statutory fee-shifting[,] ... and sometimes by both.\"); Staton v.Boeing Co. , 327 F.3d 938, 967-69 (9th Cir. 2003) (permitting common fund recovery even where statutory fees may be available); Cty. of Suffolk v. Long Island Lighting Co. , 907 F.2d 1295, 1327 (2d Cir. 1990) (\"In our view, fee-shifting statutes are generally not intended to circumscribe the operation of the equitable fund doctrine.\"). To determine the proper course here, we consider the roots of the common fund doctrine. The common fund principle derives from the equitable doctrines of quantum meruit, Central Railroad & Banking Co. v. Pettus , 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885), and unjust enrichment, Trustees v. Greenough , 105 U.S. 527, 532, 26 L.Ed. 1157 (1881). It allows a court to award \"a reasonable attorney's fee\" to \"a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client ... from the fund as a whole.\" Boeing Co. v. Van Gemert , 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980). The rationale for the doctrine is that when one benefits from a lawsuit without contributing to its costs, he has been unjustly enriched at the successful litigant's or lawyer's expense. Mills v. Elec. Auto-Lite Co. , 396 U.S. 375, 392, 90 S.Ct. 616, 24 L.Ed.2d" }, { "docid": "13132488", "title": "", "text": "method and the “percentage of the recovery” method. No one expects a lawyer whose compensation is contingent on success of his services to charge, when successful, as little as he would charge a client who in advance has agreed to pay for his services, regardless of success. Nor, particularly in complicated cases producing large recoveries, is it just to make a fee depend solely on the reasonable amount of time expended. However, it is the Court’s duty to avoid any sense of vicarious generosity or to permit the lodestar to be enhanced without restraint above a fair and reasonable amount under all the facts and circumstances, precluding any notion that there are no decent limits to compensation for services of an attorney serving another’s interests. It has long been recognized that a lawyer who recovers a “common fund” is entitled to a reasonable attorney’s fee from the fund as a whole. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980). The United States Supreme Court consistently has held in decisions involving the computation of a common fund fee award that it is appropriate for a fee to be determined on a percentage-of-the-fund basis. See Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (“under the ‘common fund doctrine’, ... a reasonable fee is based on a percentage of the fund bestowed on the class”); see also Trustees v. Greenough, 105 U.S. 527, 532-33, 15 Otto 527, 26 L.Ed. 1157 (1881); Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 124-25, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 165-66, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Courts increasingly have come to recognize the shortcomings of the lodestar/multiplier method as a universal rule for compensation. Support for the lodestar/multiplier approach in common fund cases has eroded, and there has been a “ground swell of support for mandating a percentage-of-the-fund approach” in the common fund cases. See Florida v. Dunne, 915 F.2d 542, 545 (9th Cir.1990) (emphasis added). In" }, { "docid": "5109872", "title": "", "text": "court must assess the reasonableness of the attorneys’ fees.” Strong, 137 F.3d at 849 (citing Piambino v. Bailey, 610 F.2d at 1306). Moreover, an examination of attorneys’ fees protects against the public perception that attorneys exploit the class action to obtain large fees at the expense of the class. Id. (citing In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liab. Litig., 55 F.3d 768, 820 (3rd Cir.1995) (emphasizing that the “court’s oversight function” serves to detect “potential public misunderstandings that they may cultivate in regard to the interests of class counsel”) and Foster, 420 F.Supp. at 680 (explaining that the court has the “obligation in any Rule 23 class action to protect [the class action device] from misuse” because “the most commonly feared abuse is the possibility that Rule 23 encourages strike suits promoted by attorneys who simply are seeking fat fees”)). So how does this Court “assess the reasonableness of the attorneys’ fees?” Once again, so glad you asked ... B. The United States Supreme Court Approves the Percentage Method for Assessing The Reasonableness of Attorneys’ Fees in Common-Fund Class Actions Since 1882 the United States Supreme Court has consistently held that a person who successfully maintains a lawsuit that creates a common fund is entitled to a reasonable compensation. See Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881). The Supreme Court explicitly recognized an attorney’s right to receive a reasonable fee from a common fund in Central Railroad & Banking of Georgia v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885). The United States Supreme Court: This Court has recognized consistently that a litigant or lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorneys’ fee from the fund as a whole. Jurisdiction over the fund involved in the litigation allows a court to prevent ... inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately among those benefitted by the suit. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62" }, { "docid": "21798171", "title": "", "text": "1. The Court acknowledges these objectors’ frustrations but, as discussed above, nonetheless finds the settlement amount to be reasonable given the risks and delay of further litigation. On balance, the Court concludes that the reaction of the class weighs in favor of approval. See, e.g., Churchill Vill., 361 F.3d at 577 (holding that approval of a settlement that received 45 objections (.05%) and 500 opt-outs (.56%) out of 90,000 class members was proper). After reviewing all of the required factors, the Court finds the settlement fair, reasonable, and adequate, and grants Plaintiffs’ motion for final approval of the settlement. III. ATTORNEYS’ FEES AND COSTS Class counsel seek attorneys’ fees both under the ERISA fee-shifting statute, 29 U.S.C. § 1132(g)(1), and as a percentage of the common fund in this case. They do not seek double recovery, and they acknowledge that any statutory fee award paid by Defendants (or the Fund’s insurance policy) “shall constitute a credit to any amount awarded to Class Counsel from the Settlement Fund as a percentage of the common fund.” ECF No. 134 at 11. Relying on out-of-circuit precedent, Defendants argue that a common fund fee award is unavailable where, as here, the Court awards statutory fees. ECF No. 144 at 25-27 (citing Haggart v. Woodley, 809 F.3d 1336 (Fed. Cir. 2016); Pierce v. Visteon Corp., 791 F.3d 782 (7th Cir. 2015); Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. 2000)). However, Defendants also recognize that the Ninth Circuit has not so held. Id. at 25. To the contrary, the Ninth Circuit has held that, “unléss Congress has forbidden the application of the common fund doctrine in cases in which attorneys could potentially recover fees under the type of fee-shifting statutes at issue here, the courts retain their equitable power to award common fund attorneys’ fees.” Staton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003). “[T]here is no preclusion bn recovery of common fund fees where a fee-shifting statute applies,” id., and “common fund fees can be awarded where statutory fees are available,” id. at. 967. See also In re Bluetooth Headset" }, { "docid": "21798172", "title": "", "text": "No. 134 at 11. Relying on out-of-circuit precedent, Defendants argue that a common fund fee award is unavailable where, as here, the Court awards statutory fees. ECF No. 144 at 25-27 (citing Haggart v. Woodley, 809 F.3d 1336 (Fed. Cir. 2016); Pierce v. Visteon Corp., 791 F.3d 782 (7th Cir. 2015); Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. 2000)). However, Defendants also recognize that the Ninth Circuit has not so held. Id. at 25. To the contrary, the Ninth Circuit has held that, “unléss Congress has forbidden the application of the common fund doctrine in cases in which attorneys could potentially recover fees under the type of fee-shifting statutes at issue here, the courts retain their equitable power to award common fund attorneys’ fees.” Staton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003). “[T]here is no preclusion bn recovery of common fund fees where a fee-shifting statute applies,” id., and “common fund fees can be awarded where statutory fees are available,” id. at. 967. See also In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) (“The award of attorneys’ fees in a class action settlement is often justified by the common fund or statutory fee-shifting exceptions to the American Rule, and sometimes by both.” (emphasis added)). Defendants do not argue that ERISA forbids common fund awards such that Staton does not apply. They assert that, “[a]t most, Staton stands for the proposition that Plaintiffs’ counsel may be awarded by the Court either a statutory fee award or a common fund award, but not both.” ECF No. 144 at 28. But they cite no cases construing Staton in this manner, and courts in this circuit have held otherwise. E.g., Sobel v. Hertz Corp., 53 F.Supp.3d 1319 (D. Nev. 2014) (“Plaintiffs may seek additional attorney’s fees out of the common fund irrespective of their entitlement to attorney’s fees under the fee-shifting statute.”); Briggs v. United States, No. C 07-05760 WHA, 2010 WL 1759457, at *8 (N.D. Cal. Apr. 30, 2010) (finding “no .bar to awarding fees both under the [Equal Access to" }, { "docid": "5109873", "title": "", "text": "The Reasonableness of Attorneys’ Fees in Common-Fund Class Actions Since 1882 the United States Supreme Court has consistently held that a person who successfully maintains a lawsuit that creates a common fund is entitled to a reasonable compensation. See Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881). The Supreme Court explicitly recognized an attorney’s right to receive a reasonable fee from a common fund in Central Railroad & Banking of Georgia v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885). The United States Supreme Court: This Court has recognized consistently that a litigant or lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorneys’ fee from the fund as a whole. Jurisdiction over the fund involved in the litigation allows a court to prevent ... inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately among those benefitted by the suit. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980). The United States Supreme Court has consistently held that the percentage method is a proper method for assessing the reasonableness of attorneys’ fees in common fund cases. See Pettus, 113 U.S. at 124-25, 5 S.Ct. 387 (citing Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881)); Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 166-67, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). “The underlying justification for attorney reimbursement from a common fund, as explained by the Supreme Court in three early cases, is that unless the costs of litigation are spread to the beneficiaries of the fund they will be unjustly enriched by the attorney’s efforts.” Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1265 (D.C.Cir.1993) (citing Sprague, 307 U.S. at 166-67, 59 S.Ct. 777; Pettus, 113 U.S. at 126-27, 5 S.Ct. 387; and Greenough, 105 U.S. at 532). By 1984, when the Supreme Court decided Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the point that “un der the ‘common fund doctrine’ ... a" }, { "docid": "19580556", "title": "", "text": "statutes are generally not intended to circumscribe the operation of the equitable fund doctrine.\"). To determine the proper course here, we consider the roots of the common fund doctrine. The common fund principle derives from the equitable doctrines of quantum meruit, Central Railroad & Banking Co. v. Pettus , 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885), and unjust enrichment, Trustees v. Greenough , 105 U.S. 527, 532, 26 L.Ed. 1157 (1881). It allows a court to award \"a reasonable attorney's fee\" to \"a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client ... from the fund as a whole.\" Boeing Co. v. Van Gemert , 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980). The rationale for the doctrine is that when one benefits from a lawsuit without contributing to its costs, he has been unjustly enriched at the successful litigant's or lawyer's expense. Mills v. Elec. Auto-Lite Co. , 396 U.S. 375, 392, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Courts remedy this inequity by shifting a proportional share of reasonable attorneys' fees onto these unjustly enriched beneficiaries. The Supreme Court has applied the \"strong and uniform ... background rule\" of the common fund doctrine \"in a wide range of circumstances as part of [its] inherent authority.\" US Airways, Inc. v. McCutchen , 569 U.S. 88, 104, 133 S.Ct. 1537, 185 L.Ed.2d 654 (2013) (collecting cases). We agree with Brundle that it applies here. Scores of unnamed ESOP participants benefited substantially from this lawsuit, while B&G bore the entirety of the costs and risks. Equity thus demands that the enriched participants pay a proportional share of reasonable attorneys' fees. To be sure, courts often, but not invariably, award common fund fees when a procedural obstacle, such as the terms of a settlement, bars statutory fees that are otherwise available. But it does not follow that all statutory fee provisions necessarily displace the doctrine or render it superfluous. To the contrary: although both the common fund doctrine and fee-shifting statutes facilitate suit by plaintiffs" }, { "docid": "18867790", "title": "", "text": "It is by now well established that “a litigant or lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). The underlying justification for attorney reimbursement from a common fund, as explained by the Supreme Court in three early cases, is that unless the costs of litigation are spread to the beneficiaries of the fund they will be unjustly enriched by the attorney’s efforts. See Sprague, 307 U.S. at 166-67, 59 S.Ct. at 779-80; Central R.R. & Banking Co. of Georgia v. Pettus, 113 U.S. 116, 126-27, 5 S.Ct. 387, 392-93, 28 L.Ed. 915 (1885); Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1882). When awarding attorneys’ fees, federal courts have a duty to ensure that claims for attorneys’ fees are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Pettus, 113 U.S. at 127, 5 S.Ct. at 392-93. Special problems exist in assessing the reasonableness of fees in a class action suit since class members with low individual stakes in the outcome often do not file objections, and the defendant who contributed the fund will usually have no interest in how the fund is divided between the plaintiffs and class counsel. 2. The Percentage-of-the-Fund Method for Calculating Fees Historically, courts exercised considerable discretion and applied a reasonableness standard, focusing upon the particular circumstances of a case, in determining the amount of a common fund fee award. The percentage-of-the-fund method of calculating attorneys’ fees in common fund cases was most common. See Pettus, 113 U.S. at 128, 5 S.Ct. at 393 (paying successful attorneys a per centage of the fund recovered for the class). See also Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 242 (1986) (“Third Circuit Task Force Report’’). 3. The Lodestar and Twelve-Factor Tests The application of a percentage-of-the-fund approach sometimes resulted in large" }, { "docid": "13132489", "title": "", "text": "held in decisions involving the computation of a common fund fee award that it is appropriate for a fee to be determined on a percentage-of-the-fund basis. See Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (“under the ‘common fund doctrine’, ... a reasonable fee is based on a percentage of the fund bestowed on the class”); see also Trustees v. Greenough, 105 U.S. 527, 532-33, 15 Otto 527, 26 L.Ed. 1157 (1881); Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 124-25, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 165-66, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Courts increasingly have come to recognize the shortcomings of the lodestar/multiplier method as a universal rule for compensation. Support for the lodestar/multiplier approach in common fund cases has eroded, and there has been a “ground swell of support for mandating a percentage-of-the-fund approach” in the common fund cases. See Florida v. Dunne, 915 F.2d 542, 545 (9th Cir.1990) (emphasis added). In Gwozdzinnsky v. Sandler Assoc., 159 F.3d 1346 (2d Cir.1998), the Second Circuit affirmed an award of attorneys’ fees equaling 25% of a common fund recovery. Gwozdzinnsky was a summary affirmance upholding a percentage fee award, citing Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). After Gwozdzinnsky, this Court then employed the percentage fee method in In re Prudential Sec. Inc. Ltd. Partnership Sec. Litig, (“Prudential”), Order dated February 18, 1999. The first part of that fee order “awarded 27.5% of the settlement pools from each of the monetary settlements” as fees in a recovery of $110,-000.000. Id. The Second Circuit plainly stated in Sa-voie v. Merchants Bank, 166 F.3d 456, 460 (2d Cir.1999) that “the Supreme Court has implied that the percentage-of-the-fund method is a viable alternative” method of awarding fees in a common fund case. Id. Savoie was not a case in which a cash common fund was created for the benefit of a class by settlement of that action. In contrast, this case involves precisely" }, { "docid": "13281385", "title": "", "text": "may not shift the costs of litigation from the winning to the losing party. The Alyeska Court noted, however, that there are two exceptions to this rule. First, there is inherent power in the courts to assess attorneys’ fees for the “willful disobedience of a court order,” or when a party has acted in bad faith, id. at 258-59, 95 S.Ct. at 1622. Second, historically, the federal courts have exercised an equitable power to allow attorneys’ fees and costs to be charged against a fund created, increased, or protected by successful litigation. Id. at 257-58, 95 S.Ct. 1612. The application for the fees may be made by the plaintiffs themselves, Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881), on the ground that they have performed a service benefiting others similarly situated. But a plaintiff’s attorney may himself present a claim to compensation and reimbursement for expenses from the fund, on the theory that he has provided or preserved a benefit — the fund itself — and that the reasonable value of his services should be borne proportionately by all plaintiffs. Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885). The paradigmatic common fund is an express trust, as in Greenough. Litigation can also “create” a fund, as when the assets of a debtor are brought within the reach of creditors, Pettus, supra. Nevertheless, the common fund doctrine has not been restricted to equitable actions in which the court exercised control over a “res”. In City of Detroit v. Grinnell Corp., 495 F.2d 448, 454, 468-69 (2d Cir. 1974), we awarded attorneys’ fees out of the settlement fund in a private antitrust class action suit. Similarly, since a money judgment is itself an identifiable asset on which the trial court may impose a charge, such judgments have also been accorded common fund treatment, see, e. g., Union Cent. Life Ins. Co. v. Hamilton Steel Prods., Inc., 493 F.2d 76 (7th Cir. 1974); see generally, Dawson, Lawyers and Involuntary Clients in Public Interest Litigation, 88 Harv.L.Rev. 849, 920 (1975); Dawson, Lawyers and" }, { "docid": "11238854", "title": "", "text": "own costs in litigation. One of the recognized exceptions to the American Rule is the “common fund” case. Under the “common fund” exception: [a] person who maintains a lawsuit resulting in the creation, preservation or increase of a fund in which others have a common interest may be reimbursed from that fund for attorneys’ fees and costs incurred. This avoids the unjust enrichment of those who would otherwise benefit from the fund without paying the litigation costs necessary to produce the fund. An attorney in a class action creating a common fund is entitled to compensation for his services from the fund created for the class but the amount is subject to court approval. Fickinger v. C.I. Planning Corp., [1987 Transfer Binder] Fed. Sec. L. Rep. (CCH) 1193,126, at 95,547, 646 F.Supp. 622 (E.D.Pa.1986). See, Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 1550 n. 16, 79 L.Ed.2d 891 (1984); Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). Historically, the rationale entitling counsel to a percentage of the common fund derives from the equitable power of the Courts under the doctrines of quantum meruit, Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); unjust enrichment, see, e.g., Trustees v. Greenough, 105 U.S. (15 Otto) 527, 26 L.Ed. 1157 (1882); and later, what has become known as the “substantial” or “common benefit” doctrine. Under this rule, ... fee reimbursement is permitted (1) when litigation confers substantial monetary or nonmonetary benefits on members of an ascertainable class, and (2) when the court’s jurisdiction over the subject matter of the suit, and over a named ... collective representative of the class, makes possible an award that will operate to spread the costs proportionately among class members. H. Newberg, Attorney Fee Awards § 2.01 at 28 (1986). See, also, Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). More recently, courts also have acknowledged the economic reality that in order to encourage “private attorney general” class actions" }, { "docid": "19580554", "title": "", "text": "not yet possess the damages award - in other words, the court still had jurisdiction over the funds and had not distributed them to the ESOP - it could not be considered a plan asset. Brundle II , 258 F.Supp.3d at 670. Of course, if the ESOP had received payment of the award, those funds would have been subject to ERISA's duties and protections. See WilmingtonShipping Co. v. New England Life Ins. Co. , 496 F.3d 326, 333 (4th Cir. 2007). But where a fund is still under the jurisdiction of the district court, the court may award fees from that fund without running afoul of ERISA's anti-alienation or exclusive benefit requirements. See Kickham Hanley P.C. v. Kodak Ret. Income Plan , 558 F.3d 204, 213 (2d Cir. 2009) ; Lynn v. CSX Transp., Inc. , 84 F.3d 970, 975 (7th Cir. 1996). Next, Wilmington and Constellis argue that ERISA's statutory fee-shifting provision displaces the common fund doctrine. See 29 U.S.C. § 1132(g)(1) (authorizing prevailing plaintiffs to recover reasonable attorneys' fees from defendants). They urge us to follow the Seventh Circuit in \"limiting the common-fund approach to cases outside the scope of a fee-shifting statute.\" Pierce v. Visteon Corp. , 791 F.3d 782, 787 (7th Cir. 2015) ; accord Haggart v. Woodley , 809 F.3d 1336, 1358-59 (Fed. Cir. 2016) (largely adopting Pierce rule). Several other circuits, however, have disagreed with this approach. See McKeage v. TMBC, LLC , 847 F.3d 992, 1003 (8th Cir. 2017) (\"[T]he presence of a fee-shifting statute precludes a common fund award only when that result is required by the statutory scheme involved.\"); In re Bluetooth Headset Prods. Liab. Litig. , 654 F.3d 935, 941 (9th Cir. 2011) (\"The award of attorneys' fees in a class action settlement is often justified by [a] common fund or statutory fee-shifting[,] ... and sometimes by both.\"); Staton v.Boeing Co. , 327 F.3d 938, 967-69 (9th Cir. 2003) (permitting common fund recovery even where statutory fees may be available); Cty. of Suffolk v. Long Island Lighting Co. , 907 F.2d 1295, 1327 (2d Cir. 1990) (\"In our view, fee-shifting" }, { "docid": "15108950", "title": "", "text": "Electric Auto-Lite Co., 396 U.S. 375, 393, 90 S.Ct. 616, 626, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164-66, 59 S.Ct. 777, 779-80, 83 L.Ed. 1184 (1939); Central R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Trustees v. Greenough, 105 U.S. 527, 532-37, 26 L.Ed. 1157 (1882). This common fund doctrine rests on the perception that individuals who profit from a lawsuit “without contributing to its costs are unjustly enriched at the successful litigant’s expense.” Boeing Co., 444 U.S. at 478, 100 S.Ct. at 749. To prevent this inequitable result, a court may assess fees against the entire fund and thereby spread litigation costs proportionately among those whom the suit benefits. Id. Similarly, the Third Circuit has noted that in the class action context, attorneys who create a settlement fund are entitled to recover fees against that fund. “The award of fees under the equitable fund doctrine is analogous to an action in quantum meruit; the individual seeking compensation has, by his actions, benefited another and seeks payment for the value of the service performed.” Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp. (Lindy I), 487 F.2d 161, 165 (3d Cir.1973); see also Silberman v. Bogle, 683 F.2d 62, 64 (3d Cir.1982); Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp. (Lindy II), 540 F.2d 102, 110 (3d Cir.1976). Although it is well established that attorneys’ fees may be drawn from a fund in court, there is some controversy regarding the proper method by which the amount of compensation should be calculated. Until 1973, the size of the fee award in both common fund cases and statutory fee shifting cases was left to the court’s discretion. “Awards often reflected what the court believed was a ‘reasonable percentage’ of the amount recovered.” Court Awarded Attorney Fees: Report of the Third Circuit Task Force (1985), reprinted in 108 F.R.D. 237, 242 [hereinafter Task Force Report]. Judges at that time utilized a multitude of factors in calculating fee awards and relied most heavily on “the size of" }, { "docid": "20940556", "title": "", "text": "approving a settlement agreement where class counsel withheld critical information not provided in the mailed notice to class members, but which had been produced and was readily available. Thus, the court abused its discretion by failing to consider the accessibility or availability of information necessary for the Woodleys and other class members to make an informed decision about the settlement agreement. See In re Bank of Am. Corp. Sec., Derivative, & Emp. Ret. Income Sec. Act (ERISA) Litig., 772 F.3d 125, 132 (2d Cir.2014) (in a class action suit, a court abuses or exceeds the discretion accorded to it when “its decision— though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions” (internal quotation marks and citation omitted)); see also Eastway Constr. Corp. v. City of N.Y., 821 F.2d 121, 123 (2d Cir.1987) (“All discretion is to be exercised within reasonable limits. The concept of discretion implies that a decision is lawful at any point within the outer limits of the range of choices appropriate to the issue at hand; at the same time, a decision outside those limits exceeds or, as it is infelicitously said, ‘abuses’ allowable discretion.” (citations omitted)). IV. The Common Fund Doctrine We now turn to the Claims Court’s award of attorney fees under the common fund doctrine. The common fund doctrine is rooted in the traditional practice of courts of equity and derives from the equitable power of the courts under the doctrines of quantum meruit, Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 128, 5 S.Ct. 387, 28 L.Ed. 915 (1885), and unjust enrichment, Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1881). Under the common fund doctrine, “a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to [ ] reasonable attorney[ ] fees from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) (citations omitted). Our analysis requires" }, { "docid": "18867789", "title": "", "text": "fee in this case, and in choosing to apply that percentage only to that part of the fund for which counsel was responsible. The answer to this question is “no” as well. We address both questions in turn below. A. Lodestar Verstis Percentage of the Fund 1. General Principles Governing Fee Awards In general, each party to litigation in the United States bears its own attorneys’ fees absent a specific fee-shifting statute. Over time, courts have fashioned several equitable exceptions to this “American rule.” One of the earliest, and still most common, exceptions is the “common fund” doctrine typically applied in class actions like the present one. See Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164, 59 S.Ct. 777, 779, 83 L.Ed. 1184 (1939) (fee award from fund generated is within “the historic equity jurisdiction of the federal courts”). That doctrine allows a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees. It is by now well established that “a litigant or lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). The underlying justification for attorney reimbursement from a common fund, as explained by the Supreme Court in three early cases, is that unless the costs of litigation are spread to the beneficiaries of the fund they will be unjustly enriched by the attorney’s efforts. See Sprague, 307 U.S. at 166-67, 59 S.Ct. at 779-80; Central R.R. & Banking Co. of Georgia v. Pettus, 113 U.S. 116, 126-27, 5 S.Ct. 387, 392-93, 28 L.Ed. 915 (1885); Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1882). When awarding attorneys’ fees, federal courts have a duty to ensure that claims for attorneys’ fees are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d" }, { "docid": "8829262", "title": "", "text": "Historically, the rationale entitling counsel to a percentage of the common fund derives from the equitable power of the courts under the doctrines of quantum meruit, Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 124, 5 S.Ct. 387, 28 L.Ed. 915 (1885); unjust enrichment, see, e.g., Trustees v. Greenough, 105 U.S. (15 Otto) 527, 532-33, 26 L.Ed. 1157 (1881); and later, what has become known as the “substantial” or “common benefit” doctrine. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392-93, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). All of these doctrines fall under the larger umbrella of the “common fund” doctrine. Under the common fund doctrine, fee reimbursement is permitted in the following circumstances: (1) when litigation indirectly confers substantial monetary or nonmonetary benefits on mem bers of an ascertainable class, and (2) when the court’s jurisdiction over the subject matter of the suit, and over a named defendant who is a collective representative of the class, makes possible an award that will operate to spread the costs proportionately among class members. H. Newberg, Attorney Fee Awards, § 2.01, at 28-29 (1986). It is undisputed that the efforts of the private contingency counsel in the state cases placed a significant amount of pressure on the Defendants to settle this class action. For that reason, we believe that such counsel contributed to the creation of the settlement fund, and accordingly, are entitled to receive a reimbursement of their out-of-pocket expenses in the amount of $441,991.79. See e.g., Skelton v. General Motors Corp., 860 F.2d 250, 253 (7th Cir.1988) (recognizing that attorneys in a class action in which a common fund is created are entitled to compensation for their services and reimbursement of their out-of-pocket expenses, but the amount is subject to court approval); Union Central Life Ins. Co. v. Hamilton, 493 F.2d 76, 79 (7th Cir.1974); H. Newberg, Attorney Fee Awards § 2.19, at 69 (1986). The private contingency attorneys’ reimbursement amounts are to be paid immediately. 3. Special Award to Particular Plaintiffs There is no dispute that a number of the individual plaintiffs provided significant assistance" }, { "docid": "22970115", "title": "", "text": "a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). Attorneys in a class action in which a common fund is created are entitled to compensation for their services from the common fund, but the amount is subject to court approval. Fed. R.Civ.P. 23(e). Historically, the rationale entitling counsel to a percentage of the common fund derives from the equitable power of the courts under the doctrines of quantum meruit, Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); unjust enrichment, see, e.g., Trustees v. Greenough, 105 U.S. (15 Otto) 527, 26 L.Ed. 1157 (1881); and later, what has become known as the “substantial” or “common benefit” doctrine. Under this doctrine, fee reimbursement is permitted in the following circumstances: (1) when litigation indirectly confers substantial monetary or nonmonetary benefits on members of an ascertainable class, and (2) when the court’s jurisdiction over the subject matter of the suit, and over a named defendant who is a collective representative of the class, makes possible an award that will operate to spread the costs proportionately among class members. H. Newberg, Attorney Fee Awards § 2.01 at 28-29 (1986). See also Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). In accordance with the well-established common fund exception to the American Rule, we are persuaded that class counsel herein are entitled to an award of their fees and expenses out of the fund that has been created for the class by their efforts. The dispositive issue in this appeal is whether such fees should be based upon a percentage of the fund or the lodestar computation method. A. The Appropriate Method of Calculating A Common Fund Fee Award During the 1970’s, a debate was triggered primarily in the Second and Third Circuits over the appropriate method of calculating a common fund fee award. This controversy still affects how attorneys’ fees are awarded. Thus, a look back at" } ]

[ { "docid": "14665923", "title": "", "text": "Hurt argues that the warrant failed to make any distinction between material which would be evidence in a prosecution under statutory provisions and that which would not. Appellant’s Opening Brief, page 22. This argument is readily refuted by consulting the language of the warrant. The magistrate restricted the scope of the officer’s search to the following items: (1) Three films titled a) “First Suck”; b) “Dick, Billy and Mike”; and c) “Little Girl”; (2) Books, magazines, photographs, negatives, films and video tapes depicting minors (that is, persons under the age of 16) engaged in sexually explicit conduct; and (3) Correspondence and records of any kind reflecting the ordering, receipt, shipping, and payment for child pornography; which are the fruits, instrumentalities, and evidence of the offenses of the interstate transportation and mailing of child pornography, and the unlawful importation of child pornography, in violation of 18 U.S.C. §§ 2252 and 545, and 19 U.S.C. § 1305, and 18 U.S.C. §§ 1461 and 1462. The affidavit filed in support of the search warrant described the three films as depicting sexually explicit conduct. The remaining items to be seized were restricted to (1) materials depicting children under the age of 16 engaged in sexually explicit conduct and (2) written documents that could serve as evidence of the use of the mails to order child pornography. The obscene films described in the warrant formed the basis for the prosecution in this matter. The remaining items described in the warrant consisted of evidence that would prove an element of the crime proscribed by section 1461. Moreover, the warrant sufficiently described evidence that would prove an element of the crime proscribed by section 1461. United States v. Rubio, 727 F.2d 786, 792 (9th Cir.1983); United States v. Barnett, 667 F.2d 835, 843 (9th Cir.1982). The seizure of “mere evidence” of the commission of a crime was authorized by the Supreme Court in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782 (1967). The warrant described the items to be seized with particularity and did not authorize a general search." } ]

[ { "docid": "18597748", "title": "", "text": "GOLDBERG, Circuit Judge: Appellant Edward John Marchant was convicted in a bench trial of knowingly receiving child pornography in violation of 18 U.S.C. § 2252. Marchant appeals his conviction, alleging insufficient evidence to support the scienter element of § 2252(a)(2) and, alternatively, that application of § 2252(a)(2) to persons who knowingly receive child pornography for personal use violates the First Amendment. Marchant’s contentions are without merit, and we affirm the trial court. I. Facts Marchant admitted at trial that he has been a collector of sexually explicit (pornographic) materials for several years, and that he frequently corresponds with other individuals about pornographic materials. Marchant ordered many of these materials from abroad, allegedly five at a time, through price lists or through brochures that show small pictures of the covers of pornographic magazines. Marchant received the magazines at a post-office box, which he listed under multiple aliases. At some point prior to January 1985, Marchant ordered at least one “Lolita” magazine. Six “Lolita” magazines were seized by officials in Jamaica, New York, and a notice of seizure was sent to Marchant. Marchant claims to have had no knowledge that “Lolita” magazines were child pornography and to have had no “Lolita” magazines in his possession at that time. Marchant learned that “there was a problem with messing around with child pornography ... [and that] it’s no problem as long as [he didn’t] order ‘Lolita’s’____” Tr., Yol. 2, at 129. Marchant subsequently received at his post office box a “Lolita Extra Z,” which he put in a dresser drawer in his bedroom. Marchant claims that he placed an order for five adult pornographic magazines, but that he received the “Lolita Extra Z” and other magazines that he did not order. On May 14,1985, postal inspectors seized six pornographic magazines addressed to one of the aliases at Marchant’s post office box. One of the magazines seized, “Lolita Color Special 18,” was the child pornography upon which Marchant’s conviction is based. Another of the magazines contained pornographic depictions of humans with animals. Customs officials, cooperating with the post office, performed a controlled delivery of the" }, { "docid": "18597751", "title": "", "text": "of Mar-chant’s home. The search was executed on May 22, 1985. The officials seized multiple “hard core” pornographic magazines, including bestiality magazines and magazines with titles such as “Teenage Sex 20,” “Teenager 17,” “Schulmadchen 4,” “Sweet Little 16,” the “Lolita Extra Z,” and the six magazines subject to the controlled delivery. Also seized were several hundred letters (some of which contained currency sent to Marchant, allegedly to defray his cost of sending pornographic pictures), and several thousand photographic negatives of pictures from pornographic magazines. Finally, the officials seized a letter from a woman in Oklahoma addressed to Mar-chant, not to an alias. The letter expressed thanks for a picture that Marchant had sent, and promised to reciprocate with a picture of herself and her son Marvin. The letter stated: “[Marvin] just turned three years old this year, and he is all boy if you know what I mean.” Marchant contends that this was a “lonely hearts type letter, rather than a pornographic contact letter.” Tr. Yol. 2, at 134. Marchant was charged with the knowing receipt of sexually explicit material involving minors that has been shipped in interstate or foreign commerce, 18 U.S.C. § 2252, and with the use of the mails to receive nonmailable material, 18 U.S.C. § 1461. At the bench trial, the customs agent in charge of the case testified that the practice in child pornography shipment is to order pornography pre-paid and to mail ordered materials, without invoices or letters. No letters accompany such materials even when the ordered materials are not available or when an overpayment is made. The agent also testified that such materials are not sent unless payment is received in advance, and that he had never heard of anyone paying for materials to be received by anyone else. The trial judge acquitted Marchant on the use of the mail count, but returned a guilty verdict on the knowing receipt of child pornography. Marchant appeals. II. Sufficiency of the Evidence to Find Scienter Marchant argues that insufficient evidence was adduced at trial to support the scienter requirement of 18 U.S.C. § 2252, that" }, { "docid": "20886728", "title": "", "text": "unconstitutional on its face because it is vague and over-broad; section 2252 of the Act is unconstitutional on its face because it does not require scienter; and the Act, as applied, violates the First and Fifth Amendments because the tapes at issue are not child pornography. We reject the challenges to section 2256 but agree that section 2252 is fatally defective. Because we conclude that section 2252 is unconstitutional on its face, we do not reach Gottesman’s argument about the Act as applied. DISCUSSION 1. Does Section 2256 Render the Act Unconstitutionally Vague and Over-broad? A. Is the Act Unconstitutionally Over-broad Because it Raises the Statutory Age of Majority from 16 to 18? Gottesman asserts that section 2256 of the Act — its definitional section— is facially unconstitutional because it renders the Act applicable to depictions of those under the age of 18, whereas the statute upheld in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), set the age of majority at 16. See Ferber, 458 U.S. at 774, 102 S.Ct. at 3363 (rejecting constitutional challenges to statute prohibiting promotion or distribution of sexual performances by children under the age of 16). Gottesman argues that adding two years to the age of majority renders the Act unconstitutionally overbroad. He contends that it is far more difficult to determine when a person is under 18 than it is to determine when he or she is under 16. The result, according to Gottesman, is that distribution of sexually explicit material becomes such a hazardous profession that its practitioners will refuse to handle materials involving persons anywhere near the age of 18, thus restricting protected expression involving, for example, 23- or 25-year-olds. The Supreme Court stated in Ferber that it would invalidate a statute for over-breadth “ ‘only as a last resort.’ ... [T]he overbreadth involved [must] be ‘substantial’ before the statute involved will be invalidated on its face.” Ferber, 458 U.S. at 769, 102 S.Ct. at 3361 (citation omitted). Although Gottesman’s argument is not without some force, we see no basis for concluding that any overbreadth" }, { "docid": "18597757", "title": "", "text": "dispute that “Lolita Col- or Special 18” is child pornography within 18 U.S.C. § 2252, nor does he address whether the pornography in question falls within the Ferber criteria of unprotected material. See Ferber, 458 U.S. at 764-765, 102 S.Ct. at 3358-59. Rather, Marchant argues that, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), establishes that the First Amendment shields knowing receipt of child pornography from criminal prosecution. Because Stanley protects the right to possess obscene material in the privacy of one’s own home, Stanley allegedly protects the right to possess child pornography in one’s own home. We are unable to locate any post-Ferber cases that directly address whether the Stanley right applies to child pornography, as well as to obscenity. Cf United States v. Garot and United States v. Janell Ruth van Y, 801 F.2d 1241, 1246 n. 5 (10th Cir.1986) (refusing to reach con stitutipnality of an Oklahoma statute prohibiting possession of child pornography because conviction was not based on possession); United States v. Thoma, 726 F.2d 1191, 1198 (7th Cir.1984) (implicitly assuming that Stanley applies to child pornography in determining that an investigation did not “impermissibly induce” defendant to leave the Stanley zone of protection), cert. denied 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). We too do not reach this question, because Stanley does not extend to knowing receipt, even if it does extend to child pornography. The Supreme Court’s determination in United States v. Orito, 413 U.S. 139, 141, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513 (1973), is controlling: “[T]he essence of Appellee’s contention is that Stanley has firmly established the right to possess obscene material in the privacy of the home and that this creates a correlative right to receive it, transport it, or distribute it. We have rejected that reasoning.” See also United States v. 12 200-ft Reels of Super 8mm. Film, 413 U.S. 123, 127, 129, 93 S.Ct. 2665, 2668, 2669, 37 L.Ed.2d 500 (1973) (the attempt to extend Stanley “overlooks the explicitly narrow and precisely delineated privacy right on which Stanley rests. That holding" }, { "docid": "23148182", "title": "", "text": "639-40, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (upholding statute prohibiting sale of obscene materials to minors); see also Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (stating that “[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens”). Of particular importance here, the Supreme Court has consistently upheld restrictions on First Amendment freedoms to combat the “extraordinary problem[ ]” of child pornography. See Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). With these principles in mind, we address each of Matthews’ arguments in turn. III. Initially, Matthews presents an issue of first impression in this circuit: does the First Amendment permit a bona fide reporter to trade in child pornography to “create a work of journalism”? Matthews was convicted of violating the Protection of Children Against Sexual Exploitation Act. The statute prohibits the knowing interstate transportation, by any means including by computer, of “any visual depiction ... of a minor engaging in sexually explicit conduct” or the knowing receipt of such a depiction that has been “transported in interstate ... commerce ... by any means including by computer.” 18 U.S.C. § 2252(a)(1), (2). It contains no exception for transmission or receipt of child pornography with artistic, scientific, literary, journalistic, or other “legitimate” value. Nevertheless, Matthews maintains that the First Amendment entitles him to a defense to conviction under the statute. Matthews principally relies on New York v. Ferber, which involved a constitutional challenge to a state statute, in relevant respects identical to § 2252(a)(1) and (2). See 458 U.S. at 750-51, 102 S.Ct. 3348. In Ferber,the owner of a bookstore “specializing in sexually oriented products” asserted that a New York statute barring dissemination of materials depicting a child engaged in sexual conduct, regardless of whether such materials were obscene, violated the First Amendment. Id. at 751-52, 102 S.Ct. 3348. The Supreme Court unanimously upheld the statute, finding that, consistent with the First Amendment, a" }, { "docid": "20886727", "title": "", "text": "to Hawaii. A federal grand jury indicted Gottesman for distributing, shipping, and conspiring to distribute and ship child pornography in violation of 18 U.S.C. § 2252. After a bench trial, Gottesman was convicted on these counts; the district court sentenced him to 12 months incarceration and ordered him to pay a $100,000 fine. After he had filed a notice of appeal to this court, Gottesman requested a remand to the district court for reconsideration in light of United States v. Thomas, 893 F.2d 1066 (9th Cir.), cert. denied, 498 U.S. 826, 111 S.Ct. 80, 112 L.Ed.2d 53 (1990), which we granted. Gottesman then asserted before the district court, first, that Thomas had ruled that section 2252 lacked a requirement that a defendant know that he is distributing or shipping child pornography, and, second, that, as construed, section 2252 on its face violates the First and Fifth Amendments to the U.S. Constitution. The district court rejected these arguments and upheld the constitutionality of section 2252. On appeal, Gottesman contends that: Section 2256 of the Act is unconstitutional on its face because it is vague and over-broad; section 2252 of the Act is unconstitutional on its face because it does not require scienter; and the Act, as applied, violates the First and Fifth Amendments because the tapes at issue are not child pornography. We reject the challenges to section 2256 but agree that section 2252 is fatally defective. Because we conclude that section 2252 is unconstitutional on its face, we do not reach Gottesman’s argument about the Act as applied. DISCUSSION 1. Does Section 2256 Render the Act Unconstitutionally Vague and Over-broad? A. Is the Act Unconstitutionally Over-broad Because it Raises the Statutory Age of Majority from 16 to 18? Gottesman asserts that section 2256 of the Act — its definitional section— is facially unconstitutional because it renders the Act applicable to depictions of those under the age of 18, whereas the statute upheld in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), set the age of majority at 16. See Ferber, 458 U.S. at 774," }, { "docid": "21609067", "title": "", "text": "nude, facing the camera with their legs apart so as to expose their genitals. The pictures were captioned “Lolita-Sex,” “Skoleborn-School Children,” and “Little Girls F — k too.” A two-count indictment was returned on August 22, 1986. Arvin’s motion to dismiss the indictment was denied on February 6, 1987. The government’s motion in limine to exclude expert witnesses on the question of whether the pictures were “lascivious” was granted on March 13, 1987. Jury trial began on April 6, 1987. Because Arvin stipulated that he knowingly mailed the photocopies, the prosecution’s case consisted of little more than introducing the pictures into evidence. Arvin raised no affirmative defenses. The jury found Ar-vin guilty on both counts, and the court sentenced him to three years imprisonment, to be followed by three years probation. 18 U.S.C. § 2252(a) punishes: Any person who ... knowingly ... mails any visual depiction, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct ... 18 U.S.C. § 2256(1) defines a “minor” as “any person under the age of eighteen years.” § 2256(2) defines “sexually explicit conduct” to include various specific sexual activities not depicted in any of Arvin’s pictures, as well as the “lascivious exhibition of the genitals or pubic area of any person.” “Lascivious” is not defined. ANALYSIS I. Background The constitutional limitations on the regulation of child pornography were first spelled out in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Ferber held that pornographic depictions of children lack First Amendment protection even if the depictions are not “obscene.” Unlike obscenity laws, which aim to protect “the sensibilities of unwilling recipients,” Miller v. California, 413 U.S. 15, 18-19, 93 S.Ct. 2607, 2611-12, 37 L.Ed.2d 419 (1973), child pornography laws aim to protect the children themselves from sexual exploitation and abuse. Ferber, 458 U.S. at 757, 102 S.Ct. at 3354. Therefore, “community standards,” “redeeming value,” and “prurient interest” tests are not relevant in determining what constitutes child pornography: [T]he question under the" }, { "docid": "20886746", "title": "", "text": "performer was not an element of the crime defined by section 2252. Not sitting as an en banc court, we regard ourselves as bound by Thomas’s interpretation. CONCLUSION In summary, then, we conclude that the First Amendment to the United States Constitution mandates that a statute prohibiting the distribution, shipping or receipt of child pornography require as an element knowledge of the minority of at least one of the performers who engage in or portray the specified conduct. Section 2252, as authoritatively construed by Thomas, does not so require. As a result, section 2252 is unconstitutional on its face. Gottesman’s conviction therefore cannot stand. REVERSED. KOZINSKI, Circuit Judge, dissenting in part. What makes this case hard is that most of the materials defendant distributes are protected by the First Amendment. The thought that someone in his position might be convicted, despite an innocent mind, because of a short scene in one videotape among the thousands he carries in stock, should give pause to anyone concerned about free speech. I therefore agree with my colleagues that a child pornography statute must contain a mens rea requirement. But I do not agree that Gottesman must have known the videos he sold depicted child pornography; recklessness on his part would have sufficed. Moreover, under our traditional rules of construction, we can read a recklessness mental state into the statute, to bring it in line with the Constitution. Indeed, we have a duty to do so. I Part 11(B) of the majority opinion answers the question: “What level of scienter does the Constitution require?” It concludes that a defendant in a child pornography case must be proven to have “knowledge of the minority of at least one of the performers.” Maj. op. at 1292. In reaching this conclusion, the majority relies on New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), which holds that, under a child pornography statute, “[a]s with obscenity laws, criminal responsibility may not be imposed without some element of scienter.” Id. at 765, 102 S.Ct. at 3358 (emphasis added). But Ferber did not say what" }, { "docid": "18597754", "title": "", "text": "the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). Marchant here argues that the receipt of the “Lolita Color Special 18” that formed the basis for conviction; the previous or dering of at least one clearly child-pornographic “Lolita” magazine, allegedly before understanding the nature of its contents; the possession of one “Lolita” and of other questionably child pornographic “teen” magazines; the placement of the “Lolita Color Special 18” in the same dresser as another, allegedly non-ordered, “Lolita” magazine in Marchant’s collection; the unlikely coincidences of receiving two “Lolita” magazines that were not ordered and of (but for seizure) receiving on two occasions six magazines instead of the five allegedly ordered; the testimony of the customs official that magazines were sent only if pre-paid; the possession of a letter allegedly indicating Marchant’s interest regarding child pornography; and the possession of a notice of seizure of six “Lolita” magazines are all insufficient to permit a reasonable trier of fact to conclude beyond a reasonable doubt that Marchant had knowingly received the “Lolita Color Special 18,” rather than unknowingly receiving a substitution for what he had allegedly ordered. This argument is hogwash. Because we draw all inferences in favor of the government, the fact of receipt by itself might be sufficient to infer, beyond a reasonable doubt, that the receiver knows what he obtains. There can, it is true, be possession or receipt of objectionable material in ways that perfume the contents possessed or received. When the receipt occurs at the invention or with the consent of the possessor, it is more difficult to camouflage the fulsome scent of forbidden knowledge. Here, there is a veritable sty full of facts and inferences from which to detect the fragrance of scienter. The record indicates that “Lolita Color Special 18” was not received on April Fool’s Day, and we are not so naive as to require reversal on Mar-chant’s mere protestation that Lolita was a stranger" }, { "docid": "16222028", "title": "", "text": "existed to support the convictions as a matter of law. See United States v. Miah, 433 F.Supp. 259, 264 (E.D.Pa.1977), aff'd, 571 F.2d 573 (3d Cir.1978). We must examine the evidence as a whole, see United States v. Beck, 615 F.2d 441, 448 (7th Cir.1980), and in the light most favorable to the government. See United States v. Lowell, 649 F.2d 950, 958 (3d Cir.1981). The Supreme Court has recognized “child pornography as a category of material outside the protection of the First Amendment” New York v. Ferber, 458 U.S. 747, 763, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982). Moreover, “[t]he test for child pornography is separate from the obscenity standard enunciated in Miller [v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)]” Id. 458 U.S. at 764, 102 S.Ct. at 3358. The statute under which Villard was indicted stated, in relevant part: (a) Any person who— (1) knowingly transports or ships in interstate or foreign commerce or mails any visual depiction, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct ... shall be punished as provided in subsection (b) of this section. 18 U.S.C. § 2252(a). The statute defines “minor” as “any person under the age of eighteen years.” 18 U.S.C. § 2256(1). The statute defines “sexually explicit conduct” as including any of the following: (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic; abuse; or (E) lascivious exhibition of the genitals or pubic area of any person .... 18 U.S.C. § 2256(2) (emphasis added). The question of whether the photographs allegedly constituting child pornography must be in evidence in order to support a conviction under this statute appears to be an issue of first impression. The district court determined that, absent the pictures themselves, the evidence presented in this case provided an insufficient basis for the jury to conclude beyond a reasonable doubt, first, that the individual depicted" }, { "docid": "12080538", "title": "", "text": "Rubio argues that 18 U.S. C. §§ 2252 and 2255 are unconstitutional under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), because they do not define the term “sexually explicit conduct” with sufficient specificity. The Supreme Court has held, though, that because of the governmental interest in protecting children, a substantially lower standard applies to child pornography than to expression involving depiction of sexual conduct by adults. On this theory, the Supreme Court upheld a state statute of a breadth equivalent to that of the Federal statute here in question. New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 3358, 78 L.Ed.2d 1113 (1982). Moreover, in this Circuit the constitutionality of the federal statute is a settled question. United States v. Marchant, 803 F.2d 174 (5th Cir.1986). ****** For the above reasons, the judgment of the district court is Affirmed. . 18 U.S.C. § 2252 makes a felon of any person who, knowingly ... mails any visual depiction, if ... such visual depiction is of [a minor engaging in sexually explicit conduct]; or ... knowingly receives any visual depiction that has been ... mailed ... if ... such visual depiction is of [a minor engaging in sexually explicit conduct]. 18 U.S.C. § 2255 defines the term \"sexually explicit conduct” as: (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person. . The rejected instruction can be viewed either as an improper instruction on the insanity defense, or as an enhanced instruction on the definition of the term “knowingly.\" As an insanity instruction this instruction would have failed under the first prong of Grissom, which requires a requested instruction to be substantially correct. Under 18 U.S.C. § 17(a), insanity is an affirmative defense. Rubio's requested instruction places the burden on the government and is therefore legally improper as an instruction on the insanity defense. Rubio’s brief leaves it unclear which is intended, and the" }, { "docid": "12080537", "title": "", "text": "of his collection. These documents taken together were sufficient to go to the jury on the question of predisposition to send child pornography through the mail. IV. The Seized Magazines Were Relevant to Proof of Scienter Under Federal Rule of Evidence 404(b), prior crime evidence is only admissible when it is relevant to “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Under this rule, Ru-bio challenges the admission of the seized magazines as evidence. Relevance is a function of the similarity of the extrinsic offense to the offense charged. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Rubio argues that admission of the seized magazines is not relevant to proving intent to send pornographic material through the mail. This is true, but evidence of prior seizures was relevant to proving intent to receive such materials through the mails. The seized magazines were, therefore, admissible. V. The Statute Does Not Violate The First Amendment. Finally, Rubio argues that 18 U.S. C. §§ 2252 and 2255 are unconstitutional under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), because they do not define the term “sexually explicit conduct” with sufficient specificity. The Supreme Court has held, though, that because of the governmental interest in protecting children, a substantially lower standard applies to child pornography than to expression involving depiction of sexual conduct by adults. On this theory, the Supreme Court upheld a state statute of a breadth equivalent to that of the Federal statute here in question. New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 3358, 78 L.Ed.2d 1113 (1982). Moreover, in this Circuit the constitutionality of the federal statute is a settled question. United States v. Marchant, 803 F.2d 174 (5th Cir.1986). ****** For the above reasons, the judgment of the district court is Affirmed. . 18 U.S.C. § 2252 makes a felon of any person who, knowingly ... mails any visual depiction, if ... such visual depiction is of [a minor engaging" }, { "docid": "19266913", "title": "", "text": "statute. Child pornography can be restricted when adult pornography cannot because First Amendment interests are outweighed by the state’s compelling interest in protecting children. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Therefore, nonobscene visual depictions of live performances by minors may be prohibited. However, “as with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant.” Id. at 765, 102 S.Ct. at 3358. Understanding that scienter is a necessary element of a prosecution under Section 2252, we begin the task of construing the statute. First, we consider the text of the statute: Any person who— (1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; (4) ... (B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if— (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section. 18 U.S.C. § 2252(a) (1988 & Supp. IV 1992). This section does not plainly indicate whether “knowingly” extends to “the use of a minor.” We therefore look to see how other courts have interpreted the statute. First, defendant points to the recent decision by the Ninth Circuit Court of Appeals striking the statute as unconstitutional. United States v. X-Citement Video, Inc., 982 F.2d 1285 (9th Cir.1992), petition for cert. filed, 62 U.S.L.W. 3360 (U.S. Nov. 5, 1993) (No. 93-723). The X-Citement Video court was bound by a prior Ninth Circuit case holding that" }, { "docid": "23374105", "title": "", "text": "Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir.1992); Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st Cir.1992). Appellant claims that section 2252(a) fails to pass constitutional muster because it does not require proof that the accused knew that the persons depicted in the described materials were under age. This claim is premised upon the holding in United States v. X-Citement Video, Inc., 982 F.2d 1285 (9th Cir.1992), petition for cert. filed (Nov. 5, 1993) (No. 93-723). The conclusion of the two-judge X-Citement Video majority rested on a single base, having two components. First, the court decided that the term “knowingly,” as employed in section 2252(a)(2), modifies only the word “receives,” and not the phrase “visual depiction[s] involv[ing] the use of a minor engaging in sexually explicit conduct”; and, second, the court decided that this syntax renders the statute constitutionally infirm because, by failing to predicate guilt on actual knowledge of the materials’ contents, particularly the age(s) of the persons depicted, the statute allows a person to be convicted without proof of the requisite scien-ter. See X-Citement Video, 982 F.2d at 1289-92; see also Osborne v. Ohio, 495 U.S. 103, 112-15, 110 S.Ct. 1691, 1697-99, 109 L.Ed.2d 98 (1990) (discussing constitutional requirement that prohibitions on child pornography include some element of scienter); see generally New York v. Ferber, 458 U.S. 747, 765, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982) (explaining that child pornography statutes must contain “some element of scienter” to survive constitutional attack). The X-Citement Video opinion is something of a pariah. With regard to the first component of its holding, every other appellate court that has read section 2252(a) has determined that the provision imposes a scienter requirement vis-a-vis the contents of an interdicted mailing. See, e.g., United States v. LaChapelle, 969 F.2d 632, 638 (8th Cir.1992); Osborne, 935 F.2d at 34 & n. 2; United States v. Duncan, 896 F.2d 271, 277-78 (7th Cir.1990); United States v. Marchant, 803 F.2d 174, 176-77 (5th Cir.1986); United States v. Garot, 801 F.2d 1241, 1246-47 (10th Cir.1986). Indeed, we, ourselves, albeit in a civil case," }, { "docid": "18597755", "title": "", "text": "magazines are all insufficient to permit a reasonable trier of fact to conclude beyond a reasonable doubt that Marchant had knowingly received the “Lolita Color Special 18,” rather than unknowingly receiving a substitution for what he had allegedly ordered. This argument is hogwash. Because we draw all inferences in favor of the government, the fact of receipt by itself might be sufficient to infer, beyond a reasonable doubt, that the receiver knows what he obtains. There can, it is true, be possession or receipt of objectionable material in ways that perfume the contents possessed or received. When the receipt occurs at the invention or with the consent of the possessor, it is more difficult to camouflage the fulsome scent of forbidden knowledge. Here, there is a veritable sty full of facts and inferences from which to detect the fragrance of scienter. The record indicates that “Lolita Color Special 18” was not received on April Fool’s Day, and we are not so naive as to require reversal on Mar-chant’s mere protestation that Lolita was a stranger in his household. There is no question that a trier of fact could reasonably conclude beyond a reasonable doubt that Marchant intended to and knowingly received the “Lolita Color Special 18.” Other courts similarly have rejected challenges to the sufficiency of evidence to support scienter in receipt of child pornography. See, e.g., United States v. Hurt, 795 F.2d 765, 773-74 (9th Cir.1986); United States v. Hale, 784 F.2d 1465, 1471 (9th Cir.1986). III. Unconstitutional Application of .18 U.S.C. § 2252 to Knowing Receipt of Child Pornography for Personal Use Because there is sufficient evidence of knowing receipt, we must address Mar-chant’s constitutional challenge to 18 U.S.C. § 2252, as applied. Child pornography under § 2252 falls within the standards of New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982). Ferber held the First Amendment does not protect materials that “visually depict sexual conduct by children below a specified age. The category of ‘sexual conduct’ must also be suitably limited and described.” Id. (emphasis in original). Marchant does not" }, { "docid": "23512392", "title": "", "text": "including by computer or through the mails, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; shall be punished as provided in subsection (b).... 18 U.S.C. § 2252(a)(2) (emphasis added). Gendron points out that the Ninth Circuit has interpreted this statute as permitting a conviction of a person who does not know the child-pornographic nature of the material received, and, for that reason, has found it unconstitutional. See United States v. X-Citement Video, 982 F.2d 1285 (9th Cir.1992), cert. granted, — U.S. -, 114 S.Ct. 1186, 127 L.Ed.2d 536 (1994). He says we should do the same. The Ninth Circuit, in United States v. Thomas, 893 F.2d 1066 (9th Cir.), cert. denied, 498 U.S. 826, 111 S.Ct. 80, 112 L.Ed.2d 53 (1990), considered the scope of the statute’s word “knowingly.” It held that “knowingly” modifies only the statute’s word “receives” (or “reproduces”), not its subclause (A) or (B). Consequently, it “does not require” that a defendant “knew that the pornography he ... received involved a minor.” Id. at 1070. Two years later, in X-Citement Video, the Ninth Circuit pointed out that the statute, as so interpreted, would permit conviction of a person who “knowingly receives” a video, but does not know that the video contains child pornography. Because that interpretation would permit conviction of a person with an innocent state of mind, the court found the statute unconstitutional. X-Citement Video, 982 F.2d at 1292; see New York v. Ferber, 458 U.S. 747, 765, 102 S.Ct. 3348, 3359, 73 L.Ed.2d 1113 (1982) (child pornography statutes must involve “some element of scienter” to pass constitutional muster). We do not accept the Ninth Circuit’s conclusion that the statute is unconstitutional, however, because we do not agree with the statutory premise set forth in Thomas. In our view, and in the view of all courts to have considered the matter since the X-Citement Video decision, see United States v. Cochran, 17 F.3d 56 (3d Cir.1994); United States v. Edwards, No. 92-CR-884, 1993 WL 453461 (N.D.Ill." }, { "docid": "18597753", "title": "", "text": "he knowingly received child pornography. The standard of review was fully set forth in United States v. Niver, 689 F.2d 520, 529 (5th Cir.1982): [W]e must consider the evidence in the light most favorable to the government; Our task is not to reweigh the evidence or to determine the credibility of the witnesses, and we must affirm the verdict if it is supported by substantial evidence. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).... “The test is whether the evidence is sufficient to justify the trial judge, as trier of facts, in concluding beyond a reasonable doubt that the defendant was guilty____” Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971); United States v. Hull, 437 F.2d 1, 3 (5th Cir. 1971); see generally 3 C. Wright, Federal Practice and Procedure § 374 (1982). Stated differently, we review the entire record to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). Marchant here argues that the receipt of the “Lolita Color Special 18” that formed the basis for conviction; the previous or dering of at least one clearly child-pornographic “Lolita” magazine, allegedly before understanding the nature of its contents; the possession of one “Lolita” and of other questionably child pornographic “teen” magazines; the placement of the “Lolita Color Special 18” in the same dresser as another, allegedly non-ordered, “Lolita” magazine in Marchant’s collection; the unlikely coincidences of receiving two “Lolita” magazines that were not ordered and of (but for seizure) receiving on two occasions six magazines instead of the five allegedly ordered; the testimony of the customs official that magazines were sent only if pre-paid; the possession of a letter allegedly indicating Marchant’s interest regarding child pornography; and the possession of a notice of seizure of six “Lolita”" }, { "docid": "23148183", "title": "", "text": "including by computer, of “any visual depiction ... of a minor engaging in sexually explicit conduct” or the knowing receipt of such a depiction that has been “transported in interstate ... commerce ... by any means including by computer.” 18 U.S.C. § 2252(a)(1), (2). It contains no exception for transmission or receipt of child pornography with artistic, scientific, literary, journalistic, or other “legitimate” value. Nevertheless, Matthews maintains that the First Amendment entitles him to a defense to conviction under the statute. Matthews principally relies on New York v. Ferber, which involved a constitutional challenge to a state statute, in relevant respects identical to § 2252(a)(1) and (2). See 458 U.S. at 750-51, 102 S.Ct. 3348. In Ferber,the owner of a bookstore “specializing in sexually oriented products” asserted that a New York statute barring dissemination of materials depicting a child engaged in sexual conduct, regardless of whether such materials were obscene, violated the First Amendment. Id. at 751-52, 102 S.Ct. 3348. The Supreme Court unanimously upheld the statute, finding that, consistent with the First Amendment, a state could prohibit the distribution of material that depicted children engaged in sexual acts, even if that material was not obscene. Id. at 756-66, 102 S.Ct. 3348. Thus, the Court determined not only that child pornography, like obscene adult pornography, was without First Amendment protection, but also that a legislature is “entitled to greater leeway in the regulation of pornographic depictions of children” than in the regulation of adult pornography. Id. at 756, 102 S.Ct. 3348. The Ferber Court concluded that a legislature was entitled to “greater leeway” when enacting restrictions on child pornography, because child pornography generates a set of harms distinct from those generated by pornographic depictions of adults — harms related to the sexual abuse of children. The Court found that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 757, 102 S.Ct. 3348. The\" First Amendment, the Court explained, does not prohibit a state from banning the dissemination of child pornography not “legally obscene under the Miller [v. California, 413 U.S. 15," }, { "docid": "4790429", "title": "", "text": "the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section. 18 U.S.C. § 2252(a). As noted by the dissent in Jacobson v. United States, — U.S. -, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), an entrapment case, section 2252(a)(2) does not require proof of specific intent to break the law, but instead requires only the knowing receipt of visual depictions produced by using minors engaged in sexually explicit conduct. Id. at -, 112 S.Ct. at 1546 (O’Connor, J., dissenting). Defendant argues that the statute is unconstitutional because it does not require as an element of the offense, some level of scienter or knowledge of the minority of one or more of the participants depicted in the materials. The Supreme Court of the United States has addressed state laws aimed at eradicating child pornography in several cases. In New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982), the Supreme Court recognized child pornography as a category of material outside the protection of the First Amendment, regardless of whether the material was obscene under the test of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The Court also noted that criminal responsibility could not be imposed “without some element of scienter on the part of the defendant.” Ferber, 458 U.S. at 765, 102 S.Ct. at 3359. In Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), the Supreme Court appeared to answer the question of what level of scienter was sufficient. The Court held that, given the gravity of the State’s interest in protecting children, the State could constitutionally proscribe the mere possession of child pornography. 495 U.S. at 110, 110 S.Ct. at 1697. The Supreme Court rejected in a footnote the defendant’s contention that the statute was unconstitutionally overbroad because it applied in instances where viewers or possessors lacked scienter. The statute defining the offense did not specify" }, { "docid": "18597756", "title": "", "text": "in his household. There is no question that a trier of fact could reasonably conclude beyond a reasonable doubt that Marchant intended to and knowingly received the “Lolita Color Special 18.” Other courts similarly have rejected challenges to the sufficiency of evidence to support scienter in receipt of child pornography. See, e.g., United States v. Hurt, 795 F.2d 765, 773-74 (9th Cir.1986); United States v. Hale, 784 F.2d 1465, 1471 (9th Cir.1986). III. Unconstitutional Application of .18 U.S.C. § 2252 to Knowing Receipt of Child Pornography for Personal Use Because there is sufficient evidence of knowing receipt, we must address Mar-chant’s constitutional challenge to 18 U.S.C. § 2252, as applied. Child pornography under § 2252 falls within the standards of New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982). Ferber held the First Amendment does not protect materials that “visually depict sexual conduct by children below a specified age. The category of ‘sexual conduct’ must also be suitably limited and described.” Id. (emphasis in original). Marchant does not dispute that “Lolita Col- or Special 18” is child pornography within 18 U.S.C. § 2252, nor does he address whether the pornography in question falls within the Ferber criteria of unprotected material. See Ferber, 458 U.S. at 764-765, 102 S.Ct. at 3358-59. Rather, Marchant argues that, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), establishes that the First Amendment shields knowing receipt of child pornography from criminal prosecution. Because Stanley protects the right to possess obscene material in the privacy of one’s own home, Stanley allegedly protects the right to possess child pornography in one’s own home. We are unable to locate any post-Ferber cases that directly address whether the Stanley right applies to child pornography, as well as to obscenity. Cf United States v. Garot and United States v. Janell Ruth van Y, 801 F.2d 1241, 1246 n. 5 (10th Cir.1986) (refusing to reach con stitutipnality of an Oklahoma statute prohibiting possession of child pornography because conviction was not based on possession); United States v. Thoma, 726 F.2d 1191," } ]

[ { "docid": "22948916", "title": "", "text": "technically the motion should have been styled as a Rule 12(c) motion for judgment on the pleadings, because the notice of motion was filed after Ayerst had filed its answer to the complaint. See Fed.R. Civ.P. 12(b); Falls Riverway Realty v. Niagara Falls, 754 F.2d 49, 53 (2d Cir.1985). Pursuant to Fed.R.Civ.P. 12(h)(2), however, a defense of failure to state a claim may be raised in a Rule 12(c) motion for judgment on the pleadings, and when this occurs the court simply treats the motion as if it were a motion to dismiss. See, e.g., George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 & n. 2 (2d Cir.1977). . Technically, the January 1986 Letter, which was submitted as an exhibit to the Mahady Affidavit, was a matter outside the pleadings. If appellants had appended the Letter as an exhibit to the complaint, however, or had expressly incorporated the Letter by reference into the complaint, the pleadings would be deemed to include the Letter. See Fed.R.Civ.P. 10(c); Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). Nonetheless the complaint clearly refers to the Letter, and there is no dispute as to the Letter’s terms. Moreover, appellants did quote the entire text of the Letter in one of their memoranda of law in opposition to Ayerst’s motion. Under these circumstances, we believe that the magistrate was authorized to treat the Letter as if it had been incorporated by reference into the complaint. . The magistrate also held that Zenith’s antitrust claim relating to Ayerst’s funding of CUREP \"falls woefully short of the use of ‘third-party advertising/ which, in this context, by itself would not 'constitute a violation of the Sherman Act.’ Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 141, 81 S.Ct. 523, 531, 5 L.Ed.2d 464 (1961).” In our view, this finding was inappropriate on a motion to dismiss. Summary judgment may be appropriate, however, if discovery indicates that this “advertising” does not overcome the de min-imis presumption." } ]

[ { "docid": "443851", "title": "", "text": "used letterhead and business cards with GM trademarks and logotypes. Complaint at 5. 11) Chem-Tek had access to GM’s computer system to aid in offering, selling or distributing GM Goodwrench and AC Del-eo products. Complaint at 7. 12) GM set prices for GM Goodwrench and AC Delco products. Complaint at 8. 13) Chem-Tek shipped orders directly to GM’s network, collected payment, and remitted a portion to GM. Complaint at 8. 14) GM prohibited Chem-Tek from offering, selling or distributing any competing products to the GM network. Complaint at 9. 15) During 1991-1993, Chem-Tek participated in GM’s cost reduction program. Complaint at 8. On December 23, 1991, without notice or good cause, GM terminated the Chem-Tek agreement and informed its network that it had elected to discontinue the sale of GM Goodwrench and AC Delco vehicle protection products. Complaint at 11, 15. Discussion A motion to dismiss under Rule 12(b)(6) must be decided solely on the facts alleged. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). Such motion should be granted only where no set of facts consistent with the allegations could be proven which entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The issue is not whether the plaintiff will prevail, but whether the plaintiff should be afforded the opportunity to offer evidence to prove the claims. Id. I. The Scope of Review on a Motion to Dismiss GM argues that the Chem-Tek agreement was not a franchise, but a terminable-at-will agreement for the sale of goods. GM attached a purchase order and two “parts and accessories information bulletins” to its motion. When “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Fed.R.Civ.P. 12(b)(6). The parties must be given an opportunity to present all pertinent materials. Id. When a complaint attaches an exhibit, or incorporates a document by reference, however, the complaint is deemed to include such documents. Cortec Industries, Inc. v. Sum Holding L.P., 949" }, { "docid": "22732134", "title": "", "text": "Case law engrafted some flesh on the bare bones of Rule 12(b)(6). Complaints, for example, are not dismissed unless it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); accord Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Because a Rule 12(b)(6) motion challenges the facts alleged on the face of the complaint, see Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984), or, more accurately, the sufficiency of the statements in the complaint, the question is what matters are to be considered in assessing the complaint’s sufficiency. Rule 10(c) provides: “Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Fed.R.Civ.P. 10(c). Relying on Rule 10(c), we have held that the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. See Cosmas, 886 F.2d at 13; Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). In addition, we have held that when a plaintiff chooses not to attach to the complaint or incorporate by reference a prospectus upon which it solely relies and which is integral to the complaint, the defendant may produce the prospectus when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure. See I. Meyer Pincus and Assoc. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991) (prospectus). Similarly, when a district court decides a motion to dismiss a complaint alleging securities fraud, it may review and consider public disclosure documents required by law to be and which actually have been filed with" }, { "docid": "22732135", "title": "", "text": "part thereof for all purposes.” Fed.R.Civ.P. 10(c). Relying on Rule 10(c), we have held that the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. See Cosmas, 886 F.2d at 13; Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). In addition, we have held that when a plaintiff chooses not to attach to the complaint or incorporate by reference a prospectus upon which it solely relies and which is integral to the complaint, the defendant may produce the prospectus when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure. See I. Meyer Pincus and Assoc. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991) (prospectus). Similarly, when a district court decides a motion to dismiss a complaint alleging securities fraud, it may review and consider public disclosure documents required by law to be and which actually have been filed with the SEC, particularly where plaintiff has been put on notice by defendant’s proffer of these public documents. See Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991); Fed. R.Evid. 201(e) (party entitled upon timely request to opportunity to be heard regarding propriety of court taking judicial notice). A finding that plaintiff has had notice of documents used by defendant in a 12(b)(6) motion is significant since, as noted earlier, the problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason — requiring notice so that the party against whom the motion to dismiss is made may respond— that Rule 12(b)(6) motions are ordinarily converted into summary judgment motions. Where plaintiff has actual notice of all the information in the movant’s papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated. We turn now to" }, { "docid": "17919262", "title": "", "text": "Executive Committee. . The court recognizes that, in considering a motion to dismiss under Rule 12(b)(6), it must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated by reference. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). The plaintiffs suggest that the court may not consider the complete texts of public documents filed by Travelers, but must instead limit its inquiry to the quotations of limited passages from those documents that are set forth in the complaint. The court disagrees. The court may take judicial notice, Rule 201(b)(2), Fed.R.Evid., of the contents of relevant public disclosure documents required by law to be filed, and actually filed, with the Securities and Exchange Commis sion. Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991). Thus, in considering the defendants’ motion to dismiss, the court may refer to Travelers’ public filings. The proper consideration of matters outside of the complaint does not extend to the defendants’ press releases or announcements at shareholder meetings. Id. However, the court may also consider the full text of documents that are \"integral to [the] plaintiffs claims.\" Field v. Trump, 850 F.2d 938, 949 (2d Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185 (1989). See also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 46-48 (2d Cir.1991) (Cardamone, J.). . The Second Circuit has emphasized the need for a high degree of specificity in pleading securities fraud claims. Segal v. Gordon, 467 F.2d 602, 607 (2d Cir.1972) (”[i]t is now quite clear in this Circuit that allegations with respect to 10b-5 violations will not pass scrutiny if they do not allege with some specificity the statements allegedly constituting the fraud. Mere conclusory allegations to the effect that defendant’s conduct was fraudulent or in violation of 10b-5 are insufficient.”) (quoting Matheson v. White Weld 6 Co., 53 F.R.D. 450, 452 (S.D.N.Y.1971)). See also Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir.1982); Denny v. Barber, 576 F.2d 465, 468-69 (2d Cir.1978). . As noted at the August 8, 1991" }, { "docid": "4104028", "title": "", "text": "a line of cases in this Circuit which holds that, as a matter of law, extensive cautionary language in the offering documents will preclude Section 10(b) claims based on those documents. Luce v. Edelstein, 802 F.2d 49, 56-57 (2d Cir.1986); see also Feinman v. Schulman Berlin & Davis, 677 F.Supp. 168, 170 (S.D.N.Y.1988); Andreo v. Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, 651 F.Supp. 877, 881 (D.Conn. 1986). While we do not agree with the assertion that this line of cases precludes all claims of misrepresentation, we do recognize that it mandates dismissal of many of the Section 10(b) claims alleged here, specifically, those founded upon the projections and other expectations which were expressed in the offering memorandum or in the attachments thereto. Plaintiffs have requested that we defer this motion until the summary judgment phase of the case, citing Devaney v. Chester, 813 F.2d 566 (2d Cir.1987). Devaney, however, does not so require; it merely stands for the proposition that courts should not consider the reasonableness of plaintiffs’ reliance on a Rule 9(b) motion, as the issue goes to the merit of the plaintiffs’ claims. Id. at 569. Devaney does not preclude a court from deciding the reliance issue as a matter of law on a motion pursuant to Rule 12(b)(6). Indeed, it is well settled that although a Rule 12(b)(6) motion is addressed to the face of the pleading, the pleading has been interpreted by the Second Circuit as “includ[ing] any document attached to it as an exhibit or any document incorporated in it by reference.” Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985) (citations omitted). Here, the Memorandum is attached to the complaint as Exhibit A, to which, in turn, the tax opinion letter and the financial projections are appended as Exhibits B and F, respectively. It is clear from the papers submitted in this action that all parties consider these voluminous documents to be part of the complaint, as do we. Before we examine the arguments made by the defendants, we believe it is necessary to highlight the relevant portions of the offering memorandum and its" }, { "docid": "4104029", "title": "", "text": "the issue goes to the merit of the plaintiffs’ claims. Id. at 569. Devaney does not preclude a court from deciding the reliance issue as a matter of law on a motion pursuant to Rule 12(b)(6). Indeed, it is well settled that although a Rule 12(b)(6) motion is addressed to the face of the pleading, the pleading has been interpreted by the Second Circuit as “includ[ing] any document attached to it as an exhibit or any document incorporated in it by reference.” Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985) (citations omitted). Here, the Memorandum is attached to the complaint as Exhibit A, to which, in turn, the tax opinion letter and the financial projections are appended as Exhibits B and F, respectively. It is clear from the papers submitted in this action that all parties consider these voluminous documents to be part of the complaint, as do we. Before we examine the arguments made by the defendants, we believe it is necessary to highlight the relevant portions of the offering memorandum and its attachments which will be applicable to such examination. (a) The Offering Materials On the front page of the Offering Memorandum, in large bold and block letters, the following statement appears: THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK (See “Risk Factors”) The next four pages of the Memorandum, which we will label the “foreword” section and which are paginated i-iv, contain very specific warnings, all of which are repeated in greater detail in the Memorandum itself. These cautionary instructions are also in block letters, and we will set forth those that are most germane to the instant action. For example, on page i, it is stated that “AN INVESTMENT IN THE PARTNERSHIP ENTAILS SIGNIFICANT RISKS.” SEE “RISK FACTORS,” AND “FEDERAL INCOME TAX FACTORS.” This admonition continues by listing seven of the potential risks, including: 4. SUBSTANTIAL COMPENSATION WILL BE PAID TO WORLD NURSERIES AND ITS AFFILIATES IN CONNECTION WITH THIS OFFERING AND THE ACQUISITION OF THE NURSERY ASSETS BY THE PARTNERSHIP, INCLUDING SUBSTANTIAL COMPENSATION PAID FROM THE PROCEEDS OF THIS OFFERING. 5. POTENTIAL CONFLICTS OF" }, { "docid": "12260833", "title": "", "text": "or omissions to support the claims. Additionally, defendants argue that the claims rooted in the Securities Act of 1933 are deficient because the complaint does not allege a sufficient connection between plaintiffs’. securities purchases and the public offerings at issue. We address each of defendants’ arguments in turn. As a threshold matter, we must determine which documents are properly before the Court pursuant to this motion to dismiss. As a general rule, a motion to dismiss addresses only the validity of plaintiffs’ allegations as they appear- on the face of the complaint. Anderson v. Coughlin, 700 F.2d 37, 40 (2d Cir.1983). However, the complaint is deemed to include any document attached as an exhibit or any document that the complaint incorporates by reference. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). Since the complaint contains extensive quotations from both the debt and the equity prospectuses, these documents are incorporated by reference into plaintiffs’ pleading. Similarly, the Steam Purchase Agreement between AES and SKC is discussed in numerous paragraphs of the complaint and the complaint partially paraphrases its content and thus we believe it too is incorporated by reference into the complaint. Compl. ¶¶ 2, 3(b), 88, 89, 90, 93. However, even if this contract is not incorporated by reference, we may consider it because it is the sole document on which plaintiffs’ fraud allegations as to the Cedar Bay Facility are based. Plaintiffs may not defeat this properly argued motion simply because they chose not to attach to the complaint or incorporate therein by reference the. document on which their fraud claim is solely based. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992) (document on which plaintiffs rely may be considered upon a motion to dismiss); I. Meyer Pincus, 936 F.2d at 762 (prospectus solely relied upon by plaintiff examined in determining a motion to dismiss, in spite of the fact that it was not attached to complaint or incorporated therein by reference). See Feinman v. Schulman Berlin & Davis, 677 F.Supp." }, { "docid": "12260832", "title": "", "text": "the prospectuses failed to disclose all the impediments to the project’s development. DISCUSSION On a motion to dismiss we accept all allegations in the complaint as true, and dismiss only if, after drawing all inferences in plaintiffs’ favor, it is clear that they are not entitled to relief. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). There are two arguments made in support of defendants’ contention that the complaint fails to state a claim on which relief can be granted. First, defendants point out that at the core of each of plaintiffs’ securities claims must be a misrepresentation or omission of material fact, Mayer v. Oil Field Sys. Corp., 803 F.2d 749, 755 (2d Cir.1986) (discussing sections 11, 12(2), and Rule 10b-5); see, I. Meyer Pincus & Assoc. v. Oppenheimer & Co., 936 F.2d 759, 761 (2d Cir.1991) (discussing section 11 and Rule 10b — 5), and they argue that the complaint fails to state any such misrepresentations or omissions to support the claims. Additionally, defendants argue that the claims rooted in the Securities Act of 1933 are deficient because the complaint does not allege a sufficient connection between plaintiffs’. securities purchases and the public offerings at issue. We address each of defendants’ arguments in turn. As a threshold matter, we must determine which documents are properly before the Court pursuant to this motion to dismiss. As a general rule, a motion to dismiss addresses only the validity of plaintiffs’ allegations as they appear- on the face of the complaint. Anderson v. Coughlin, 700 F.2d 37, 40 (2d Cir.1983). However, the complaint is deemed to include any document attached as an exhibit or any document that the complaint incorporates by reference. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). Since the complaint contains extensive quotations from both the debt and the equity prospectuses, these documents are incorporated by reference into plaintiffs’ pleading. Similarly, the Steam Purchase Agreement between AES and SKC is discussed in numerous paragraphs of the complaint and the complaint" }, { "docid": "23168567", "title": "", "text": "to dismiss the complaint for failure to state a claim and moved for Rule 11 sanctions for frivolous litigation. The district court granted the motion to dismiss but denied the motion for sanctions. All parties now appeal. II. We first consider plaintiffs’ claim that the district court erred in considering a copy of the article itself in ruling on the motion to dismiss. Plaintiffs did not attach a copy of the article to their complaint; rather, Penthouse submitted the article in support of its motion to dismiss. Plaintiffs assert that under Fed.R.Civ.P. 12(b), the district court should either have excluded the article — as a “matter[] outside the pleading” — or treated the motion to dismiss as one for summary judgment and afforded plaintiffs an opportunity to submit additional evidentiary materials. See Medina v. Rudman, 545 F.2d 244, 247 (1st Cir.1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 (1977). We think the district court acted properly. Although “there is no requirement that the pleader attach a copy of the writing on which his action or defense is based[,] ... when plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1327 at 489 (1969) (citations omitted); cf. Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 739 n. 12 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987). Clearly, not every document referred to in a complaint may be considered incorporated by reference and thus introduced by the moving party in support of a motion to dismiss. See Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985) (“[L]imited quotation does not constitute incorporation by reference.”); Seidel v. Public Service Co. of New Hampshire, 616 F.Supp. 1342, 1353 (D.N.H.1985). But here the article was not merely referred to in plaintiffs’ complaint but was absolutely central to it. Plaintiffs unquestionably would have had to offer a copy of the article in order to prove" }, { "docid": "4011998", "title": "", "text": "through Fifth claims of the Proposed Fourth Amended Complaint as against them. The Court grants Weber’s motion to dismiss Plastics’ counterclaims against him in part, and denies it in part. SO ORDERED. . In considering the C & D defendants’ 9(b) motion the Court reviewed the Third Amended Complaint, the exhibit thereto and memoranda of law submitted in support of and in opposition to the motion. The Court did not consider the exhibits attached to the affidavit of defendants' counsel which defendants claim show that the complaint draws unwarranted inferences. The court’s function on a motion to dismiss is \"not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.\" Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985) (District court could not consider documents outside the complaint to determine whether defendant’s alleged statement could fairly be viewed as deceptive. Motion to dismiss could not be used to test whether the complaints’ interpretations of defendant’s statements were fair.) On a motion to dismiss, the court must limit itself to a consideration of the facts alleged on the face of the complaint and any documents attached as exhibits or incorporated by reference. Goldman, 754 F.2d 1059, 1065-67 (2d Cir.1984). The exhibits submitted by defendants were not attached to the complaint nor were they incorporated by reference. Although some of the documents were quoted in the complaint, limited quotation does not constitute incorporation by reference. Cosmos v. Hassett, 886 F.2d 8 (2d Cir.1989). . In addition, both parties have asked the Court to evaluate documentary evidence in determining whether plaintiffs claims are vulnerable to summary judgment. The court declines to review these submissions. The court's inquiry on a motion to amend a complaint to add new legal claims is comparable to that required by Fed.R. Civ.P. 12(b)(6) as to whether the proposed amendments state a cognizable claim. A Rule 12(b)(6) motion is to be decided solely on the pleadings construed favorably to the pleader. It would therefore be improper for the Court to consider facts beyond the scope of the pleading." }, { "docid": "571930", "title": "", "text": "to dismiss in this action are directed to a complaint brought under the federal securities laws, this Court may consider documents, such as the Prospectus at issue, that are integral to plaintiffs’ claims and incorporated by reference in the pleadings. San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Companies, Inc., 75 F.3d 801, 808-09 (2d Cir.1996) (documents “integral” to the complaint may be consulted in full even though only partially quoted therein); Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985) (“the pleading is deemed to include any document attached to it as an exhibit ... or any document incorporated in it by reference”). Defendants in securities actions are permitted to produce the prospectus when challenging the legal sufficiency of a complaint because a “plaintiff should not so easily be allowed to escape the consequences of its own failure.” Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir.1991). “If a plaintiffs claims of misstatement or omission conflict with the plain language of the prospectus, the prospectus controls and the court need not accept as true the allegations in the complaint.” Steinberg v. PRT Group, Inc., 88 F.Supp.2d 294, 300 (S.D.N.Y.2000). I. The Section 12(a)(1) Claim Plaintiffs’ first claim for relief seeks recovery under Section 12(a)(1) of the Securities Act. Section 12(a)(1) provides that: Any person who ... offers or sells a security in violation of [Section 5] ... shall be liable, subject to [the loss causation provision] of this section, to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such securi ty, or for damages if he no longer owns the security. 15 U.S.C.A. § 772(a)(1) (West 1997). The Section 12(a)(1) claim is predicated solely on the discrepancy between the graphic matter in the Printed Prospectus and the corresponding, but erroneous, narrative in the Electronic Prospectus. Plaintiffs allege the Printed Prospectus, pursuant to which defendants sold" }, { "docid": "14933436", "title": "", "text": "5(c). The issue before the Court is whether this exclusionary clause precludes plaintiff’s recovery for the injury alleged. DISCUSSION Preliminarily we hold that the relevant insurance contract is incorporated by reference into the complaint and thus we consider it pursuant to this motion on the pleadings. Upon examination of the policy we find that its plain meaning forecloses plaintiff’s recovery for the damage alleged. Therefore, we grant defendant Albany’s motion for judgment on the pleadings under Rule 12(c), Fed.R.Civ.P. I. The Insurance Policy is Incorporated by Reference into the Complaint As a threshold matter, we must determine whether the insurance policy at issue is properly before the Court pursuant to this motion. When deciding a motion for judgment on the pleadings, a court may only analyze the content of the pleadings. See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988). The pleadings are deemed to include any document attached as an exhibit or any document that the complaint incorporates by reference. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). Since the insurance policy in the case at bar is not attached to the complaint but is supplied by plaintiff’s opposition papers, the question is whether the complaint adequately incorporates it by reference so that the Court may consider it pursuant to this motion. The complaint states that “[o]n or about January 9, 1990, defendant Albany made and issued to MSD [Apparel] its Open Cargo Policy of insurance number OMC 6012 ..., wherein and whereby it insured inter alia, shipments by MSD [Apparel] of finished goods while in due course of transit in the continental United States of America in an amount not exceeding $500,000.” Compl. ¶ 45. When deciding a dispositive motion on the pleadings of a contract claim, this Court (Judge Goettel) found that the pertinent contract, although outside the pleadings, was incorporated into the complaint by reference. Long Island Lighting Co. v. Transamerica Delaval Inc., 646 F.Supp. 1442, 1446 n. 3 (S.D.N.Y.1986) (determining a motion to dismiss). Considering a document outside the pleadings is particularly appropriate in a ease such as this where" }, { "docid": "6764432", "title": "", "text": "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer .evidence-to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Although a court is limited to the facts stated in the complaint, for purposes of a Rule 12(b)(6) motion, “the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Int’l Audiotext Network, Inc. v. AT & T Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam) (quoting Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)). Even when a document is not attached as an exhibit, the court may consider such a document where the complaint “relies heavily upon its terms and effect,” rendering the document “integral” to the complaint. Id. 2. The TILA Claims The purpose of TILA and its accompanying regulations is to “assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C. § 1601. See also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (TILA’s purpose is to assure “meaningful disclosure of credit terms to consumers.”). The Courts of Appeals have consistently ruled that TILA should be liberally construed in favor of the consumer in order to effectuate Congress’ intent of promoting the informed use of credit. For example, the U.S. Court of Appeals for the Second Circuit wrote as follows: [TILA] is remedial in nature, designed to remedy what Congressional hearings revealed to be unscrupulous and predatory creditor practices throughout the nation. Since the statute" }, { "docid": "22361723", "title": "", "text": "(2d Cir.1984), and to any documents attached as exhibits or incorporated by reference, Goldman, 754 F.2d at 1065-66. Here, the 1985 Annual Report and the 1985 10K were not attached as exhibits to the amended complaint nor were they incorporated by reference. The amended complaint merely discussed these documents and presented short quotations from them. “[LJimited quotation does not constitute incorporation by reference.” Goldman, 754 F.2d at 1066. Cf. National Ass’n of Pharmaceutical Mfrs. v. Ay erst Laboratories, 850 F.2d 904, 910 n. 3 (2d Cir.1988) (magistrate was authorized to treat letter as incorporated by reference into complaint when, inter alia, plaintiffs quoted entire text of letter in a memorandum of law). Since the 1985 Annual Report and the 1985 10K were neither attached as exhibits nor, by only being briefly excerpted, incorporated by reference, the district court erred in relying in its analysis upon statements from these documents which did not appear in the amended complaint. CONCLUSION We believe that the amended complaint satisfied the pleading requirements of Rule 9(b), therefore, we vacate the order of the district court and remand for further proceedings consistent with this opinion." }, { "docid": "22361722", "title": "", "text": "the Complaint is that the alleged failure to qualify the bullish statements was intended to permit individual defendants to profit from an inflated market price before the truth became known.” In sum, we conclude that the amended complaint satisfied the scienter requirement of Rule 9(b). C. Incorporation by Reference To bolster its conclusion that the amended complaint failed adequately to plead fraud, the district court noted that certain statements in the 1985 Annual Report and the 1985 10K disclosed information about the PRC’s import restrictions. These statements did not appear in the amended complaint. To justify its use of the statements, the district court held that the amended complaint, by citing the 1985 Annual Report and the 1985 10K, incorporated those documents by reference. We believe that the district court erred by using these statements in its analysis. On a motion to dismiss, the district court must limit itself to a consideration of the facts alleged on the face of the complaint, Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984), and to any documents attached as exhibits or incorporated by reference, Goldman, 754 F.2d at 1065-66. Here, the 1985 Annual Report and the 1985 10K were not attached as exhibits to the amended complaint nor were they incorporated by reference. The amended complaint merely discussed these documents and presented short quotations from them. “[LJimited quotation does not constitute incorporation by reference.” Goldman, 754 F.2d at 1066. Cf. National Ass’n of Pharmaceutical Mfrs. v. Ay erst Laboratories, 850 F.2d 904, 910 n. 3 (2d Cir.1988) (magistrate was authorized to treat letter as incorporated by reference into complaint when, inter alia, plaintiffs quoted entire text of letter in a memorandum of law). Since the 1985 Annual Report and the 1985 10K were neither attached as exhibits nor, by only being briefly excerpted, incorporated by reference, the district court erred in relying in its analysis upon statements from these documents which did not appear in the amended complaint. CONCLUSION We believe that the amended complaint satisfied the pleading requirements of Rule 9(b), therefore, we vacate the" }, { "docid": "22328092", "title": "", "text": "Securities Package worth $61.75 in exchange for their shares, Kramer alleged that this difference in treatment violated the “best price” provisions of Section 14(d)(7) and Rule 14d-10 as well as the prohibition on “side purchases” of Rule 10b-13. The district court dismissed these claims on the ground that the Equity Plan and stock option adjustments were made by Warner, not Time, and occurred some five months after the completion of the tender offer. Having disposed of all of Kramer’s federal claims, the district court dismissed the complaint without ruling on class certification. Kramer appealed, and we affirm. DISCUSSION A. Consideration of Matters Outside of the Complaint Kramer contends that in considering the motion to dismiss, the district court improperly relied upon factual sources outside the complaint—specifically the Offer to Purchase, the Joint Proxy Statement, and assertions of the defendants regarding the state of the junk bond market in October 1989 and related state litigations. The arguments based on bond market prices and related state litigation are quibbles and give us little pause. However, the references to the Offer to Purchase and Joint Proxy Statement raise substantial issues and serve as an occasion to fashion a clear rule governing the consideration of publicly filed disclosure documents when deciding motions to dismiss securities fraud actions. In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference. Of course, it may also consider matters of which judicial notice may be taken under Fed.R.Evid. 201. If a district court wishes to consider additional material, Rule 12(b) requires it to treat the motion as one for summary judgment under Rule 56, giving the party opposing the motion notice and an opportunity to conduct necessary discovery and to submit pertinent material. See Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985); Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984). In the instant matter, the district court made" }, { "docid": "22328093", "title": "", "text": "to the Offer to Purchase and Joint Proxy Statement raise substantial issues and serve as an occasion to fashion a clear rule governing the consideration of publicly filed disclosure documents when deciding motions to dismiss securities fraud actions. In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference. Of course, it may also consider matters of which judicial notice may be taken under Fed.R.Evid. 201. If a district court wishes to consider additional material, Rule 12(b) requires it to treat the motion as one for summary judgment under Rule 56, giving the party opposing the motion notice and an opportunity to conduct necessary discovery and to submit pertinent material. See Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985); Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984). In the instant matter, the district court made a brief reference, in two footnotes, to the condition of the junk bond market and related state litigation that were referred to in the supplementary materials offered by defendants. First, in ruling that the fact that the Securities Package opened trading at $61.75 instead of $70.00 was not a legally sufficient allegation of an intent to defraud, the district court observed: Defendants suggest that the reason for the low trading price was the widely-publicized collapse of the junk bond market in October, 1989. See Defendants’ Reply Memorandum of Law at 2, 16-17, tr. 8. However, the district court did not rely on the truth of defendants’ assertion in deciding the issue of intent. The alleged market collapse was merely an example of why a naked allegation of a lower than expected trading price in a fluid and ever-changing market does not imply, much less sufficiently allege, scienter. The illustrative reference to the condition of the junk bond market was thus not a ground for decision and does not run afoul of the rule that a" }, { "docid": "4011999", "title": "", "text": "court must limit itself to a consideration of the facts alleged on the face of the complaint and any documents attached as exhibits or incorporated by reference. Goldman, 754 F.2d 1059, 1065-67 (2d Cir.1984). The exhibits submitted by defendants were not attached to the complaint nor were they incorporated by reference. Although some of the documents were quoted in the complaint, limited quotation does not constitute incorporation by reference. Cosmos v. Hassett, 886 F.2d 8 (2d Cir.1989). . In addition, both parties have asked the Court to evaluate documentary evidence in determining whether plaintiffs claims are vulnerable to summary judgment. The court declines to review these submissions. The court's inquiry on a motion to amend a complaint to add new legal claims is comparable to that required by Fed.R. Civ.P. 12(b)(6) as to whether the proposed amendments state a cognizable claim. A Rule 12(b)(6) motion is to be decided solely on the pleadings construed favorably to the pleader. It would therefore be improper for the Court to consider facts beyond the scope of the pleading. Accordingly, it would be inappropriate for the Court to consider such an evidentiary proffer on a motion for leave to amend. See CBS, Inc. v. Ahem, 108 F.R.D. 14, 18-19 (S.D.N.Y.1985). . Polycast also points to discovery documents and deposition testimony to raise an inference of knowledge. The Court declines to consider these proffers as it is well established that on a motion to dismiss, the court must limit itself to a consideration of the facts alleged on the face of the complaint, and to any documents attached as exhibits or incorporated by reference. Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). . Although plaintiffs’ Proposed Complaint alleges additional predicate acts, the Court has determined that these allegations are legally deficient. . Defendants argue that because the allegations amount to a single victim-single injury scheme, they do not satisfy the continuity prong of the pattern requirement. Although other circuits have held that RICO claims alleging single victim, single injury schemes are insufficient, see, e.g., Walk v. Baltimore and" }, { "docid": "443852", "title": "", "text": "of facts consistent with the allegations could be proven which entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The issue is not whether the plaintiff will prevail, but whether the plaintiff should be afforded the opportunity to offer evidence to prove the claims. Id. I. The Scope of Review on a Motion to Dismiss GM argues that the Chem-Tek agreement was not a franchise, but a terminable-at-will agreement for the sale of goods. GM attached a purchase order and two “parts and accessories information bulletins” to its motion. When “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Fed.R.Civ.P. 12(b)(6). The parties must be given an opportunity to present all pertinent materials. Id. When a complaint attaches an exhibit, or incorporates a document by reference, however, the complaint is deemed to include such documents. Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992), citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989); Goldman v. Belden, 754 F.2d at 1065-66. Additionally, “when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the defendant may produce the [document] when attacking the complaint for its failure to state a claim.” Id. at 47, citing I. Meyer Pincus & Assoc. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991). A plaintiffs reliance on a document eliminates the need to consider a Rule 12(b)(6) motion under Rule 56. Id at 48. The complaint references the parts and accessories information bulletins. Complaint at 15. Further, Chem-Tek relied upon these bulletins as an integral element of its claim for tortious interference with a business expectancy. The bulletins, therefore, are properly considered on the motion to dismiss. The purchase order is not referenced in the complaint. Although Chem-Tek" }, { "docid": "571929", "title": "", "text": "our sales and marketing activities, increasing our content development activities and pursuing strategic acquisitions and partnerships. We will have considerable discretion in the application of the net proceeds of this offering to these uses. In addition, the timing of our use of the net proceeds will depend on a number of factors, including the amount of our future revenues. (Printed Prospectus at 12.) Discussion On a motion to dismiss pursuant to Rule 12(b)(6), a court typically must accept the material facts alleged in the complaint as true and construe all reasonable inferences in a plaintiffs favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). A court should not dismiss a complaint for failure to state a claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995). Because the motions to dismiss in this action are directed to a complaint brought under the federal securities laws, this Court may consider documents, such as the Prospectus at issue, that are integral to plaintiffs’ claims and incorporated by reference in the pleadings. San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Companies, Inc., 75 F.3d 801, 808-09 (2d Cir.1996) (documents “integral” to the complaint may be consulted in full even though only partially quoted therein); Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985) (“the pleading is deemed to include any document attached to it as an exhibit ... or any document incorporated in it by reference”). Defendants in securities actions are permitted to produce the prospectus when challenging the legal sufficiency of a complaint because a “plaintiff should not so easily be allowed to escape the consequences of its own failure.” Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir.1991). “If a plaintiffs claims of misstatement or omission conflict with the plain language of the prospectus, the prospectus controls and" } ]

[ { "docid": "22795808", "title": "", "text": "1082 (11th Cir.2008); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001). We have considered in several PLRA cases whether an administrative remedy was “available.” In Nunez v. Duncan, 591 F.3d 1217 (9th Cir.2010), we held that where a prison warden incorrectly implied that an inmate needed access to a nearly unobtainable . prison policy in order to bring a timely administrative appeal, “the Warden’s mistake rendered Nunez’s administrative remedies effectively unavailable.” Id. at 1226. In Sapp v. Kimbrell, 623 F.3d 813 (9th Cir.2010), we held that where prison officials declined to reach the merits of a particular grievance “for reasons inconsistent with or unsupported by applicable regulations,” administrative remedies were “effectively unavailable.” Id. at 823-24. In Marella v. Terhune, 568 F.3d 1024 (9th Cir.2009) (per curiam), we reversed a district court’s dismissal of a PLRA case for failure to exhaust because the inmate did not have access to the necessary grievance forms within the prison’s time limits for filing a grievance. Id. at 1027-28. We also noted that Marella was not required to exhaust a remedy that he had been reliably informed was not available to him. Id. at 1027. In the case now before us, defendants conducted all the discovery that they considered necessary, including taking Albino’s deposition. They then moved for summary judgment, even though not required to do so under our then-governing precedent, contending that Albino failed to exhaust available administrative remedies. In the alternative, if Albino had successfully exhausted, they contended that Albino’s claims failed on the merits. The magistrate judge recommended, and the district court granted, summary judgment to the defendants on the issue of exhaustion. The district court did not reach the merits of Albino’s claims. We hold that the district court erred in granting summary judgment to defendants on the issue of exhaustion. We further hold that Albino is entitled to summary judgment on that issue. We discuss in a moment our reasons for so holding, but we first address the contention of our dissenting colleagues that we have improperly “ignore[d] the ‘clearly erroneous’ standard of review in reviewing the district" } ]

[ { "docid": "5366472", "title": "", "text": "court reviews § 1915A dismissals under the Federal Rule of Civil Procedure 12(b)(6) standard for stating a claim for relief. Santiago v. Walls, 599 F.3d 749, 755-56 (7th Cir.2010). Dismissal orders are reviewed de novo, “taking all well-pleaded allegations of the complaint as true and viewing them in the light most favorable to the plaintiff.” Id. at 756 (quoting Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.2000) (internal quotation marks omitted)). We must examine whether Turley properly exhausted administrative remedies before filing suit, whether these federal claims are time-barred and whether Turley’s complaint sufficiently states a claim to survive dismissal. We find that Turley’s Eighth Amendment claim clears these hurdles, but his Due Process claim does not, and so we partially reverse the judgment of the district court. Turley’s conspiracy claim is superfluous in light of the fact that all named defendants are state actors. I. Prisoners must properly exhaust all available administrative remedies before pursuing claims, including § 1983 actions, in federal court. Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (2006). A prisoner must exhaust his grievances in accordance with prison procedural rules. Woodford v. Ngo, 548 U.S. 81, 84, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). In Illinois, the last level of appeal for a prisoner pursuing a grievance is a final determination by the Director. 20 Ill. Admin. Code 504.850(a)-(f). The exhaustion requirement’s primary purpose is to “alert[ ] the state” to the problem “and invit[e] corrective action.” Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir.2004); see also Jones v. Bock, 549 U.S. 199, 219, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Exhaustion is an affirmative defense, with the burden of proof on the defendants. Jones, 549 U.S. at 203-04, 127 S.Ct. 910; Maddox v. Love, 655 F.3d 709, 720 (7th Cir.2011). The State asserts that Turley did not exhaust all of his administrative remedies because first, he mentioned only two specific instances of lockdown in his grievances, and second, his latter two grievances did not receive a response. We disagree. Turley’s February 2009 grievance, which was pursued to a final decision by" }, { "docid": "7992969", "title": "", "text": "to the merits of the issue, the Prison Litigation Reform Act (“PLRA”) requires inmates to both substantively and procedurally exhaust all claims through administrative avenues before filing a suit in court. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The scope of this requirement depends on the scope of administrative remedies that the state provides. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). In California, inmate grievances must “describe the problem and the action requested.” Cal.Code Reg., tit. 15 § 3084.2. We have said that “when a prison’s grievance procedures do not specify the requisite level of detail” needed to exhaust a claim, the standard enunciated in the Seventh Circuit applies. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009). That standard provides: [w]hen the administrative rulebook is silent, .a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a notice-pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming. Strong v. David, 297 F.3d 646, 650 (7th Cir .2002). In recent decisions, we have applied the Strong standard to California prisoner claims. Sapp v. Kimbrell held that a prisoner who alleged that eye problems and denials of his requests for surgery or medical appointments exhausted his claim against a prison doctor, even though the prisoner never specifically identified the doctor in his grievance. 623 F.3d 813 (9th Cir.2010). We reasoned that “Sapp was not required to identify [the doctor] by name to exhaust the grievance against' him. Neither the PLRA itself nor the California regulations require an inmate to identify responsible parties or otherwise to signal who ultimately may be sued.” Id. at 824. Here, El-Shaddai’s grievance gave greater notice than Sapp’s grievances. El-Shaddai described not only the nature of the wrong but also identified Turner by" }, { "docid": "93024", "title": "", "text": "or take some other easily accomplished step,’ ” we can impute finality to the court’s dismissal and hear the appeal. Taylor-Holmes, 503 F.3d at 610 (quoting Strong v. David, 297 F.3d 646, 648 (7th Cir.2002)). Here, at the Pavey hearing, after saying that it was dismissing the case, the district court repeatedly told Hernandez to “take [the case] upstairs” — that is, to appeal the case to this court. In the corresponding docket entry, the district court states, “Civil ease terminated.” These actions indicate that the district court was finished with the case, and that if Hernandez wanted to pursue his claim further, he needed to do so through the appellate process. Thus, the district court’s dismissal without prejudice was “effectively a final order.” Kaba, 458 F.3d at 680. We have jurisdiction over the appeal. C. Exhaustion of Grievances Regarding exhaustion specifically, Hernandez properly navigated the requirements of § 1997e(a) of the PLRA. A prisoner cannot bring a cause of action under federal law regarding prison conditions “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 88, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “completing] the administrative review process” is “a pre condition to [a prisoner] bringing suit in federal court”). Federal courts strictly enforce this requirement, and a prisoner fulfills this duty by adhering to “the specific procedures and deadlines established by the prison’s policy.” King, 781 F.3d at 893 (citing Woodford, 548 U.S. at 93, 126 S.Ct. 2378); see also Maddox v. Love, 655 F.3d 709, 720-21 (7th Cir.2011) (quoting Jones v. Bock, 549 U.S. 199, 219, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (noting that “ ‘the applicable procedural rules’ that a prisoner must properly exhaust are defined not by the PLRA, but by the prison grievance process itself’)). Therefore, Hernandez needed to comply with the CCDOC grievance process: he had to have filed any grievance within 15 days of the alleged incident, and he had to have appealed within 14 days of receipt of any administrative response to the grievance. Because" }, { "docid": "93025", "title": "", "text": "exhausted.” 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 88, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “completing] the administrative review process” is “a pre condition to [a prisoner] bringing suit in federal court”). Federal courts strictly enforce this requirement, and a prisoner fulfills this duty by adhering to “the specific procedures and deadlines established by the prison’s policy.” King, 781 F.3d at 893 (citing Woodford, 548 U.S. at 93, 126 S.Ct. 2378); see also Maddox v. Love, 655 F.3d 709, 720-21 (7th Cir.2011) (quoting Jones v. Bock, 549 U.S. 199, 219, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (noting that “ ‘the applicable procedural rules’ that a prisoner must properly exhaust are defined not by the PLRA, but by the prison grievance process itself’)). Therefore, Hernandez needed to comply with the CCDOC grievance process: he had to have filed any grievance within 15 days of the alleged incident, and he had to have appealed within 14 days of receipt of any administrative response to the grievance. Because Hernandez’s grievances involve different time frames and address different conduct by CCDOC personnel, they are not alike in kind, and we analyze each separately. See Kaba, 458 F.3d at 685 (noting that because “all grievances are not alike, ... a more discriminating analysis is necessary” that itemizes and analyzes .each grievance separately). 1. Excessive Force Claim Hernandez’s excessive force claim is not subject to the PLRA exhaustion requirement because no administrative remedies were “available” to him during the relevant exhaustion period. See 42 U.S.C. § 1997e(a); Woodford, 548 U.S. at 93, 126 S.Ct. 2378. “If administrative remedies are not ‘available’ to an inmate, then an inmate cannot be required to exhaust;” Kaba, 458 F.3d at 684; see also King, 781 F.3d at 896 (“Prisoners are required to exhaust grievance procedures they have been told about, but not procedures they have not been told about.”). Administrative remedies are primarily “unavailable” to prisoners where “affirmative misconduct” prevents prisoners from pursuing administrative remedies. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006) (remedies unavailable where prison officials “do" }, { "docid": "23023302", "title": "", "text": "exhaustion requirement. Compare Woodford v. Ngo, 126 S.Ct. at 2393 (Breyer, J., concurring in the judgment), with Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Even if we could, no such exception applies here. Ngo hasn’t shown that administrative procedures were unavailable, that prison officials obstructed his attempt to exhaust or that he was prevented from exhausting because procedures for processing grievances weren’t followed. Ngo argues that prison officials didn’t follow procedures and misled him. However, the acts he complains about took place only after Ngo sent his March 20, 2001, letter to Deputy Warden Kane. As a result, they could have no effect on Ngo’s ability to exhaust, as he had already missed the deadline. AFFIRMED. PREGERSON, Circuit Judge, concurring: I concur in the majority’s determination that Ngo did not exhaust his administrative remedies because Ngo did not challenge the decision by prison authorities until three months after the decision was made. I write separately, however, to note my serious concerns about the constitutionality of California’s prisoner grievance process. As Justice Stevens noted in his dissent, the Supreme Court’s majority opinion in this case “le[ft] open the question whether a prisoner’s failure to comply properly with procedural requirements that do not provide a ‘meaningful opportunity for prisoners to raise meritorious grievances’ would bar the later filing of a suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 120, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (Stevens, J., dissenting). It is not clear to me that California’s system provides a meaningful opportunity for prisoners to raise meritorious grievances. In particular, I write to address two problems with the grievance process: (1) the requirement that appeals must be filed within fifteen days; and (2) the lack of clarity about how appeals should be filed. 1. The statute of limitations for § 1983 claims in California is two years. Ngo v. Woodford, 403 F.3d 620, 630 n. 4 (9th Cir.2005). California regulations, however, require an inmate to appeal a decision made by prison authorities “within 15 working days of the event or decision" }, { "docid": "8782381", "title": "", "text": "was denied a reasonable opportunity to exercise his religion without adequate penological justification. B. Summary Judgment — Dismissal of Counts 1 and 4 The district court allowed Maddox’s complaint to go forward on Counts 1 and 4, but then granted the defendants’ motion for summary judgment on both counts because Maddox failed to properly exhaust his administrative remedies. Maddox concedes that he failed to grieve his complaint for access to religious materials (Count 1), Appellant’s Reply Br. p. 2 n. 1 (stating that his “grievance did not address alleged denial of access to religious literature, and therefore, his claims as to this issue were properly dismissed on summary judgment”), so we find that the district court properly dismissed that count. The district court, however, also dismissed Maddox’s claim for group worship (Count 4) because he failed to list the names of the defendants, or if not known at the time, their description, in the grievance pursuant to 20 Illinois Administrative Code § 504.810. We review de novó the question whether the prisoner has met the exhaustion requirement. See Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir.2005). Exhaustion is an affirmative defense with the burden of proof on the defendants. See Jones v. Bock, 549 U.S. 199, 212, 127 S.Ct. 910,166 L.Ed.2d 798 (2007). The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Section 1997e(a) requires “proper exhaustion”; that is, the inmate must file a timely grievance utilizing the procedures and rules of the state’s prison grievance process. See Woodford v. Ngo, 548 U.S. 81, 90, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); see also Conyers, 416 F.3d at 584. The “applicable procedural rules” that a prisoner must properly exhaust are defined not by the PLRA, but by the prison grievance process itself. Jones, 549 U.S. at 218, 127 S.Ct. 910. We have taken a “strict compliance approach to exhaustion.” Dole v. Chandler, 438 F.3d 804, 808 (7th Cir.2006). Thus, “[a] prisoner must properly use the prison’s" }, { "docid": "6212315", "title": "", "text": "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). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The exhaustion requirement is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Id. at 520, 122 S.Ct. 983; see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Exhaustion under the PLRA requires that a prisoner comply with procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. See Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Booth v. Chumer, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). A prisoner may thus file a § 1983 action concerning the conditions of his confinement only after he has exhausted the prison’s administrative remedies. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001). As Plaintiff notes, however, see Opp. at 5, the PLRA requires that an inmate exhaust only those administrative remedies “as are available.” 42 U.S.C. § 1997e(a). “We have recognized that the PLRA therefore does not require exhaustion when circumstances render administrative remedies ‘effectively unavailable.’ ” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.2010) (internal citations omitted). In this case, Plaintiff argues that both his mental incompetence and his ignorance of the administrative processes render the remedies “unavailable.” The Court will address each contention in turn. 1. Mental Incompetence Plaintiff first maintains that his “mental incompetence and ongoing victimization and humiliation by Defendant demonstrate that the prison grievance process was absolutely unavailable to him.” Opp. at 6. In so arguing, however, Plaintiff relies on language from distinguishable, non-binding authorities. See id. at 4-7. The two cases that" }, { "docid": "22629153", "title": "", "text": "prison. If this were his complaint, he did indeed miss the 15-day deadline. Importantly, however, Kimbrell also acknowledged that Sapp might be seeking current medical treatment and again advised him on how to get it, noting at the bottom of the form, “If you need medical treatment, submit a CDC 7362 to the Clinic.” Thus, all of Sapp’s administrative appeals were screened for proper reasons. Administrative remedies were accordingly “available,” and Sapp was required to exhaust them. In reaching this conclusion, we do not foreclose the possibility that exhaustion might also be excused where repeated rejections of an inmate’s grievances at the screening stage give rise to a reasonable good faith belief that administrative remedies are effectively unavailable. Such an excuse is not available here, however, because, despite the repeated screenings, Sapp could have no reasonable belief that administrative remedies were effectively unavailable. Kimbrell specifically instructed Sapp on how to seek medical care, and on how to appeal any denial of care, but Sapp did not follow those instructions. We further note that nothing in the district court record suggests that the prison had created draconian procedural requirements that would “trip[ ] up all but the most skillful prisoners” — which might also render administrative remedies effectively unavailable so as to excuse a failure to exhaust. See Ngo, 548 U.S. at 102, 126 S.Ct. 2378 (leaving open the possibility that an exception to the exhaustion requirement might exist in such circumstances). Sapp had a clear avenue to follow to receive medical care or to exhaust his remedies if he did not receive the desired care. First, he could have filed a 7362 Health Care Request form, as Kimbrell suggested he do. If prison officials did not respond, or did not provide the needed care, he could have filed a grievance about the denial of care, and appended the form showing that he had requested the care in accordance with prison procedures. Then, he could have pursued that grievance through the full administrative appeals process. Nothing in the record indicates that these apparently straightforward procedures “trip[] up” ordinary inmates. To the" }, { "docid": "22629136", "title": "", "text": "improper screening or the denial of an Olson review of his records. Although Sapp had filed grievances regarding the denial of medical treatment, the magistrate judge concluded that these grievances would not have sufficed to exhaust his claims against Peterson because they did not “mention defendant Peterson by name or suggest that defendant Peterson was responsible for the alleged inadequate treatment or delays.” Although Sapp’s November 18, 2002, appeals form named Peterson, that appeal was not exhausted before the suit was filed. The district judge adopted the magistrate judge’s proposed Findings and Recommendations in full and dismissed Sapp’s claims without prejudice. Sapp timely appealed to this court. After holding the case in abeyance pending our decision on remand in Ngo v. Woodford, 539 F.3d 1108 (9th Cir.2008), we appointed pro bono counsel for Sapp. II. Jurisdiction and Standard of Review The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal based on Sapp’s failure to exhaust. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir.2007). In deciding a motion to dismiss for failure to exhaust, a court may “look beyond the pleadings and decide disputed issues of fact.” Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.2003). We review the district court’s factual findings for clear error. O’Guinn, 502 F.3d at 1059. III. Discussion The PLRA requires a prisoner to exhaust his administrative remedies before filing a lawsuit concerning prison conditions: 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 ... correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The Supreme Court has held that this exhaustion requirement demands “proper” exhaustion. Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To “property]” exhaust, a prisoner must comply “with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on" }, { "docid": "22418333", "title": "", "text": "pending, Mr. Little was transferred several more times. On April 21, 2008, he filed an application for a preliminary injunction with the district court. Mr. Little stated that he was facing “hostility, resentment and retaliation” at Joseph Harp Correctional Center (“JHCC”) after again requesting a vegan diet. He asked the court to order the ODOC Director and staff at JHCC to provide him with his desired diet “pending the outcome of this litigation.” On September 18, 2008, the district court granted defendants’ motion to dismiss, finding that Mr. Little had not ex hausted his administrative remedies. It also denied Mr. Little’s motion for a preliminary injunction after concluding that the motion lacked a sufficient relationship to the complaint. Mr. Little now appeals both rulings. II. DISCUSSION A. Exhaustion of Administrative Remedies The district court found that Mr. Little had not exhausted his administrative remedies for the claims he asserted in his complaint. “We review de novo the district court’s finding of failure to exhaust administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002). Under the Prisoner Litigation Reform Act (“PLRA”), a prisoner must exhaust his administrative remedies prior to filing a lawsuit regarding prison conditions in federal court. 42 U.S.C. § 1997e(a); Booth v. Chumer, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Indeed, “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Because the prison’s procedural requirements define the steps necessary for exhaustion, id. at 218, 127 S.Ct. 910, an inmate may only exhaust by properly following all of the steps laid out in the prison system’s grievance procedure. Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim.... ” Jemigan, 304 F.3d at 1032. The ODOC has a four-step process for administrative exhaustion of prisoner claims. Initially, a prisoner must seek to resolve any complaint by informally raising the matter with an appropriate staff member. See Oklahoma" }, { "docid": "22071916", "title": "", "text": "1183 (9th Cir.2005). A dismissal for failure to exhaust administrative remedies receives “clear error” review of factual issues. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We review the district court’s legal conclusions de novo. Id. Discussion The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90, 126 S.Ct. 2378. Prisoners need comply only with the prison’s own grievance procedures to properly exhaust under the PLRA. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Griffin properly appealed his grievance through all steps that the Maricopa County jail held out. He filed an Inmate Grievance Form and completed the prison’s appeals process. Defendants assert that Griffin nonetheless failed to exhaust properly. Griffin did not grieve that prison staff members were deliberately indifferent to his medical needs, an allegation that now forms the primary component of his Eighth Amendment claim. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Defendants contend that, without this allegation, the grievance was not factually specific enough to satisfy the PLRA’s exhaustion requirement. Griffin asserts that his grievance alleged every fact necessary for proper exhaustion. I. Appropriate Standard of Factual Specificity The Supreme Court held in Jones v. Bock that a prison’s own grievance process, not the PLRA, determines how detailed a grievance must be to satisfy the PLRA exhaustion requirement. 549 U.S. at 218,127 S.Ct. 910. The Maricopa County jail’s procedures, however, provide little guidance as to what facts a grievance must include. The jail’s Inmate Grievance Form" }, { "docid": "23297252", "title": "", "text": "on Johnson’s remaining retaliation claim. By order dated August 23, 2010, Judge Buchwald granted that motion, dismissing the amended complaint in its entirety. See Johnson v. Killian, No. 07 Civ. 6641, 2010 WL 3468124 (S.D.N.Y. Aug. 23, 2010). On appeal, Johnson argues that the District Court erred in granting summary judgment in favor of defendants because he had indeed exhausted the administrative remedy process when he filed and fully appealed the administrative grievance in 2005 concerning FCI Otisville’s prayer policies under Menifee. DISCUSSION By order dated April 28, 2011, we dismissed those aspects of Johnson’s appeal not related to whether he had failed to exhaust his administrative remedies. Following our de novo review, we vacate the remaining portion of the judgment of the District Court, which held that Johnson failed to exhaust his administrative remedies concerning his congregational prayer policy claim. The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ..., 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). “[T]he PLRA’s exhaustion requirement applies to 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). The Supreme Court has held that “the PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). That is, “prisoners must complete the administrative review process in accordance with the applicable procedural rules — rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation and quotation marks omitted). We have described the grievance process available to federal prisoners as follows: BOP’s procedural rules ... ereate[ ] a four-step administrative grievance system for prisoner complaints. The first step require[s] inmates to “present an issue of concern informally”" }, { "docid": "22629137", "title": "", "text": "O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir.2007). In deciding a motion to dismiss for failure to exhaust, a court may “look beyond the pleadings and decide disputed issues of fact.” Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.2003). We review the district court’s factual findings for clear error. O’Guinn, 502 F.3d at 1059. III. Discussion The PLRA requires a prisoner to exhaust his administrative remedies before filing a lawsuit concerning prison conditions: 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 ... correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The Supreme Court has held that this exhaustion requirement demands “proper” exhaustion. Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To “property]” exhaust, a prisoner must comply “with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91, 126 S.Ct. 2378. Sapp acknowledges that he failed to properly exhaust his claims, but contends that we should nonetheless permit his suit to go forward for two reasons. First, Sapp contends that the PLRA requires exhaustion only of those administrative remedies that are “available,” and that the improper screening of his appeals rendered administrative remedies effectively unavailable to him. Second, Sapp urges us to recognize, and apply to him, an equitable exception to the PLRA’s exhaustion requirement where a prisoner’s special cir cumstances justify non-compliance with administrative regulations. We address each contention in turn. A. Effectively Unavailable Remedies 1 The PLRA requires that an inmate exhaust only those administrative remedies “as are available.” 42 U.S.C. § 1997e(a). We have recognized that the PLRA therefore does not require exhaustion when circumstances render administrative remedies “effectively unavailable.” See Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir.2010). In Nunez v. Duncan, we held that a prisoner’s failure to exhaust was excused where he “took reasonable and appropriate steps to" }, { "docid": "7992968", "title": "", "text": "702, 707 (9th Cir.2013) (internal quotation marks, citations, and alterations omitted). Ill A. Granting Summary Judgment to Turner Was Error At the outset, we reject the government’s argument that El-Shaddai waived his right to appeal the magistrate’s findings on exhaustion because El-Shaddai did not specifically object to them. “[Pjarties who do not object to a magistrate’s report waive their right to challenge the magistrate’s factual findings but retain their right to appeal the magistrate’s conclusions of law.” Baxter v. Sullivan, 928 F.2d 1391, 1394 (9th Cir.1991). Here, El-Shaddai does not challenge the magistrate’s factual findings on whether he filed the grievance or its contents. Rather, he challenges the legal conclusion as to whether the grievance gave adequate notice with regard to Turner, which we review de novo. See Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir.2006); cf. Viniemtos v. U.S., Dep’t of Air Force Through Aldridge, 939 F.2d 762, 768 (9th Cir.1991). The question of whether the district court erred in granting summary judgment in favor of Turner is properly before us. As to the merits of the issue, the Prison Litigation Reform Act (“PLRA”) requires inmates to both substantively and procedurally exhaust all claims through administrative avenues before filing a suit in court. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The scope of this requirement depends on the scope of administrative remedies that the state provides. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). In California, inmate grievances must “describe the problem and the action requested.” Cal.Code Reg., tit. 15 § 3084.2. We have said that “when a prison’s grievance procedures do not specify the requisite level of detail” needed to exhaust a claim, the standard enunciated in the Seventh Circuit applies. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009). That standard provides: [w]hen the administrative rulebook is silent, .a grievance suffices if it alerts the prison to the nature of the wrong" }, { "docid": "23458009", "title": "", "text": "paperwork, including a facility response to the formal grievance, and returned the grievance unanswered. Shortly thereafter, the review authority warned him that incorrectly submitted appeals would be re turned without a response. Ultimately the review authority notified him that noncom-pliant appeals would not be addressed or returned to him. Thus, his later appeals were left unanswered and unreturned. The issue is whether under these circumstances Mr. Thomas has satisfied ODOC’s grievance process, and, thus, the mandatory exhaustion rule. Mr. Thomas argues that defendants made the grievance process unavailable by placing him on grievance restriction and by requiring him to comply with their interpretations of the grievance-restriction requirements. Particularly, he complains that defendants required a notarized affidavit while denying him notary service, failed to provide the proper forms to allow him to appeal, failed to return documents to him as required by the grievance process, and imposed improper and arbitrary requirements on his paperwork (e.g., directing him to use more than one word to describe his prior grievances). He also argues that the review authority improperly refused to answer his appeals because the grievance policy (OP-090124, § IX.A.2) gives him the right to appeal the determination that he was abusing the grievance process. “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system’s critical procedural rules.” Id. at 95, 126 S.Ct. 2378. Thus, “[i]n Woodford, we held that to properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,’ ... — rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford, 548 U.S. at 88, 126 S.Ct. 2378). The district court did not err in concluding that Mr. Thomas failed to exhaust his administrative remedies when he did" }, { "docid": "23458010", "title": "", "text": "refused to answer his appeals because the grievance policy (OP-090124, § IX.A.2) gives him the right to appeal the determination that he was abusing the grievance process. “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system’s critical procedural rules.” Id. at 95, 126 S.Ct. 2378. Thus, “[i]n Woodford, we held that to properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,’ ... — rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford, 548 U.S. at 88, 126 S.Ct. 2378). The district court did not err in concluding that Mr. Thomas failed to exhaust his administrative remedies when he did not properly complete all three required written steps. “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.” Jernigan, 304 F.3d at 1032. “[T]he doctrine of substantial compliance does not apply.” Id. Once notified of deficiencies at the formal grievance stage, Mr. Thomas chose not to avail himself of the opportunity to cure them. He then chose to continue to submit formal grievances that were contrary to defendants’ reasonable interpretation of the grievance requirements. Mr. Thomas “may not successfully argue that he had exhausted his administrative remedies by, in essence, failing to employ them.” Id. at 1033. As to his contentions about OP-090124, § IX.A.2, it appears that the first legal argument concerning this regulation appeared in Mr. Thomas’s post-judgment motion for reconsideration. Such a motion “is not appropriate to ... advance arguments that could have been raised in prior briefing.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). Thus, we decline" }, { "docid": "22071915", "title": "", "text": "and unsafe living conditions in violation of the Eighth Amendment of the United States Constitution. Defendants moved to dismiss for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The district court granted Defendants’ motion and dismissed the action with prejudice. It held that Griffin had failed to exhaust his administrative remedies, noting that he alleged deliberate indifference to his medical needs in his federal action without having first grieved it to the prison. Griffin filed a Motion to Reconsider, which the district court granted for reasons unrelated to this appeal. The district court then dismissed the action without prejudice, reiterating the reasoning underlying its earlier dismissal. Griffin timely appeals. The district court’s dismissal without prejudice would typically constitute a non-final judgment and preclude appellate review. However, we treat the dismissal as final because Griffin “has no way of curing the defect found by the court: there is no indication he could begin a new administrative process in the prison.” See Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.2005). A dismissal for failure to exhaust administrative remedies receives “clear error” review of factual issues. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We review the district court’s legal conclusions de novo. Id. Discussion The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90, 126 S.Ct. 2378. Prisoners need comply only with the prison’s own grievance procedures to properly exhaust under the PLRA. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798" }, { "docid": "23434423", "title": "", "text": "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). Prisoners must utilize the state’s grievance procedures, regardless of whether the relief sought is offered through those procedures. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). In Woodford v. Ngo, the Supreme Court held that “the PLRA exhaustion requirement requires proper exhaustion.” 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The prisoner in Woodford argued that administrative remedies were unavailable once the prison rejected his grievance as untimely. Id. at 87, 126 S.Ct. 2378. The Supreme Court rejected this argument. The Court held that “[pjroper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules” as a precondition to filing a federal lawsuit. Id. at 90, 126 S.Ct. 2378. Woodford explained that compliance with state procedural rules is necessary to achieve “[t]he benefits of exhaustion [that] can be realized only if the prison grievance system is given a fair opportunity to consider the grievance.” Id. at 95, 126 S.Ct. 2378. In Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), the Supreme Court was again confronted with several questions regarding the scope of the PLRA exhaustion requirement. One of those questions was whether a prisoner fails to exhaust a claim against a particular defendant by failing to name that defendant in the internal prison grievance. Id. at 205, 217, 127 S.Ct. 910. The Supreme Court explained that Woodford “held that to properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules’ — rules that are defined not by the PLRA, but by the prison grievance process itself.” Id. at 218, 127 S.Ct. 910 (quoting Woodford, 548 U.S. at 88, 126 S.Ct. 2378) (citation omitted). It follows, as recognized by the Court, that “[t]he level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim,” because “it is the prison’s requirements, and" }, { "docid": "4802962", "title": "", "text": "action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted”). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). In Wood-ford, the Supreme Court held that a prisoner’s § 1983 action must be dismissed for failure to exhaust administrative remedies where the underlying grievance was denied as untimely even though the claim would not have been barred by the applicable statute of limitations. Woodford makes clear that a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance. Id. at 83, 126 S.Ct. 2378. Here, Scott’s grievance against Dr. Faghihnia was rejected as untimely during the administrative process. Therefore, under Woodford, he failed to exhaust his administrative remedies. C. Dr. Antonini Scott appeals the district court’s dismissal of his deliberate indifference claim against Dr. Antonini under Rule 12(b)(6) of the Federal Rules of Civil Pro cedure. The district court concluded that these claims were not time-barred and were properly exhausted. However, it granted Dr. Antonini’s motion to dismiss on the basis that Scott’s allegations did not rise to the level of deliberate indifference. Dismissal was erroneous. A prisoner has adequately stated a cause of action “when he alleges that prison authorities have denied reasonable requests for medical treatment in the face of an obvious need for such attention where the inmate is thereby exposed to undue suffering or the threat of tangible residual injury.” Westlake, 537 F.2d at 860. The inquiry into whether a prison official acted with deliberate indifference has both an objective and subjective component. Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir.2001). In order to satisfy the objective component, the prisoner must show that the medical need is “sufficiently serious.” Id. at 702-03 (quoting Farmer v. Brennan, 511 U.S. 825," }, { "docid": "22629156", "title": "", "text": "exception here. We need not decide here whether such circumstances might warrant an equitable exception to the PLRA’s exhaustion requirement, however, because Sapp would not qualify for it. Although Sapp’s request for a reasonable accommodation to help him satisfactorily complete an administrative grievance form and his many attempts to pursue his complaint outside of the prison’s administrative grievance process — through letters to the Medical Board of California, the warden, and the California Inspector General — suggest that Sapp did believe in good faith that he could not pursue the administrative grievance process any further, that subjective belief was not reasonable, as explained above. The procedures for obtaining medical care were clear: file a 7362 Health Care Request form, and then file an administrative grievance if officials failed to respond. Kimbrell specifically advised Sapp to submit a 7362 form if he sought medical care. Although Sapp filed several such forms, he never followed up by filing a grievance about prison officials’ failure to respond adequately to those requests. Because he never even attempted to file any such grievance, he could not have reasonably believed that he could not pursue the administrative appeals process any further. We therefore decline to excuse Sapp’s failure to exhaust under the equitable exception he proposes. IV. Conclusion We hold that administrative remedies are “effectively unavailable” — and that the PLRA’s exhaustion requirement is therefore excused- — -where prison officials improperly screen a prisoner’s grievance or grievances that would have sufficed to exhaust the claim that the prisoner seeks to pursue in federal court. Nonetheless, we conclude that Sapp’s failure to exhaust is not excused because prison officials did not improperly screen any grievances that would have sufficed to exhaust his claims. We further conclude that Sapp is not entitled to any equitable exception to the PLRA’s exhaustion requirement. We accordingly affirm the district court’s order dismissing Sapp’s claims without prejudice. AFFIRMED. . An Olson review is “an administrative procedure which allows an inmate to review his central file.” James v. Scribner, No. CV 07-880-TUC-RCC, 2010 WL 2605634, *1 (E.D.Cal. June 28, 2010). . We do" } ]

[ { "docid": "16492929", "title": "", "text": "power to levy assessments as an equitable servitude and therefore as compensable property in a condemnation proceeding. See State v. Human Relations Research Foundation, 64 Wash.2d 262, 391 P.2d 513, 516 (1964); see also United States v. 129.4 Acres of Land, More or Less, 572 F.2d 1385, 1386 (9th Cir.1978). To ignore the import of these takings cases, they argue, is to ignore governing state law and thereby to deprive them of their bargained-for security. Any lien rights held by the Bondholders are statutory and derive from section 87.-03.215 of the Washington Code. See supra note 2. Thus the Bondholders have a lien over the District’s assessment power only if section 87.03.215 grants such a lien. Bearing in mind the principle that statutory liens are strictly construed, Shope Enterprises, Inc. v. Kent School District, 41 Wash.App. 128, 702 P.2d 499, 502 (1985), a reading of that statute compels the conclusion that no such lien exists. Title 87 does not define the term “property.” The Bondholders would have us incorporate a meaning of that term derived from takings cases. But incorporating an interpretation of that term from another context would be improper where, as here, that interpretation would be inconsistent with the statutory scheme. See 2A Sutherland Statutory Construction § 50.03 (4th ed. 1984). The first sentence of section 87.03.215 provides that payments due on the bonds are to be paid from assessment revenues. Thus the bondholders’ primary security is the assessment mechanism. The second sentence states that “in addition to this provision [for assessments] and the other provisions herein made for the payment of said bonds and interest thereon ... said bonds ... shall become a lien upon all the water rights and other property acquired by [the] irrigation district.” Notably, this sentence includes no specific mention of the assessment power, though the section otherwise deals with that power. The separation of the assessment power on one hand from the additional security of lien rights on the other suggests that the Washington legislature never intended to establish a lien over the assessment power itself. Moreover, the statute provides an enforcement" } ]

[ { "docid": "4773201", "title": "", "text": "in a letter dated January 26, 1989, to debtor and the property manager. No rents were paid over to UNUM however, so on January 30, 1989, UNUM complained in Pima County Superi- or Court for the appointment of a receiver without notice to debtor. Instead, a hearing with notice was scheduled for February 7, 1989. UNUM’s subsequent request for an interim receiver was set for February 3, 1989, at 11:15 a.m. The debtor petitioned for relief under the United States Bankruptcy Code 22 minutes before that hearing. Motion, pp. 4-5. UNUM’s zealous but fruitless pursuit of its state law remedies were thereupon halted by the automatic stay of 11 U.S.C. Section 362(a). The reasoning of Butner, though decided under prior law, is no less applicable in Code cases, and 11 U.S.C. Section 552(b) demonstrates a continuing historical concern of Congress that property rights should usually be controlled by state law rather than the “mere happenstance” of bankruptcy. Section 552(b) provides: Except as provided is sections 363, 506(c), 544, 545, 547, and 548 of this title, if the debtor and a secured party enter into a security agreement before commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds, product, offspring, rents, or profits of such property, then such security interest extends to such proceeds, product, offspring, rents or profits acquired by the estate after commencement of the case to the extent provided by such security agreement and by applicable non-bankruptcy law, except to the extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise. Rents to which a security interest extends post-petition under Section 552(b) are “cash collateral” under 11 U.S.C. Section 363(a). See also S.Rep. No. 989, 95th Cong., 2nd Sess. 55, U.S.Code Cong. & Admin. News 1978, p. 5787. Subsection 363(c)(1) forbids a trustee or debtor-in-possession from using cash collateral unless each entity with an interest therein consents or the court, after notice and a hearing, authorizes such use" }, { "docid": "6105921", "title": "", "text": "11 U.S.C. § 362(d)(1). Appellants, as the moving party, bear the initial burden of demonstrating such “cause” exists. See 2 Collier on Bankruptcy, para. 362.10, at 362-87 (15th ed. 1994). To meet this burden, Appellants assert the lien securing the TRANs is a statutory lien, and thus is exempt from 11 U.S.C. section 552(a) and survives the commencement of the bankruptcy. Accordingly, Appellants argue, the County’s failure to make monthly set asides constitutes “cause” for relief from the bankruptcy stay. The issue to be decided, therefore, is whether Appellants’ interest is a statutory lien, and therefore not covered by section 552(a). 1. The security is a statutory lien. 11 U.S.C. section 552(a) provides: [Ejxcept as provided in subsection (b) of this section, property acquired by the estate or by the debtor after the commencement of the case is not subject to any lien resulting from any security agreement entered into by the debtor before the commencement of the case. By its terms, section 552(a) only applies to liens resulting from security agreements, not other types of liens such as statutory liens. See, e.g., United States v. Fuller (In re Fuller), 134 B.R. 945, 948 (Bankr.9th Cir.1992); 4 Collier, para. 552.01, at 552-4. Appellants argue the lien securing the TRANs is a statutory lien, and therefore section 552(a) does not apply. The court agrees. 11 U.S.C. section 101(37) defines a “lien” as a “charge against or interest in property to secure payment of a debt or performance of an obligation.” The legislative comments to this provision state, [i]n general, the concept of lien is divided into three kinds of liens: judicial liens, security interests, and statutory liens. Those three categories are mutually exclusive .... S.Rep. No. 95-989, 95th Cong., 2nd Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 6269. 11 U.S.C. section 101(53) defines a “statutory lien,” in relevant part, as a lien arising solely by force of a statute on specified circumstances or conditions, ... but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and" }, { "docid": "1996905", "title": "", "text": "5811, 6269. Reprinted in Norton Bankruptcy Law and Practice and Related Legislation, Legislative History, and Editorial Commentary, 1987-1988, Edition. P. 38. Also, the Senate and House Reports as to the definition of a “statutory lien”, state that the definition of a statutory lien excludes judicial liens whether or not they are provided for, or are dependent on a statute, and whether or not they are made fully effective by statute. The Reports further note that a statutory lien is only one that arises automatically, and is not based on an agreement to give a lien or on judicial action. (Emphasis added). Mechanics, materialmen’s, warehousemen’s and tax liens are given as examples of statutory liens. H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 314 (1977); S.Rep. No. 95-989, 95th Cong. 2nd Sess. 27 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5813, 6271. Id. at 48. (Emphasis added). The House and Senate Reports as to the definition of “security agreement” states that it is a lien “created by an agreement”, and that although the term is similar to that under the UCC, Article IX, it is broader and includes real estate mortgages, “as are all other liens created by Agreement”. H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 314 (1977); S.Rep. No. 95-989, 2nd Sess. 26 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5812, 6271. Id. at 47. (Emphasis added). The Court is referred to two different Indiana statutes by which it could be argued that this dissolution decree created a “Judicial lien”. First there is I.C. 34-1-45-2 which provides as follows: Sec. 2. All final judgments for the recovery of money or costs in the circuit court and other courts of record of general original jurisdiction sitting in the state of Indiana, whether state or federal, shall be a lien upon real estate and chattels real liable to execution in the county where, and only where, such judgment has been duly entered and in dexed in the judgment docket as provided by law, from and after the time the same shall have been so entered and indexed, and until the expiration of ten" }, { "docid": "6105922", "title": "", "text": "of liens such as statutory liens. See, e.g., United States v. Fuller (In re Fuller), 134 B.R. 945, 948 (Bankr.9th Cir.1992); 4 Collier, para. 552.01, at 552-4. Appellants argue the lien securing the TRANs is a statutory lien, and therefore section 552(a) does not apply. The court agrees. 11 U.S.C. section 101(37) defines a “lien” as a “charge against or interest in property to secure payment of a debt or performance of an obligation.” The legislative comments to this provision state, [i]n general, the concept of lien is divided into three kinds of liens: judicial liens, security interests, and statutory liens. Those three categories are mutually exclusive .... S.Rep. No. 95-989, 95th Cong., 2nd Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 6269. 11 U.S.C. section 101(53) defines a “statutory lien,” in relevant part, as a lien arising solely by force of a statute on specified circumstances or conditions, ... but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute. The legislative comments to section 101(53) provide “[a] statutory lien is only one that arises automatically, and is not based on an agreement to give a lien or on a judicial action.” S.Rep. No. 95-989, 95th Cong., 2nd Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 6271. 11 U.S.C. section 101(51), on the other hand, defines a “security interest” as a “lien created by an agreement,” and 11 U.S.C. section 101(50) defines a “security agreement” as an “agreement that creates or provides for a security interest.” Collier distinguishes statutory liens and security interests by noting: [I]f the lien arises by force of statute, without any prior consent between the parties, it will be deemed a statutory lien.... If the creation of the lien is dependent upon an agreement, it is a security interest even though there is a statute which may govern many aspects of the lien. 2 Collier, para. 101.53, at 101-150-51. The difference between statutory liens and security interests is sometimes" }, { "docid": "23684014", "title": "", "text": "552 to the parties’ agreement. The Debt- or argues that § 552(a) precludes the fixing of a lien resulting from a prepetition security agreement on property acquired after the filing of the Petition. The Court is convinced that this is a proper interpretation. From the legislative history it seems clear that this is exactly the effect which Congress intended. The Senate report, discussing § 552 says: Under the Uniform Commercial Code, article 9, creditors may take security interest in after-acquired property. Section 552 governs the effect of such a prepetition security interest in postpetition property. It applies to all security interests as defined in section 101(37) of the bankruptcy code, not only to U.C.C. security interests. As a general rule, if a security agreement is entered into before the commencement of the case, then property that the estate acquires is not subject to the security interest created by a provision in the security agreement extending the security interest to after-acquired property.... Senate Report No. 95-989, 95th Cong., 2nd Sess. (1978) 91, U.S.Code Cong. & Admin. News 1978, pp. 5787, 5877. Thus, § 552 applies only to the crops which were in existence at the time of the filing of the Petition. The Debtor further argues that § 552(b) is not applicable to the new crops. Again, the Court is convinced of the accuracy of this conclusion. The language, although far from clear, supports this conclusion. Further, in regard to § 552(b), Collier’s points out that “... (i)t must be emphasized, however, that subsection (b) creates an exception for proceeds generated by prepetition collateral, and not for after-acquired property, other than proceeds, product, offspring, rents, and profits, that would otherwise be collateral under the security agreement.” 4 Collier on Bankruptcy (15th Ed.) p. 552-5, ¶ 552.02. The next issue to which the Court must address itself is the percentage of proceeds to which the Bank is entitled. From the above discussion, it is clear that the only proceeds to which the Bank has any entitlement are the proceeds from those crops which were in existence at the time of the filing" }, { "docid": "20920880", "title": "", "text": "the Contract and the TRANS. . The Senate Report on the Bankruptcy Reform Act of 1978 provides: A Security Interest ... is a lien created by an agreement. Security Agreement is defined as the agreement creating the security interest. Though these terms are similar to the same terms in the Uniform Commercial Code, article IX, they are broader.... All U.C.C. security interests and security agreements are, howev er, security interests and security agreements under this definition. S.Rep. No. 989, 95th Cong., 2d Sess. 26 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5812. . Movants cite Badger Mountain Irrigation Dist. Secured Bondholders’ Comm. v. Badger Mountain Irrigation Dist. (In re Badger Mountain Irrigation Dist.), 885 F.2d 606 (9th Cir.1989), for the proposition that the Ninth Circuit has already held that this type of lien is a statutory lien. In Badger Mountain, a case that did not involve § 552(a), the Ninth Circuit merely noted its agreement with the bankruptcy court's undisputed conclusion that the lien asserted by the bondholders was a statutory lien. Id. at 608 n. 2. This is not surprising because the Washington statute was a typical statutory lien provision which did not require consent but instead arose automatically upon all water rights and other property acquired by the irrigation district. . Section 552(b)(1) provides: Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds, product, offspring, or profits of such property, then such security interest extends to such proceeds, product, offspring, or profits acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise." }, { "docid": "19245057", "title": "", "text": "receivables, had acted permissibly in light of NHBDC’s actual consent to such use and that NHBDC had no right to any of the sums collected on the post-petition accounts. The district court affirmed the decision, opining that neither the Code nor the “equities of the case” entitled NHBDC to relief in this instance. This appeal ensued. II. Section 552(b) and the Nature of NHBDC’s Claim. Section 552 of the Bankruptcy Code concerns the post-petition effect of security interests. 11 U.S.C. § 552. Its purpose is to prevent a creditor’s pre-petition security interest in “after-acquired property” (a “floating lien”), such as NHBDC’s interest in Cross’ receivables, from attaching to property acquired by the estate or debtor-in-possession after the filing of a bankruptcy petition. See H.R.Rep. No. 595, 95th Cong., 1st Sess. 376-77 (1977) reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6332-33 (“House Report”); S. Rep. No. 989, 95th Cong., 2d Sess. 91 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5877 (“Senate Report”). Section 552(a) plainly states this general rule: “[Pjroperty acquired by the estate or by the debtor after the commencement of the case is not subject to any lien resulting from a security agreement entered into by the debtor before the commencement of the case.” 11 U.S.C. § 552(a). Section 552(b), however, states the lone exception to the general rule of subsection (a): Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds, product, offspring, rents, or profits of such property, then such security interest extends to such proceeds, product, offspring, rents, or profits acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise. 11 U.S.C. §" }, { "docid": "6105923", "title": "", "text": "whether or not such interest or lien is made fully effective by statute. The legislative comments to section 101(53) provide “[a] statutory lien is only one that arises automatically, and is not based on an agreement to give a lien or on a judicial action.” S.Rep. No. 95-989, 95th Cong., 2nd Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 6271. 11 U.S.C. section 101(51), on the other hand, defines a “security interest” as a “lien created by an agreement,” and 11 U.S.C. section 101(50) defines a “security agreement” as an “agreement that creates or provides for a security interest.” Collier distinguishes statutory liens and security interests by noting: [I]f the lien arises by force of statute, without any prior consent between the parties, it will be deemed a statutory lien.... If the creation of the lien is dependent upon an agreement, it is a security interest even though there is a statute which may govern many aspects of the lien. 2 Collier, para. 101.53, at 101-150-51. The difference between statutory liens and security interests is sometimes obscure. Security interests “commonly find authorization and clarification in existing state statutes _” Seel v. Topeka Lumber Co. (In re Seel), 22 B.R. 692, 695 (Bankr.D.Kan.1982) (quoting 2 Norton Bankruptcy Law and Practice § 31.01, at 2-3 (1981)). Meanwhile, statutory liens most commonly arise only if a contract exists between the debtor and the lien claimant; mechanic’s liens on real estate are a primary example. In distinguishing between the two, the focus is on the presence of a contract provision granting a property interest to the claimant and on the extent to which that contract provision is a necessary condition precedent for the existence of the lien. If such contractual grant is a necessary precondition, the lien is not a statutory lien even though state statutes define the scope and quality of the property interest in detailed terms. Id. Thus, the “distinguishing feature of a statutory lien is that it arises ‘solely by force of a statute.” Id. The interest at hand meets the criteria for a statutory lien. California Government Code section 53852 authorizes" }, { "docid": "21611238", "title": "", "text": "the trustee may avoid the fixing of a statutory lien, appellees do not assert that any of them are applicable. Instead, appellees vigorously argue that CTI’s filing of a notice of lien does not qualify as “the fixing of a statutory lien.” The Bankruptcy Code defines a statutory lien as a lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or hen is made fully effective by statute. 11 U.S.C. § 101(53). In contrast, the Code defines a security interest as a “hen created by an agreement,” 11 U.S.C. § 101(51), and a judicial hen as a “hen obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding,” 11 U.S.C. § 101(36). The Code thus contemplates that hens created consensuahy (such as mortgage hens or UCC security interests) or by judicial action (such as judgment hens, attachments, equitable hens or levies) are not “statutory hens,” while hens that come into being as a result of statutory operation, without consent or judicial action, are “statutory hens.” Given this scheme, we beheve that mechanic’s hens qualify as statutory hens. The legislative history to § 101(53) confirms this conclusion. It states that a statutory hen is “one that arises automatically, and is not based on an agreement to give a hen or on judicial action. Mechanics’, material-men’s, and warehousemen’s hens are examples.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 314 (1978); S.Rep. No. 989, 95th Cong., 2d Sess. 27 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5813, 6271. Our decision is in accord with other courts that have addressed this issue. In In re Severson Acres Development Corp., 142 B.R. 59 (Bankr.N.D.N.Y.1992), the court rejected a trustee’s argument that a post-petition filing of a mechanic’s hen in accordance with New York Lien Law constituted a preferential transfer: Section 547(c)(6) provides ... that a trustee may not" }, { "docid": "3826301", "title": "", "text": "or performance of an obligation.” 11 U.S.C. § 101(37). There are three types of liens recognized by the Code: (1) statutory liens; (2) security interests; and (3) judicial liens. These three categories are mutually exclusive and exhaustive, except for certain common law liens. Midlantic National Bank v. DeSeno, 17 F.3d 642, 645 (3d Cir.1994) (citing S.Rep. No. 95-989 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5811). Only judicial Hens and security interests are relevant to this case. A judicial lien is a “lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” 11 U.S.C. § 101(36). A “security interest,” on the other hand, is “a lien created by an agreement.” 11 U.S.C. § 101(51). Accordingly, judicial liens are created by judicial action while security interests are created by consent of the parties. Klein v. Civale & Trovato, 29 F.3d 88, 94 (2d Cir.1994). Congress intended that all liens created by agreement (sometimes called “consensual liens”) be defined as security interests. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. at 314 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. at 26 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5813, 6271; In re Dunn, 109 B.R. 865, 867 (Bankr.N.D.Ind. 1988) (“security interest” should be construed liberally to include all liens created by agreement). As evidenced by statutory definition, a judicial lien is distinguished from a security interest based upon the method by which the lien is created, and not based upon the method by which it is enforced. Wicks v. Wicks, 26 B.R. 769, 771 (Bankr.D.Minn.1982). Thus, a lien created by an agreement between the parties remains a security interest “regardless of the method or means employed to make [the lien] enforceable either between the parties or against the world.” Dunn, 109 B.R. at 871 (quoting Wicks, 26 B.R. at 771). In determining whether the lien at issue here is in reality a judicial lien or a security interest, the court must focus on the method by which the lien was created, not the means by which Naqvi sought to enforce it. In re Haynes, 157 B.R. 646 (Bankr.S.D.Ind.1992) (“The key" }, { "docid": "18641682", "title": "", "text": "the amended Frazier-Lemke Act, the deduction of the costs of harvesting a crop from the gross proceeds of the crop’s sale while the crop was subject to a chattel mortgage. Although the question of the due process rights of the chattel mortgagee was not directly at issue, the Court cited Vinton Branch as authority for its decision and gave no indication that the creditor, secured by chattels, had fewer rights than or different rights from the creditor secured by realty. Further, as stated in Rodrock and Knezel at page 632: Any lien is a matter of property and not a mere matter of procedure, (cites omitted) Moreover, for constitutional purposes, it makes no difference whether liens are on personal property or real property, (cites omitted) Finally, Section 522 allows the Debtors to avoid the fixing of a lien. “Lien” is defined by the Code to mean a “[C]harge against or interest in property to secure payment of a debt or performance of an obligation.” 11 U.S.C. § 101(28). This definition of lien includes security interests. H.R. No. 95-595, 95th Cong. 1st Sess. (1977), p. 312 and S.Rep. No. 95-989, 95th Cong. 2d Sess. (1978), p. 25. As defined in the Code, “security interest” is similar to that same term in the Colorado Uniform Commercial Code and includes all U.C.C. security interests. 11 U.S.C. § 101(37), C.R.S.1973,4-1-201(37), as amended, H.R. No. 95-595, 95th Cong. 1st Sess. (1977), p. 314, U.S.Code Cong. & Admin.News 1978, p. 5787 and S.Rep. No. 95-989, 95th Cong., 2d Sess. (1978), p. 26, U.S.Code Cong. & Admin.News 1978, p. 5787. However, the term as used in the Bankruptcy Code is broader in that it includes real property mortgages. Id. Hence, the Code itself equates a security interest in personal property with a security interest in real property. Not all retroactive statutes are unconstitutional. Case law discloses that the Supreme Court balances considerations to determine whether the retroactive application of a statute is unreasonable and denies due process of law. Under Colorado law, the Creditors’ liens give them rights in specific property of the Debtors. That property is" }, { "docid": "6239069", "title": "", "text": "the debtor that is not an allowed secured claim, such lien is void.” .Section 363(a) limits “cash collateral” to “cash, negotiable instruments, documents of title, securities, deposit accounts or other cash equivalents.” The legislative history reflects that other types of transitory property were deliberately omitted from the definition. As originally proposed by the House, § 363 dealt with \"soft collateral\" rather than “cash collateral,” and § 363(a) defined \"soft collateral” as “inventory, accounts, contract rights, general intangibles, cash, negotiable instruments, documents of title, securities, or chattel paper in which the estate and an entity other than the estate have an interest.” House Report No. 95-595; 95th Cong., 1st Sess. 344-45, reprinted in 1978 U.S. Code Cong. & Ad.News 5787, 5963, 6301. The Senate proposed the present language of § 363, and the House concurred \"to remove limitations that were placed on the use, lease, or sale of inventory, accounts, contract rights, general intangibles, and chattel paper by the trustee or debtor in possession.” H.R. 8200, 95th Cong. 2d Sess., 124 Cong.Rec. 32,396 (1978). . Section 363(e) provides, in pertinent part: Notwithstanding any other provision of this section, at any time, on request of an entity that has an interest in property used ... or proposed to be used ... by the trustee, the court, with or without a hearing, shall prohibit or condition such use ... as is necessary to provide adequate protection of such interest. . Section 552(b) provides, in relevant part: [I]f the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds ... of such property, then such security interest extends to such proceeds ... acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law. Although \"proceeds” is not defined by the Bankruptcy Code, its ordinary meaning — and the definition employed in the U.C.C., noted at p. 4 above — would require" }, { "docid": "20920879", "title": "", "text": "for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute .... . Common law liens are not specifically defined by the Code. Some examples include artisan and attorney retaining liens. See Matter of Matassini, 90 B.R. 508, 509 (Bkrtcy.M.D.Fla.1988). Common law liens are not relevant here. .The Resolution provides: \"As security for the payment of the principal of and interest on the Notes the County hereby pledges and grants a first lien and charge against [certain unrestricted revenues].... ” The Contract provides: \"[T]he underwriter hereby agrees to purchase ... and the County hereby agrees to sell ... $169,000,000 in ... 1994-95 Tax and Revenue Anticipation Notes, Series A.... The. Notes shall be issued and secured pursuant to the provisions of the resolution of the County.” . The three primary documents related to the consummation of the transaction were the Resolution, the Contract and the TRANS. . The Senate Report on the Bankruptcy Reform Act of 1978 provides: A Security Interest ... is a lien created by an agreement. Security Agreement is defined as the agreement creating the security interest. Though these terms are similar to the same terms in the Uniform Commercial Code, article IX, they are broader.... All U.C.C. security interests and security agreements are, howev er, security interests and security agreements under this definition. S.Rep. No. 989, 95th Cong., 2d Sess. 26 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5812. . Movants cite Badger Mountain Irrigation Dist. Secured Bondholders’ Comm. v. Badger Mountain Irrigation Dist. (In re Badger Mountain Irrigation Dist.), 885 F.2d 606 (9th Cir.1989), for the proposition that the Ninth Circuit has already held that this type of lien is a statutory lien. In Badger Mountain, a case that did not involve § 552(a), the Ninth Circuit merely noted its agreement with the bankruptcy court's undisputed conclusion that the lien asserted by the bondholders was a statutory lien. Id. at 608 n." }, { "docid": "3826300", "title": "", "text": "Naqvi’s $125,000 lien. Fisher sought to avoid that lien by invoking the avoidance mechanism of 11 U.S.C. § 522(f), which provides: Notwithstanding any waiver of exemptions ... the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is ... a judicial lien.... 11 U.S.C. § 522(f)(1) (emphasis added). Section 522(f)(1) establishes several conditions necessary to lien avoidance. Primary among those conditions, for purposes of this case, is that the debtor may not avoid a lien under section 522(f) unless that lien is a judicial lien. 11 U.S.C. § 522(f); see also Boyd v. Robinson, 741 F.2d 1112 (8th Cir.1984); In re Lowell, 20 B.R. 464, 466 (Bankr.D.Mass.1982). “Judicial liens” are specifically defined by the Code, and are to be distinguished from other types of liens. A “lien,” generally, is a “charge against or interest in property to secure payment of a debt or performance of an obligation.” 11 U.S.C. § 101(37). There are three types of liens recognized by the Code: (1) statutory liens; (2) security interests; and (3) judicial liens. These three categories are mutually exclusive and exhaustive, except for certain common law liens. Midlantic National Bank v. DeSeno, 17 F.3d 642, 645 (3d Cir.1994) (citing S.Rep. No. 95-989 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5811). Only judicial Hens and security interests are relevant to this case. A judicial lien is a “lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” 11 U.S.C. § 101(36). A “security interest,” on the other hand, is “a lien created by an agreement.” 11 U.S.C. § 101(51). Accordingly, judicial liens are created by judicial action while security interests are created by consent of the parties. Klein v. Civale & Trovato, 29 F.3d 88, 94 (2d Cir.1994). Congress intended that all liens created by agreement (sometimes called “consensual liens”) be defined as security interests. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. at 314 (1977); S.Rep. No." }, { "docid": "1996904", "title": "", "text": "or performance of an obligation,” 11 U.S.C. § 101(33). A “statutory lien” means a “lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute, and whether or not such interest or lien is made fully effective by statute;” 11 U.S.C. § 101(47). A “security interest” means a “lien created by an agreement”. 11 U.S.C. § 101(45). See also, “Agreement” defined at § 101(44). As noted in the House and Senate Reports as to the definition of “liens”, the concept of lien is divided into three kinds of liens; judicial liens, security interests, and statutory liens. Those three categories are mutually exclusive, and are exhaustive, except for certain common law liens. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 312 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 25 (1978), (emphasis supplied), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5811, 6269. Reprinted in Norton Bankruptcy Law and Practice and Related Legislation, Legislative History, and Editorial Commentary, 1987-1988, Edition. P. 38. Also, the Senate and House Reports as to the definition of a “statutory lien”, state that the definition of a statutory lien excludes judicial liens whether or not they are provided for, or are dependent on a statute, and whether or not they are made fully effective by statute. The Reports further note that a statutory lien is only one that arises automatically, and is not based on an agreement to give a lien or on judicial action. (Emphasis added). Mechanics, materialmen’s, warehousemen’s and tax liens are given as examples of statutory liens. H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 314 (1977); S.Rep. No. 95-989, 95th Cong. 2nd Sess. 27 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5813, 6271. Id. at 48. (Emphasis added). The House and Senate Reports as to the definition of “security agreement” states that it is a lien “created by an agreement”, and that although the term is similar to" }, { "docid": "20920861", "title": "", "text": "552(a) should be viewed broadly, given the goal of facilitating a fresh start for the debtor. See generally Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934); In re Transp. Design & Technology Inc., 48 B.R. 635, 640 (Bankr.S.D.Cal.1985). Accordingly, § 552(a) applies to all security agreements in Chapter 9, including those between municipalities and revenue bondholders. Prior to 1988, when a municipality filed Chapter 9, a risk existed that § 552(a) could strip revenue bondholders of their liens on post-petition property of the debtor. Code § 928 was enacted to remedy this problem by making § 552(a) inapplicable to revenue bonds. Section 928 was narrowly crafted to apply only to special revenue bonds. Congress could have made § 928 applicable to all municipal bonds, but it chose to limit its application. Section 552(a) is, therefore, still applicable to general revenue bonds like the TRANS. Because § 552(a) by its terms applies only to a security agreement that creates a security interest, the next question is whether the Movants’ lien is a security interest created by a security agreement. A security agreement is an agreement that creates or provides for a security interest. Code § 101(50). A security interest is a hen created by an agreement. Code § 101(51). Section 552(a), therefore, only applies to hens created by a security agreement and not to other types of hens. In general, the three types of hens are security interests, judicial hens and statutory hens. H.R. 595, 95th Cong., 1st Sess. 312 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 25 (1978). These hens are mutually exclusive and are exhaustive except for certain common law hens. The Supreme Court has divided these liens into two categories, voluntary (consensual) and involuntary (non-consensual). United States v. Ron Pair Enterprises, 489 U.S. 235, 240, 109 S.Ct. 1026, 1029-30, 103 L.Ed.2d 290 (1989). Consensual liens are created by an agreement between the debtor and creditor. In contrast, “involuntary liens, such as ... judicial or statutory hens ... are fixed by operation of law and do not require the" }, { "docid": "13623726", "title": "", "text": "(Va.1886); Gibert v. Washington City, Virginia Midland and Great Southern R.R. Co., 74 Va. 645, 648 (Va.1881). However, as the district court properly noted, the enforceability of an interest is an issue distinct from the issue whether a security interest exists under § 552(b). The failure of a secured party to perform enforcement procedures prior to bankruptcy merely renders an interest inchoate, not nullified. Under Virginia law, the rent assignment clauses in this case create at least an inchoate interest of the Banks in the rents. An agreement that creates an inchoate lien on rents creates a “security interest” under the Bankruptcy Code. A “security interest” is defined in the Bankruptcy Code as simply a “lien created by an agreement.” Id. § 101(51). “Lien,” in turn, is broadly defined as a “charge against or interest in property to secure payment of a debt or performance of an obligation.” Id. § 101(37). This definition includes inchoate liens. See S.Rep. 95-989, U.S.Code Cong. & Admin.News 1978, p. 5787, reprinted following 11 U.S.C. § 101 (“The definition is new and is very broad_ It includes inchoate liens.”). The inchoate security interests created by the rent assignment clauses in the Deeds of Trust under Virginia law are security interests under section 552(b). In sum, the rents are “rents ... subject to a security interest as provided in section 552(b).” 11 U.S.C. § 363(a). The Banks, each one “an entity other than the estate,” id., have an interest in the rents under state law and continued through bankruptcy by force of section 552(b). The rents satisfy all the conditions of “cash collateral” set forth in section 363(a). The rents thus were cash collateral from the time of the commencement of the bankruptcy case. An inquiry into the present enforceability of a security interest is not relevant to whether that interest exists as an initial matter. As one bankruptcy court put it: An enforceable interest regarding an assignment of rents arises in favor of the assignee upon the creation of the security interest. The right to actual enforcement, however, is subject to the occurrence of statutory" }, { "docid": "10191869", "title": "", "text": "in cash collateral is entitled to adequate protection of that interest. Id. at § 363(e). Therefore, if the rents received by SeSide are not considered cash collateral, SeSide, as the debtor in possession, may use the rents in the ordinary course of maintaining its business. On the other hand, if the rents are considered cash collateral, SeSide may not use the rent money unless Streiker consents to the expenditure or the Bankruptcy Court orders otherwise. The starting point in the analysis of whether the rents received by SeSide are cash collateral is § 363(a) of the Bankruptcy Code: • • • “[CJash collateral” means cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest and includes the ... rents ... of property subject to a security interest as provided in section 552(b) of this title, whether existing before or after the commencement of a case under this title. 11 U.S.C. § 363(a) (emphasis added). Under this section, rents received from mortgaged property, either before or after a bankruptcy filing, would be cash collateral to the extent they are subject to a lien under § 552(b). See S.Rep. 95-989, 95th Cong., 2nd Sess., 1978 U.S.C.A.A.N. 5787, 5841, reprinted following, 11 U.S.C. § 363. Section 363, therefore, directs that this Court examine § 552(b) of the Bankruptcy Code which provides: Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to ... rents, ... of such property, then such security interest extends to such ... rents ... acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court, after notice and a hearing and based on the" }, { "docid": "10191870", "title": "", "text": "section, rents received from mortgaged property, either before or after a bankruptcy filing, would be cash collateral to the extent they are subject to a lien under § 552(b). See S.Rep. 95-989, 95th Cong., 2nd Sess., 1978 U.S.C.A.A.N. 5787, 5841, reprinted following, 11 U.S.C. § 363. Section 363, therefore, directs that this Court examine § 552(b) of the Bankruptcy Code which provides: Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to ... rents, ... of such property, then such security interest extends to such ... rents ... acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise. Id. at 552(b) (emphasis added). A “security interest” is defined under the Bankruptcy Code as a “lien created by an agreement.” 11 U.S.C. at § 101(51). A “security agreement” is an “agreement that creates or provides for a security interest.” Id. at § 101(50). “Lien” is broadly defined as a “charge against or interest in property to secure payment of a debt or performance of an obligation.” Id. at § 101(37). Neither party has argued that the underlying mortgage held by Streiker is invalid. The question is whether the properly recorded rent assignment extends to Streiker a security interest. By operation of § 552(b), it is necessary to examine Pennsylvania law as the “applicable nonbankruptcy law” to determine whether Streiker had a security interest in the rents by virtue of the rent assignment. See Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). Thus, if under Pennsylvania law, Streiker held a pre-petition interest in the rents to secure the payment of a debt, defined" }, { "docid": "20920862", "title": "", "text": "the Movants’ lien is a security interest created by a security agreement. A security agreement is an agreement that creates or provides for a security interest. Code § 101(50). A security interest is a hen created by an agreement. Code § 101(51). Section 552(a), therefore, only applies to hens created by a security agreement and not to other types of hens. In general, the three types of hens are security interests, judicial hens and statutory hens. H.R. 595, 95th Cong., 1st Sess. 312 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 25 (1978). These hens are mutually exclusive and are exhaustive except for certain common law hens. The Supreme Court has divided these liens into two categories, voluntary (consensual) and involuntary (non-consensual). United States v. Ron Pair Enterprises, 489 U.S. 235, 240, 109 S.Ct. 1026, 1029-30, 103 L.Ed.2d 290 (1989). Consensual liens are created by an agreement between the debtor and creditor. In contrast, “involuntary liens, such as ... judicial or statutory hens ... are fixed by operation of law and do not require the consent of the debtor.” Id.; see also, Klein v. Civale & Trovato, Inc. (In re Lionel Corp.), 29 F.3d 88, 94 (2d Cir.1994) (stating that hens created without consent are statutory hens). The fundamental difference, therefore, between a security interest and a statutory hen is the consent of the debtor to the granting of the hen. The County issued the TRANS based on the authority granted to it under Government Code § 53852, which provides that “[A] local agency may borrow money pursuant to this article, such indebtedness to be represented by a note or notes_” The Mov-ants’ hen was granted pursuant to Government Code § 53856. Section 53856 states that “any taxes ... may be pledged to the payment ... of the notes_ The resolution authorizing the issuance of the note or notes shah specify what taxes ... are pledged for the payment thereof.” Taken together, these enabling provisions authorized the County to issue the TRANS and secure their payment by pledging certain revenues. The County had the choice to pledge its revenue stream" } ]

[ { "docid": "22572727", "title": "", "text": "of pleading, whenever it has been found necessary to. do so for the purposes of justice. And in a case like the present, the most liberal principles of practice, and pleading ought unquestionably to be adopted, in order to enable both parties to present their respective claims in their full strength. According to the rules of pleading in the Chancery Court, if the plea is unexceptionable in its form and character, the complainant must either set it down for árgument, or he must reply to it, and put in issue the facts relied on in .the plea. If he elects to proceed in the manner first mentioned, and sets down'the plea for argument, he then admit; 'he truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent his recovery. If, on the other hand, he replies to'the plea, and denies the truth of the facts therein stated, he'then adhiils that if the. particular facts, stated in the plea are true, they are then sufficient in law to bar his, recovery: and if they are proved to be true, the bill must be dismissed, without reference to the equity arising from any other facts stated, in the bill. 6 Wheat. 472. Undoubtedly, if a plea upon argument is .ruled to be sufficient in law to bar the recovery of the complainant, the Court of Chancery would, according to its uniform practice, allow him to amend; and to put in issue, by a proper replication', the truth of the facts stated in'the plea. But in either case, the controversy would turn altogether upon the facts stated in the plea-, if the plea is permitted to stand. ., It is the strict and technical character of these rules of pleading, and the danger of injustice often arising from them, which has given rise to the equitable discretion always exercised by the Court of Chancery in relation to pleas. In many cases, where they are not overruled, the Court will not per-ii\\c them to have the full effect of a' plea; and will in" } ]

[ { "docid": "7637573", "title": "", "text": "convinced that the testimony is not of that clear and convincing character required to overthrow the presumption of validity arising from the patent itself. The burden is upon the defendants to satisfy the court beyond a reasonable doubt that the defense of prior knowledge and use has been established. Coffin v. Ogden, 18 Wall. 120; Howe v. Underwood, 1 Fisher, 160; Shirley v. Sanderson, 8 Fed. Rep. 905; Green v. French, 11 Fed. Rep. 591; Walk. Pat. § 76. Tested by this rule the testimony of the defendants is wholly inadequate. It is too general, vague, and indefinite. Every fact and circumstance which might tend to raise a doubt as to the validity of the patent, and which is sufficiently explicit to admit of contradiction, is fully explained and answered by the complainant’s evidence in rebuttal. Bearing in mind the rule with reference to design patents, that it is enough if the resemblance is such as to deceive the ordinary observer, (Gorham Co. v. White, 34 Wall. 511,) there can be no question that the pendants, marked “Exhibit A,” are infringements of complainant’s patent. The difficulty upon this branch of the case is with the proof by which it is sought to connect the defendants with the infringing pendants. Though this evidence is not of the most convincing character, it was unquestionably sufficient to put the defendants upon their proof, and, as they have failed to deny the infringement after testimony was adduced which pointed to them with great directness as the wrong-doers, it is clearly the duty of the court to find against them on this issue. There should be a decree for the complainant." }, { "docid": "13609784", "title": "", "text": "WOODRUFF, Circuit Judge. The single question presented by the pleadings in this suit, as now brought before us, is, whether the facts alleged by the Sutherland Falls Marble Company in their plea, are proved. The complainant has thought proper, by replying to the plea, to put its averments in issue. The rule is elementary, and is well settled, that, when a complainant in equity, instead of setting down the defendant’s plea for argument, to test its sufficiency, elects to reply thereto, denying the facts alleged, he admits its sufficiency, both in form and substance, as a defence to all the matter of the bill to which it is pleaded, and that, if the facts shall, upon the proofs taken, be found established, the bill must be dismissed (Story, Eq. PI. § C97; Gallagher v. Roberts [Case No. 5,194]; Hughes v. Blake, 6 Wheat. [19 U. S.] 453; Rhode Island v. Massachusetts, 14 Pet [39 U. S.] 210, 257); and this must be done without-reference to any equity arising from other facts stated in the bill. There is no occasion to discuss the evidence. The proofs taken to sustain the allegations of the plea are uncontradicted by any evidence produced on the part of the complainant. Indeed, we do not understand the counsel for the complainant to claim that those facts are not established. The plea is to the jurisdiction of the court over the defendant corporation. By replying, the complainant admits the sufficiency of the facts alleged, to support the plea. The allegations of the plea are proved, that is to say, it is proved that the corporation was not organized for the sole purpose of quarrying marble in Vermont, and has property without that state; and that it has never had or adopted or acted under any charter granted by the legislature of that state, and is not a citizen of that state, but, on the contrary, is a corporation organized and established within and by the laws of the state of Massachusetts only. It is quite too late to insist that the residence or citizenship of a director" }, { "docid": "22856025", "title": "", "text": "issue thus joined. The pleader and the court below appear to have proceeded upon th'e theory that by a plea in equity a defendant may aver certain facts in addition to or contradiction of those alleged in the bill; and also not only, if he proves his averments; avail himself of objections in matter of law -to the case stated in the bill, -as modified by the facts proved; but even, , if he fails to prove those facts, take any objection to the case stated in the bill, which would have been open to him if he had demurred generally for want of equity. But the proper office of a plea is not, like an answer, to meet all the allegations of the bill; nor like a demurrer, admitting those allegations, to deny the equity of the bill; but it is to present some distinct fact, which of itself creates a bar to the suit, or to the part to which the plea applies, and thus to avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large. Mitford Pl. (4th ed.) 14, 219, 295; Story Eq. Pl. §§ 649, 652. The plaintiff may either set down the plea for argument, or file a replication to it. If he sets down the plea for argument, he thereby admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent his recovery. If, on the other hand, he replies to the plea, joining issue upon the facts averred in it, and so puts the defendant to the trouble and expense of proving his plea, he thereby, according to the English chancery practice, admits that if the particular facts stated in the plea ai’e true, they are sufficient in law to bar his recovery; and if they are proved to be true, the bill .must be dismissed, without reference to the equity arising from any other facts stated in the bill. Mitford Pl 302, 303; Story Eq. Pl. § 697. That practice in" }, { "docid": "8020443", "title": "", "text": "its right to relief upon other numerals of its order system. To the present bill a plea of res judicata was sustained, but on appeal this was held error for the reasons stated in Dennison Manufacturing Company v. Seharf Tag, Label & Box Company, 121 Fed. 313, 57 C. C. A. 9. The single point in judgment determined by the Court of Appeals was the •sufficiency of the plea of res judicata. It held that the estoppel of the judg ment on demurrer to the first bill “extended only to the exact point raised, by the pleadings as described, i. e„ the use of the identical numerals complained of in the first suit, and that the plea went to the whole bill and all relief under it. It is therefore too broad, and the court erred in sustaining it.” Complainant submits some additional authorities to those presented on the first demurrer, and these may be briefly considered. Complainant’s first contention is: “(1) The numbers constitute valid trademarks. The allegations in regard to the numerals involved are in part that they were arbitrarily selected to indicate origin, that they have been continuously used for many years as trade-marks, and that as trade-marks they have been known, respected, and availed of by the trade and the public. The mere fact that the marks in question consist of numerals will hardly be used as justifying their appropriation by the defendant.” To this proposition Gillott v. Esterbrook, 48 N. Y. 375, 8 Am. Rep. 553 ; Lawrence Co. v. Lowell Mills, 129 Mass. 325, 37 Am. Rep. 362; and other cases were cited. Again, * * * the bill alleges “that such number has continuously and always, in addition to giving notice of and indicating origin of the label as being of your orator’s manufacture, given notice of and indicated the-color of border, size, and shape of the label.” This, being admitted by the-demurrer, it is claimed is decisive of complainant’s right to the relief prayed. I cannot yield to the contention that the numerals alone constitute a trademark. It is well settled that" }, { "docid": "15319908", "title": "", "text": "accordance with .these two decisions it is settled that every applicant in either class of cases who may be dissatisfied with the decision of the commissioner is obliged to pursue his remedy in the court of the District of Columbia. If he is successful there, he will have no occasion to invoke the remedy by bill in equity in a Circuit Court, but, if the Court of Appeals decides against him, he is then entitled to bring his action in the appropriate circuit under section 49x5. It seems to me that there is no difficulty about this construction, and that the very capable argument of the defendants’ counsel to the effect that the act of 1893 has repealed section 4915 so far as to take away the remedy in equity in cases of interference cannot be allowed to prevail. The point has been expressly decided against the repeal in Bernardin v. Northall (C. C.) 77 Fed. 852, and I shall not attempt to add anything to Judge Baker’s satisfactory opinion in that case. I see no irreconcilable conflict between the two statutes, and, indeed, upon the construction suggested there is not even an apparent conflict. The facts of the present controversy are briefly these: Air interference was declared in the Patent Office between the complainant and two other persons, who afterwards assigned their interest to the Metal Volatilization Company; and this dispute was decided against the complainant by the’ acting examiner in charge of interferences by the board of examiners in chief, by the Commissioner of Patents, and by the Court of Appeals for the District of Columbia. No further step has been taken by the Patent Office, and the remaining question raised by the plea is whether this court has any jurisdiction of the pending bill ir. view of the fact that the complainant’s application has not yet been formally refused, and that a patent has not yet been actually granted to the defendant company. The complainant’s position is that the proceedings thus far taken are, in effect, a refusal of the patent, and it seems to me that" }, { "docid": "9973739", "title": "", "text": "by the circuit court of appeals of this circuit, and the facts are in many resjiects similar to the facts in this case. The debts of the complainants are not disputed, but are admitted in the pleadings, but are claimed to be simple contract debts. The demurrer will be over ruled. To the plea filed in this cause there is no replication, and in such case all the facts well pleaded are considered as admitted. See rule 33, Equity Rules, and notes thereto; Desty, Fed. Proc. 696; rule 38, Equity Rules and notes thereto; Desty, Fed. Proc. 698; Fost. Fed. Prac. (2d Ed.) p. 270, § 157; Rhode Island v. Massachusetts, 14 Pet. 210. The plea shows that at the time this suit was instituted there was pending in the circuit court of Washington county, Va., a chancery suit instituted on the 25th day of January, 1891, by the trustees in the deed of trust of August 5, 1893, against the Rank of Abing-don and all of its stockholders and creditors, including the complainants, for the purpose of administering the assets of said bank, under the direction and with the aid of said state court. It shows that the state circuit court of Washington county, Ya., is a court of concurrent jurisdiction with this court, and that said suit is still pending therein; that, by the institution of that suit, the issuance and execution of process, the jurisdiction of the state court had attached to the parties and to the subject-matter of that suit; and that this court is without jurisdiction as to the matters involved in the stare court, because of the prior existence of a suit in the state court involving the same matters. The question, raised by the plea is one that has been so often determined by the courts, federal and state, that we should have no difficulty in deciding it in the present case. In Taylor v. Taintor, 16 Wall. 370, the supreme court, speaking by Justice Hwayne, said: “Where a state court and a court of the United States may each take jurisdiction, the" }, { "docid": "23326415", "title": "", "text": "the benefit of his warrants. The act of congress having'conferred on the defendant, Finley, the legal title, equity will not take fro.m him his legal advantage. 1 Wheat. 196; 2 Story’s Eq. 88; Sagden on Vendors, 365, 375, 7th ed. If Finley.has the title, and' can perform the contract on the 1st day of January, 1839, when the last payment falls due, this' is all the law can require of'him. Yet' it is an established rule in equity, that where the vendor has not the power to make title, the vendee may, before the time of performance,enjoin the payment of the purchase money, imtil the ability to comply with the agreement for title is shown; Royer v. Patton, 1 Ten. Rep. 258: Ralston v. Miller, 3 Randolph’s Va. Rep. 44; but then the court will- give a reasonable time to procúre, the title, if it appears probable, on reference, that it may be. procured. Frost v. Bronson, 6 Yerger’s Rep. 36, 40. By an amendment to his bill in October, 1836, the complainant sets forth his entries of 1835, and the surveys thereof, and again prays a rescission of the contract of March; 1835: “or, that if the defendants at the date of the contract, had a good'and perfect title to the premises they contracted to convey, and authority to perfect their agreement; then the complainant is ready, and tenders a com-, pletion of the contract.” The only allegation in the amended bill, varying the case is, that at the time the agreement was entered into, complainant was ignorant that the patents for thé lands had been made in the name of a person that was dead. The respondents admit the fact: but state that complainant derived his first knowledge of its existence from a sight of Charles Bradford’s will, after he made the agreement. It seems respondents were.at that time equally igt rant, not knowing, or having overlooked the dates of the entries and patents. If complainant had not 'entered the lands, then he would have been entitled to a rescission of the contract; had no title been acquired" }, { "docid": "7452380", "title": "", "text": "MORRIS, District Judge. The plea avers that from the date of (he patent, July 15, 1890, to the date of making the parol license set up as a defense, to wit, April 27,1892, the defendant did not infringe; and that on April 27, 1892, Christian Jaeger, the then owner of the patent, for a good and sufficient consideration did grant a parol license to the defendants for three years to use the patent for a royalty of 50 cents for each dozen of the patented articles; and that since tire granting of the license to them the defendants have not used the invention otherwise than as authorized by the license. The first objection urged to tlie defendants’ plea is tbat as to a portion of the period of the alleged infringement, to wit, from the date of the patent to April 27, 1892, the plea simply denies the fact of infringement'. Such denial is proper only by answer, and is not proper by plea; but in this case the point seems immaterial, as by the complainant's title it appears that he is not entitled to sue for infringements prior to April 27,1892. On that date the complainant acquired title from Christian Jaeger by an assignment which conveyed “all the right, title, and interest which Jaeger had in the said invention as secured to him by his letters patent and by the assign ments thereof.” This language is appropriate to the simple assignment of a patent right, and its meaning is satisfied by the transfer of the invention without transferring any right of action for past infringements. The rule is that to pass the right to sue for past infringement words must be used in the assignment which expressly transfer to the assignee the right of action. Moore v. Marsh, 7 Wall. 515; Emerson v. Hubbard, 34 Fed. Rep. 327; Walk. Pat. § 277; 2 Rob. Pat. §§ 781, 942. As the complainant’s title discloses that he cannot maintain a suit for infringement prior to April 27, 1892, the first clause of the plea is not material. It is objected to" }, { "docid": "10025315", "title": "", "text": "them with satisfactory amendments. It is not necessary to examine those patents with any purpose either of defining the prior art or of otherwise justifying the action of the Patent Office. It is sufficient that Campbell acquiesced in the rulings, instead of taking the prescribed course of ■ appeal. In Safety Oiler Co. v. Scovill (C. C.) 110 Fed. 203, 205, Judge Coxe said: “The contention that the patentee was not called upon by anything in the prior art to limit the claim as stated is wholly immaterial, where there is no escape from the conclusion that he has so limited it. The law in such circumstances is too plain to admit of doubt.” In Brill v. St. Louis Car Co. (C. C. A., 8th Cir.) 90 Fed. 666, 668, 33 C. C. A. 213, 215, Judge Thayer said: “It is immaterial, we think, whether the Patent Office was right or wrong in rejecting the complainant’s original claims on the ground that the invention therein described was anticipated by the prior art. By amending his specification and claims, the complainant admitted, in effect, that some limitations were necessary; and it is now toó late to1'assert that he was entitled to his originál claims, or that the claims as finally allowed are as broad as the original claims.” In American Stove Co. v. Cleveland Foundry Co. (C. C. A., 6th Cir.) 158 Fed. 978, 983, 86 C. C. A. 182, 187, Judge Severens said: “The applicant had a long struggle in securing his patent, and was constrained to trim away, modify, and otherwise define his specifications and claims to meet the references made by the’ office until they were brought within very narrow limits, before his patent would be allowed.- He must be deemed to have surrendered and disclaimed what he conceded, and to-have imposed such definitions upon the language of - thé -patent, ás he attributed to it in order to secure the grant.” In Morgan Envelope Co. v. Albany Paper Co., 152 U. S. 425, 429, 14 Sup. Ct. 627, 629, 38 L. Ed. 500, Mr. Justice Brown stated" }, { "docid": "7637572", "title": "", "text": "Coxe, J. The complainant is the inventor of a new and original design for a pendant, for which letters patent No. 14,356 were issued October 23, 1883. The pendant consists of a ring made of chenille, or other analogous fabric, suspended from a tuft, and a ball suspended in like manner in the center of the ring;'the thickness of the ring increasing from the bottom of the tuft to a point diametrically opposite. The defenses are want of novelty and non-infringement. It is argued in the complainant’s brief that a portion of the testimony relating to prior use and knowledge is inadmissible under the pleadings; the defendants having failed in the answer to comply with the provisions of section 4920, Dev. St., in omitting to state the names and residences of the persons alleged to have invented or to have had prior knowledge of the patented design. The answer is not among the papers submitted, and therefore it is impossible to rule intelligently upon this objection; but a ruling is rendered unnecessary, as I am convinced that the testimony is not of that clear and convincing character required to overthrow the presumption of validity arising from the patent itself. The burden is upon the defendants to satisfy the court beyond a reasonable doubt that the defense of prior knowledge and use has been established. Coffin v. Ogden, 18 Wall. 120; Howe v. Underwood, 1 Fisher, 160; Shirley v. Sanderson, 8 Fed. Rep. 905; Green v. French, 11 Fed. Rep. 591; Walk. Pat. § 76. Tested by this rule the testimony of the defendants is wholly inadequate. It is too general, vague, and indefinite. Every fact and circumstance which might tend to raise a doubt as to the validity of the patent, and which is sufficiently explicit to admit of contradiction, is fully explained and answered by the complainant’s evidence in rebuttal. Bearing in mind the rule with reference to design patents, that it is enough if the resemblance is such as to deceive the ordinary observer, (Gorham Co. v. White, 34 Wall. 511,) there can be no question that the" }, { "docid": "22197464", "title": "", "text": "the rights ordinarily vested in defendants in suits in equity. If the sole purpose were to ascertain by judicial investigation whether the roads were in fact completed as required, that purpose could have been accomplished by making defendants only the original parties, the wrongdoers. If other parties than they were made defendants, as is the fact here, such parties, within the terms of the statute, had the right by plea to set up any special matter which as to them constituted a full defence; and as between such parties and the government, the inquiry, by settled rules of equity, was then limited to such matter. In Farley v. Kittson, 120 U. S. 303, 314, 315, 316, the nature and functions of a plea were fully discussed. It was said: “ But the proper office of a plea is not, like an answer, to meet all the allegations of the bill; nor like a demurrer, admitting those allegations, to deny the equity of the bill; but it is to present some distinct fact, which of itself creates a bar to the suit, or to the part to which the plea applies, and thus to avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large. Mitford Pl. (4th ed.) 14, 219, 295; Story Eq. PI. §§ 649, 652. '“The plaintiff may either set down the plea for argument, or filé a replication to it. If he sets down the plea for argument, he thereby admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent his recovery. If, on the other hand, he replies to the plea, joining issue upon the facts averred in it, and so puts the defendant to the trouble and expense of proving his plea, he thereby, according to the English chancery practice, admits that, if the particular facts stated in the plea are true, they are sufficient in law to bar his recovery; and if they are proved to be true, the bill must be dismissed, without" }, { "docid": "15325396", "title": "", "text": "COXE, Circuit Judge. The bill is in the usual form, alleging the infringement of letters patent No. 516,844, granted to Alfred Swan, March 20, 1.894. The bill was verified October 10, 1902, and was filed December 13, 1902. The defendants filed pleas which were once amended by leave of the court. As amended the pleas, though not in identical language, allege, in substance, that the defendants made and sold the infringing devices until “August, 1902, at which time, because of the disapproval by underwriters and slight profits, said defendant company abandoned the manufacture thereof and thereafter made up only its remaining receptical stock, and since October 10, T902, it has not itself or by any agent made any sale of such ‘receptacle,’ but only completed delivery of ‘receptacles’ sold as aforesaid, and that long before the bringing of this bill for injunction defendant company had wholly and in good faith ceased to make, use or sell itself or by other said ‘receptacles 9,171’ and the invention of said Swan patent; and is not threatening and does not intend, now or at any time in the future, to manufacture or sell said receptacles, but has in good faith finally abandoned such manufacture and sale.” By setting the pleas down for argument the complainant has admitted, the facts but not the conclusions pleaded therein. Farley v. Kittson, 120 U. S. 303, 314, 7 Sup. Ct. 534, 30 L. Ed. 684; Burrell v. Hackley (C. C.) 35 Fed. 833, and cases cited. We have, then, the following facts; First. Subsequent to the granting of the Swan patent and until August, 1902, the defendants were engaged in manufacturing and selling devices which infringed the patent. Second. From August, 1902, until October 10, 1902, they ceased manufacturing new receptacles and only made up the stock then on hand. Third. Since October 10, 1902, they have not made any new sales of infringing receptacles but have completed the delivery of receptacles sold prior thereto. Fourth. Prior to the filing of the bill they liad wholly ceased to make, use or sell the patented device. If the" }, { "docid": "22236425", "title": "", "text": "Wall. 231. From which it follows, if the theory of the complainants is correct that the bond is to be regarded as the joint bond of - the three partners, that they are without remedy against the other two, as they have proceeded to final judgment against the claimant. Neither of the other partners signed the bond but the complainants allege that the firm directed the claimant to give the bond for and in the name and style of their said partnership as obligors; to which it may 'be answered that if the firm gave such. directions the claimant did not follow them, as the bond set forth in the record as an exhibit to the bill of complaint shows that it is the individual bond of tbe alleged senior partner. Nor do the complainants pretend that the other partners ever signed the instrument, but they contend that the demurrer admits every thing whicn they have alleged. Matters of fact well pleaded are ..admitted by a demurrer, but it is equally well settled that mere conclusions of law are not admitted by such a proceeding; Dillon v. Barnard, 21 Wall. 430; Ford v. Peering, 1 Ves. Ch. 71; Lea v. Robeson, 12 Gray (Mass.), 280; Redmond v. Dickerson, 1 Stockt. (N. J.) 507; Murray v. Clarendon, Law Rep. 9 Eq. 17; Nesbitt v. Berridge, 8 Law Times, N. s. 76; Story, Eq. Plead. (7th ed.), sect. 452. Facts well pleaded are admitted by a demurrer; but it does not admit matters of inference or argument, nor does it admit the alleged construction of an instrument when the instrument itself is set forth in the record, in cases where the construction assumed is repugnant to its language. Authorities to that effect are numerous and decisive; nor can it be admitted that a . demurrer can be held to work an admission that parol evidence is admissible to enlarge or contradict a sealed instrument which has become a matter of record in a judicial proceeding. Beck- ham v. Drake, 9 Mee. & W. 78; Humble v. Hunter, 12 Law Rep. Q. B." }, { "docid": "22197465", "title": "", "text": "creates a bar to the suit, or to the part to which the plea applies, and thus to avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large. Mitford Pl. (4th ed.) 14, 219, 295; Story Eq. PI. §§ 649, 652. '“The plaintiff may either set down the plea for argument, or filé a replication to it. If he sets down the plea for argument, he thereby admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent his recovery. If, on the other hand, he replies to the plea, joining issue upon the facts averred in it, and so puts the defendant to the trouble and expense of proving his plea, he thereby, according to the English chancery practice, admits that, if the particular facts stated in the plea are true, they are sufficient in law to bar his recovery; and if they are proved to be true, the bill must be dismissed, without reference to the equity arising fror, any other facts stated in the bill. Mitford Pl. 302, 303; Story Eq. Pl. § 697. That practice in this particular has been twice recognized by this court. Hughes v. Blake, 6 Wheat. 453, 472; Rhode Island v. Massachusetts, 14 Pet. 210, 257.” And again: “In a case so heard, decided by this court in 1808, Chief Justice Marshall said: ‘In this case the merits of the claim cannot be examined. The only questions before this court are upon the sufficiency of the plea to bar the action, and the sufficiency of the testimony to support the plea as pleaded.’ Stead v. Course, 4 Cranch, 403, 413. In a case before the House of Lords a year afterwards,'Lord Kedesdale ‘observed, that a plea was a special answer to a bill, differing in this from an answer in the common form, as it demanded the judgment of the court, in the first instance, whether the special matter urged by it did not debar the plaintiff from his title to that" }, { "docid": "13904719", "title": "", "text": "is notified that his case is 1o be brought before the grand jury, he should proceed at once to take exception to its competency, for if lie lies by until a bill is found, tbe exception may be too late; but where be bas had no opportunity of objecting before bill found, then he may take advantage of the objection by motion to quash or by plea in abatement ; the latter in all cases of contested fact being the proper remedy. United States v. Gale, 109 U. S. 65 [3 Sup. Ct. 1, 27 L. Ed. 857]. Another general rule is that for such irregularities as do not prejudice the defendant he has no cause of complaint and can take no exception. United States v. Richardson [C. C.] 28 Fed. 61; United States v. Reed, 2 Blatchf. 435, 456 [Fed. Gas. No. 16,134]; United States v, Tallman, 10 Blatchf. 21 [Fed. Cas. No. 16,429]; State v. Mellor, 13 R. I. 666; Cox v. People, 80 N. Y. 500; People v. Petrea, 92 N. X. 128.” The Circuit Court of Appeals of the Fifth Circuit had before it the case of Lowdon v. United States, and its opinion is reported in 149 Fed. 673-, 79 C. C. A. 361. The plea in abatement in that case was delayed for 17 days after the accused returned to the state of Texas, from which he was absent when the indictment was returned. The plea, after setting up the grounds relied upon for the abatement sought, contained the general statement that the accused had been \"greatly prejudiced” by what had been done. The court, pursuant to the ruling in the case of Agnew v. United States., held that the plea was insufficient, both because it came too late and because it did not explicitly show how there was any injury to the accused as the result of the things complained of in the plea. We cannot definitely say from the report, especially in the latter case, whether the accused had been held over at any examination had for that purpose before the return" }, { "docid": "7452382", "title": "", "text": "the plea of a license that it is not sufficient in that it alleges “a good and sufficient consideration” without alleging what the consideration was, and that it alleges a license conditioned upon the payment of a royalty, and does not allege that the royalty has been paid, or excuse its nonpayment. I think both these objections to the plea are good. There would seem to be no doubt that a license to use a patent not exclusive of others need not be recorded, and may be by paroh Hamilton v. Kingsbury, 17 Blatchf. 264; Dalzell v. Manufacturing Co., 149 U. S. 315, 13 Sup. Ct. Rep. 886; Brooks v. Byam, 2 Story, 525; Walk. Pat. § 303; Rob. Pa.t. §§ 809, 817; Potter v. Holland, 4 Blatchf. 206. A subsequent assignee takes title to the patent subject to such licenses, of which he must inform himself as best he can at his own risk. Rob. Pat. § 817. But I think the objection that the plea does not state what the actual consideration was, and does not allege that the defendants have paid the royalty, or state any excuse for nonpayment, is well taken. Strictness is required in a plea which sets up oral license made by the assignor of the patent. It is an incumbrance upon the assignee’s title of which he has no record notice, and there are special reasons why the plea should set out the facts with particularity. When the license is dependent upon the payment of a royalty, the facts with regard to the payment should be averred, as, unless the defendant has complied with the terms of his license, his plea does not defeat complainant’s whole remedy. The complainant may still be entitled to an injunction or other relief. 2 Rob. Pat. §§ 782, 822; 1 Daniell, Ch. Pr. 677. In the present case the citizenship of the parties gives this court jurisdiction, independently of the subject-matter; and the ruling in Hartell v. Tilghman, 99 U. S. 547, would not necessarily defeat all relief to complainant. For the reasons stated the plea is" }, { "docid": "22856026", "title": "", "text": "asked for, and the expense of going into the evidence at large. Mitford Pl. (4th ed.) 14, 219, 295; Story Eq. Pl. §§ 649, 652. The plaintiff may either set down the plea for argument, or file a replication to it. If he sets down the plea for argument, he thereby admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent his recovery. If, on the other hand, he replies to the plea, joining issue upon the facts averred in it, and so puts the defendant to the trouble and expense of proving his plea, he thereby, according to the English chancery practice, admits that if the particular facts stated in the plea ai’e true, they are sufficient in law to bar his recovery; and if they are proved to be true, the bill .must be dismissed, without reference to the equity arising from any other facts stated in the bill. Mitford Pl 302, 303; Story Eq. Pl. § 697. That practice in this particular has been twice recognized by this court. Hughes v. Blake, 6 Wheat. 453, 472; Rhode Island v. Massachusetts, 14 Pet. 210, 257. But the case of Rhode Island v. Massachusetts arose within its original jurisdiction in equity, for outlines of the practice in which the court has always looked to the practice of the Court of Chancery in England. Rule 7 of 1791, 1 Cranch; xvii, and 1 How. xxiv; Rule 3 of 1858 and 1884, 21 How. v, and 108 U. S. 574. And the case of Hughes v. Blake, which began in the Circuit Court, was decided here in 1821, before this court, under the authority conferred upon it by Congress, had established the Buies of Practice in Equity in the Courts of the Hnited States, one of which provides that “ if upon an issue the facts stated hn the plea be determined for the defendant, they shall avail him as- far as in law and equity they ought to avail him.” Bule 19 in Equity of 1822, 7 Wheat," }, { "docid": "23582850", "title": "", "text": "covering inventions and discoveries of the kind conveyed absolutely to the complainant by the contract of 1878, Edison and the complainant are practically the same; that in the particular divisional application above referred to Edison uses language which is inconsistent with the claim that in the earlier application (the one for the patent in suit) he used the ambiguous words or phrases in their broad meaning; and, finally, that when the letters to the patent-office are read in connection with the letters to which they are replies, this fact will still more plainly appear. This argument deals, of course, with the materiality of the proposed evidence when produced, and to this motion, which is practically directed to securing its presence in court, the complainant objects that the evidence, if produced, would be immaterial. That question, however, should not be determined upon application to produce the papers. The court should pass upon it with the proposed evidence before it, so that it may act intelligently, and that an exception to its refusal to admit the testimony, should it so refuse, may be of avail to the exceptant upon appeal. If the only objection to admitting these documents in evidence be that they are immaterial, that objection is of no avail in opposition to an application which calls for their production. Without therefore finally determining the question as to the materiality of those documents, it is sufficient to say that, in view of the contract relations between Edison and the company, and of the rule of law as to the admissibility of a party’s admissions, and in view of the effect accorded to such admissions in the case cited by defendant, (Giant-Powder Co. v. California, etc., Co., 4 Fed. Rep. 720,) and, finally, in view of the contents of the documents as disclosed by the moving papers, there is not found in the objection as to the materiality of the evidence sufficient to warrant the refusal of the officers of the corporation to obey the subpoena duces tecum, and to produce the documents, which are conceitedly in the hands of its counsel," }, { "docid": "7452381", "title": "", "text": "complainant's title it appears that he is not entitled to sue for infringements prior to April 27,1892. On that date the complainant acquired title from Christian Jaeger by an assignment which conveyed “all the right, title, and interest which Jaeger had in the said invention as secured to him by his letters patent and by the assign ments thereof.” This language is appropriate to the simple assignment of a patent right, and its meaning is satisfied by the transfer of the invention without transferring any right of action for past infringements. The rule is that to pass the right to sue for past infringement words must be used in the assignment which expressly transfer to the assignee the right of action. Moore v. Marsh, 7 Wall. 515; Emerson v. Hubbard, 34 Fed. Rep. 327; Walk. Pat. § 277; 2 Rob. Pat. §§ 781, 942. As the complainant’s title discloses that he cannot maintain a suit for infringement prior to April 27, 1892, the first clause of the plea is not material. It is objected to the plea of a license that it is not sufficient in that it alleges “a good and sufficient consideration” without alleging what the consideration was, and that it alleges a license conditioned upon the payment of a royalty, and does not allege that the royalty has been paid, or excuse its nonpayment. I think both these objections to the plea are good. There would seem to be no doubt that a license to use a patent not exclusive of others need not be recorded, and may be by paroh Hamilton v. Kingsbury, 17 Blatchf. 264; Dalzell v. Manufacturing Co., 149 U. S. 315, 13 Sup. Ct. Rep. 886; Brooks v. Byam, 2 Story, 525; Walk. Pat. § 303; Rob. Pa.t. §§ 809, 817; Potter v. Holland, 4 Blatchf. 206. A subsequent assignee takes title to the patent subject to such licenses, of which he must inform himself as best he can at his own risk. Rob. Pat. § 817. But I think the objection that the plea does not state what the actual consideration was," }, { "docid": "15325397", "title": "", "text": "does not intend, now or at any time in the future, to manufacture or sell said receptacles, but has in good faith finally abandoned such manufacture and sale.” By setting the pleas down for argument the complainant has admitted, the facts but not the conclusions pleaded therein. Farley v. Kittson, 120 U. S. 303, 314, 7 Sup. Ct. 534, 30 L. Ed. 684; Burrell v. Hackley (C. C.) 35 Fed. 833, and cases cited. We have, then, the following facts; First. Subsequent to the granting of the Swan patent and until August, 1902, the defendants were engaged in manufacturing and selling devices which infringed the patent. Second. From August, 1902, until October 10, 1902, they ceased manufacturing new receptacles and only made up the stock then on hand. Third. Since October 10, 1902, they have not made any new sales of infringing receptacles but have completed the delivery of receptacles sold prior thereto. Fourth. Prior to the filing of the bill they liad wholly ceased to make, use or sell the patented device. If the pleas be analyzed a little closer it will be observed that defendants, in effect, admit infringement prior to August, 1902. In August of that year the)' stopped making new receptacles, but admit that from August until October loth the}' were engaged in making up the stock on hand; They do not deny that they were selling receptacles during this period. After October 10th, the date of the verification of the bill and two months before it was filed, they ceased to sell but continued to deliver infringing receptacles; and for aught that appears have con tinued to deliver and are now delivering said receptacles. The pleas draw a sharp distinction between new sales of the infringing devices and their délivery pursuant to old sales, so that the allegation that defendants ceased, prior to the suit, to make, use or sell the patented device is not at all incompatible with the theory that they have a large stock of infringing devices on hand which they can at any time put on the market. In other words," } ]

[ { "docid": "19358303", "title": "", "text": "debtor with complete relief. Section 362(a) is drafted as a series of paragraphs which are to some extent repetitive but are, in fact, carefully drafted to be as inclusive as possible. Changes in status of the debtor or his assets may result in a cessation of the applicability of one paragraph but with another coming into effect. Paragraph (6) of section 362(a) is very general and applies to “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case.... ” This paragraph will apparently preclude any effort to realize upon a prepetition claim.” Collier Bankruptcy Practice Guide, § 38.02[2], p. 38-9. The issue presented is whether plaintiff’s continuance of the non-judicial foreclosure sale amounted to a violation of the stay imposed by 11 U.S.C. § 862(a)(3), (4) or (5). Plaintiff has cited the only apparent authority on point, Matter of Roach, 660 F.2d 1316 (1981), where the Ninth Circuit Court of Appeals held that the publication of notices of postponement of a non-judicial foreclosure sale did not amount to a violation of the automatic stay. The court stated the reasoning for its decision as follows: The purpose of the automatic stay is to give the debtor a breathing spell from his creditors, to stop all collection efforts, harassment and foreclosure actions. Notes of Committee on the Judiciary, Sen.Rep. No. 989, 95th Cong., 2d Sess. 54, reprinted in [1978] U.S.Code Cong. & Ad. News 5787, 5840. The automatic stay also prevents piecemeal diminution of the debtor’s estate. See Bohack Corp. v. Borden, Inc., 599 F.2d 1160, 1167 (2d Cir. 1979). The automatic stay does not necessarily prevent all activity outside the bankruptcy forum. See David v. Hooker, Ltd., 560 F.2d 412, 417-18 (9th Cir.1977) (automatic stay under old bankruptcy act did not prevent trial judge in a separate case from requiring the debtor to comply with a discovery order issued prior to the filing of the insolvency petition). Here, the Bank merely maintained the status quo, and did not harass, interfere or gain any advantage. This is consistent with the purpose of" } ]

[ { "docid": "19121389", "title": "", "text": "of action arose out of the same transactions and occurrences, the Court does not intend to require Debtor’s counsel to attempt to allocate his time to specific counts of the Debtor's complaint. Thus, the result of the Court’s order will be that Debtor’s counsel’s fees will be paid in full regardless of whether they arose pre- or postpetition or whether they were incurred in conjunction with the Chapter 13 case or this adversary proceeding. . The court cited the following cases: In re Peters, 101 F.3d 618 (9th Cir.1996); In re Roach, 660 F.2d 1316, 1319 (9th Cir.1981); In re Fritz, 225 B.R. 218 (E.D.Wash.1997); Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H.1993); In re Tome, 113 B.R. 626, 630-32 (Bankr.C.D.Cal.1990); In re Barnes, 119 B.R. 552, 556 (S.D.Ohio 1989); In re Taylor, 207 B.R. 995, 999 (Bankr.W.D.Pa.1997); In re Stober, 193 B.R. 5 (Bankr.D.Ariz.1996); In re Doud, 30 B.R. 731, 733-34 (Bankr.W.D.Wash.1983); Workingmen's Savings and Loan Association of Dellwood Corp. v. Kestner, 438 Pa.Super. 186, 652 A.2d 327 (1994). . The Court's holding is limited to the facts of this case, as the Court can conceive of circumstances in which postponement of a foreclosure sale may violate the automatic stay. For example, if a secured party repeatedly continued the foreclosure sale for brief periods, it is conceivable that harassment rather than the preservation of the status quo would be motivating the creditor and warrant judicial intervention." }, { "docid": "4790768", "title": "", "text": "931 F.2d 984, 987 (1st Cir.1991) (“[t]he automatic stay is designed to effect an immediate freeze of the status quo at the outset”); In re Texaco Inc., 73 B.R. 960, 963 (Bankr.S.D.N.Y.1987) (court allowed note holders to present a formal notice of tender to the debtors “in order to allow the note holders to maintain their status quo during the post-Chapter 11 period so that they might not be deprived of their rights to tender their Notes at some future time”) (emphasis in original). The Court of Appeals for the Ninth Circuit has explicitly held that postponement of a foreclosure sale does not violate the automatic stay provisions of the Code. In re Roach, 660 F.2d 1316 (9th Cir.1981). As recognized in Roach, postponing the date of a foreclosure sale maintains the status quo between creditor and debtor, as of the time of bankruptcy filing. Id. at 1319. No other effect is apparent, and certainly none measurably prejudicial to the debtor’s economic interests. The Ninth Circuit emphasized in Roach that the postponing creditor did not “harass, interfere, or gain any advantage.” Id. citing In re Decker, 465 F.2d 294, 297 (3d Cir.1972) (“[Sjtays are in the nature of temporary injunctions designed to maintain the status quo.”) Accordingly, the act of postponement was found by the Court of Appeals to violate neither the plain language nor the purpose of the automatic stay provisions. Roach, 660 F.2d at 1319. Other courts that have faced this and similar issues have resolved them consistently with the Ninth Circuit’s analysis in Roach. See, e.g., In re Tome, 113 B.R. 626, 630 (Bankr.D.Cal.1990) (Postponement of a foreclosure sale by secured creditors one month at a time while bankruptcy case is pending is not violative of automatic stay.); In re Barnes, 119 B.R. 552, 556 (S.D.Ohio 1989) (Rescheduling and advertisement of a Sheriff’s sale three days after the dismissal of Chapter 13 petition is not violative of Bankruptcy Rule 7062. ); In re Doud, 30 B.R. 731, 733-734 (Bankr. W.D.Wash.1983) (Creditor bank, in a Chapter 7 case, postponed a non-judicial foreclosure sale of mortgaged property, without violating" }, { "docid": "12613082", "title": "", "text": "PER CURIAM. In its opinion below, the Bankruptcy Appellate Panel held that mortgage lenders violate the automatic stay, 11 U.S.C. § 362, by continuing to postpone foreclosure sales after confirmation of a debtor’s Chapter 13 reorganization plan. Peters v. Mason McDuffie (In re Peters), 184 B.R. 799, 802 (9th Cir. BAP 1995). This reasoning was thoroughly considered and rejected by District Judge Wardlaw in Barry v. BA Properties, Inc. (In re Barry), 201 B.R. 820 (C.D.Cal.1996): The Ninth Circuit has held that a creditor may postpone a foreclosure sale after a debtor files a bankruptcy petition without violating the automatic stay. First Nat’l Bank of Anchorage v. Roach (In re Roach), 660 F.2d 1316, 1318 (9th Cir.1981). The rationale supporting this decision is that postponement maintains the status quo and does not affect the debtor’s substantive rights. Id. at 1319. However, the Roach court did not address the situation where a postponement occurs after the bankruptcy court has confirmed a Chapter 13 reorganization plan. The Ninth Circuit Bankruptcy Appellate Panel has held that “[t]he confirmation of a chapter 13 plan immediately acts to cure any defaults that are provided for under the plan. The terms of the cure are the payment of the arrearages, but the cure itself is effective immediately unless the plan otherwise provides.” Peters v. Mason-McDuffie Mortgage Corp. (In re Peters), 184 B.R. 799, 802 (9th Cir. [BAP] 1995). From this holding it reasoned that under (Anaheim Sav. & Loan v. Evans (In re Evans), 30 B.R. 530 (9th Cir. BAP 1983) ] and [Ellis v. Parr (In re Ellis), 60 B.R. 432 (9th Cir. BAP 1985) ], “[t]he res judicata effect of the confirmed chapter 13 plan eliminated [the creditor’s] right to sell ... property based on prepetition (and preconfirmation) defaults.” Id. at 802. In other words, by curing the default, the confirmation destroys the creditor’s right to conduct a foreclosure sale because the default giving rise to the right no longer exists. Under the Peters theory, continuing to postpone the foreclosure violates the automatic stay because the creditor is attempting to retain rights that the" }, { "docid": "15728215", "title": "", "text": "not carry forward or persist against a debtor. A debtor enjoys little satisfaction from a creditor’s honest words that it files a collection action in state court but refrains from persisting in the collection action until bankruptcy proceedings sort itself out. Active state filings exist as more than placeholders — the risk of default judgment looms over the debtor throughout. Counsel must be engaged to defend against a default judgment. Additionally, state collection actions are not to be used as leverage in negotiating collection over the debtor’s estate already in bankruptcy. Alternatively, Eskanos cites two Ninth Circuit cases holding the postponement of foreclosure sales by creditors does not vio late an automatic stay. First Nat’l Bank v. Roach (In re Roach), 660 F.2d 1316, 1318 (9th Cir.1981); Mason-McDuffie Mortg. Corp. v. Peters (In re Peters), 101 F.3d 618, 620 (9th Cir.1996) (per curiam). Both Roach and Peters are inapposite. In each the legal holding addressed postponements of actions to collect debts where the creditor notified the debtor of the postponement and maintained the bankruptcy proceeding’s status quo. Roach, 660 F.2d at 1317; Peters, 101 F.3d at 619. The postponement acted as an immediate freeze of non-bankruptcy proceedings. Maintenance of an active collection action against a debtor, on the other hand, neither postpones collection nor maintains the status quo. Consequently, we reject Eskanos’s interpretation that “continuation” requires additional efforts beyond sustaining an active claim. The maintenance of an active collection action alone adequately satisfies the statutory prohibition against “continuation” of judicial actions. Consistent with the plain and unambiguous meaning of the statute, and consonant with Congressional intent, we hold that § 362(a)(1) imposes an affirmative duty to discontinue post-petition collection actions. B. Eskanos Willfully Violated the Automatic Stay Section 362(h) permits sanctions for willful violations of § 362(a). A willful violation is satisfied if a party knew of the automatic stay, and its actions in violation of the stay were intentional. Pinkstaff v. United States (In re Pinkstaff), 974 F.2d 113, 115 (9th Cir.1992). Ample evidence in the record supports the bankruptcy court’s finding that Eskanos willfully violated the automatic stay." }, { "docid": "19121369", "title": "", "text": "to the abortive April 1 auction, the record shows no evidence of actual damage to de Jesus from that event. Civil contempt proceedings are limited to redressing actual injury of those harmed by the contemnor’s conduct. It is a closer question whether [the secured party] could be deemed to have contemptuously violated section 362 by proceeding, after learning of the chapter 13 petition, to schedule the sheriffs sale for May 2 and finally for May 14. [The secured party] did, however, petition the bankruptcy court to lift the stay and we have no reason to imagine he would have proceeded with the auction had the chapter 13 petition not been dismissed. Similar actions were held not to have violated the automatic stay in In re Roach, 660 F.2d 1316 (9th Cir.1981). Like the creditor in Roach, [the secured party] did little more than reschedule the auction and advertise the new date from the time he learned of the petition until its dismissal. It was not shown that these preparatory acts either harassed de Jesus or revived “the financial pressures that drove [her] into bankruptcy.” S.Rep. No. 989, 95th Cong., 2d Sess. 54, reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 5840-41. Cf. In re Demp, 23 B.R. 239 (Bkrtcy.E.D.Pa.1982) (awarding attorneys’ fees, but not damages, against creditor who posted notice of sheriffs sale on debtor’s house). 721 F.2d at 853. In view of the court’s citation to the Ninth Circuit’s decision in In re Roach and the significant number of decisions following it, including a decision from the District of New Hampshire, Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H.1993), this Court concludes that the First Circuit in all likelihood would follow the Ninth and Third Circuits in holding that the mere postponement of a foreclosure sale for three months preserves the status quo and does not violate the automatic stay. Accordingly, the Court rejects the Debtor’s argument that Fannie Mae’s failure to file a motion for relief from the automatic stay distinguishes this case from the cases cited and that its conduct “amounted to a gratuitous threat" }, { "docid": "4790769", "title": "", "text": "“harass, interfere, or gain any advantage.” Id. citing In re Decker, 465 F.2d 294, 297 (3d Cir.1972) (“[Sjtays are in the nature of temporary injunctions designed to maintain the status quo.”) Accordingly, the act of postponement was found by the Court of Appeals to violate neither the plain language nor the purpose of the automatic stay provisions. Roach, 660 F.2d at 1319. Other courts that have faced this and similar issues have resolved them consistently with the Ninth Circuit’s analysis in Roach. See, e.g., In re Tome, 113 B.R. 626, 630 (Bankr.D.Cal.1990) (Postponement of a foreclosure sale by secured creditors one month at a time while bankruptcy case is pending is not violative of automatic stay.); In re Barnes, 119 B.R. 552, 556 (S.D.Ohio 1989) (Rescheduling and advertisement of a Sheriff’s sale three days after the dismissal of Chapter 13 petition is not violative of Bankruptcy Rule 7062. ); In re Doud, 30 B.R. 731, 733-734 (Bankr. W.D.Wash.1983) (Creditor bank, in a Chapter 7 case, postponed a non-judicial foreclosure sale of mortgaged property, without violating § 362(a), since act of postponement “is not in and of itself adversarial.” ) Our own Court of Appeals is apparently inclined to follow the “status quo” approach to and interpretation of the automatic stay provisions. In re de Jesus Saez, 721 F.2d 848 (1st Cir.1983). In Saez, the First Circuit Court of Appeals considered whether a creditor’s rescheduling of a sheriffs sale was in violation of the Bankruptcy Code’s automatic stay provisions. Reasoning that the mere act of postponement was not shown to have harassed, or revived the financial pressures that drove the debt- or into bankruptcy, the Court, favorably citing the Ninth Circuit’s Roach opinion, declined to affirm a contempt finding based upon a violation of the stay provisions. Id. at 853. The postponement of a foreclosure sale is certainly an “act”. But, it is not an act in “continuation” of a proceeding “against the debtor” prohibited by § 362(a)(1). Rather, it is more appropriately characterized as an act in preservation of a stayed proceeding. The arrow of time, immune to the Bankruptcy" }, { "docid": "5967646", "title": "", "text": "Appellant’s Brief at 2; Appellee’s Brief at 6. Thus, this Court must review the bankruptcy court’s decision under the de novo standard. IV.WHETHER FORECLOSURE SALE IS VOID Barry argues that the foreclosure sale is void because (1) the post-confirmation post ponements violated the automatic stay; (2) BA Properties failed to follow applicable notification procedures; and (3) equitable principles warrant voiding the sale. A. Post-confirmation Postponement Does Not Violate Automatic Stay The bankruptcy court did not err in refusing to apply In re Peters, a Ninth Circuit Bankruptcy Appellate Panel decision. Therefore, the Court affirms the bankruptcy court’s holding that a post-confirmation postponement does not violate the automatic stay. The Ninth Circuit has held that a creditor may postpone a foreclosure sale after a debt- or files a bankruptcy petition without violating the automatic stay. First Nat’l Bank of Anchorage v. Roach (In re Roach), 660 F.2d 1316, 1318 (9th Cir.1981). The rationale supporting this decision is that postponement maintains the status quo and does not affect the debtor’s substantive rights. Id. at 1319. However, the Roach court did not address the situation where a postponement occurs after the bankruptcy court has confirmed a Chapter 13 reorganization plan. A Chapter 13 reorganization plan may alter the legal relationship of the debtor and creditor, so before applying Roach, which was decided in a pre-confirmation context, in the post-confirmation context, the Court must determine that the postponement merely continues to preserve the status quo. Under Chapter 13, “[t]he provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.” 11 U.S.C. § 1327(a). “[Sjubsection 1327(a) bar[s] post-confirmation relief from [the] stay based on grounds arising before confirmation.” Ellis v. Parr (In re Ellis), 60 B.R. 432, 434 (9th Cir. BAP 1985). Therefore, a creditor must voice concerns, such as worries about adequate protection and the necessity of certain assets for a successful reorganization, before the confirmation. Once confirmation occurs, the creditor may not" }, { "docid": "5411904", "title": "", "text": "unless and until relief from stay is granted. In Workingmen’s Savings and Loan Association of Dellwood Corp. v. Kestner, 438 Pa.Super. 186, 652 A.2d 327 (1994), the mortgagors challenged the validity of a postpetition sheriffs sale. The mortgagors contended, as Debtor does here, that the continuation of the sheriffs sale by public announcement to a date certain in accordance with Pa.R.Civ.P. 3129.3(b) violated the automatic stay. The court rejected the argument stating: Under the prevailing view, postponing a foreclosure sale is not violative of the automatic stay provisions ... Postponement notices which specify a new sale date merely preserve the status quo between creditor and debtor ... We agree that this is a correct view.... Such a view is entirely consistent with the protection intended by the automatic stay ... 652 A.2d at 328-29. The court cited Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H.1993), as indicative of the prevailing view. In Zeoli the debtors filed a motion to hold the mortgagee in contempt for violating the automatic stay by postponing a foreclosure sale postpetition. The bankruptcy court granted the motion. The district court reversed. The court granted the motion. The district court reversed. The mortgagee had appeared at the scheduled sheriffs sale and postponed it to a date certain as required by New Hampshire law. Subsequently, the bankruptcy court granted relief from stay to the mortgagee. The court examined the legislative history of § 362 and noted that its purpose was to prevent creditors from “ ‘dismember[ing] ... estates by the foreclosures of liens’ [and] lamented the courts’ inability, at that time, to halt continuation of foreclosure proceedings ...” 148 B.R. at 699 citing H.R.Rep. No. 137, 93rd Cong., 1st Sess. 16 (1973). While acknowledging that the bankruptcy court’s interpretation of § 362 with respect to the postponement of the sheriffs sale had merit, the court noted that The primary purposes of the automatic stay provisions are to effectively stop all creditor collection efforts, stop all harass ment of a debtor seeking relief, and to maintain the status quo between the debt- or and her creditors, thereby affording" }, { "docid": "5411903", "title": "", "text": "We now address Debtor’s contention that the oral postponement of the sale by public announcement violated the stay, thereby voiding the sale. We conclude that under the facts of this case the rescheduling of the sheriffs sale while the creditor promptly pursued a motion for relief from stay is not the type of “continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case,” 11 U.S.C. § 362(a), that is prohibited per se by § 362 of the Bankruptcy Code. Continuation in the eon- text of § 862(a) means to carry forward or persist. Webster’s II New Riverside University Dictionary 305 (1984). The continuance or rescheduling of the sheriffs sale simply maintained the status quo pending further proceedings in the bankruptcy case. See id. (“continue ... 3. To cause to remain or last: Retain ... 5. ... To postpone or adjourn (a judicial proceeding”). Such continuances often occur in bankruptcy cases but the rescheduled sales do not take place unless and until relief from stay is granted. In Workingmen’s Savings and Loan Association of Dellwood Corp. v. Kestner, 438 Pa.Super. 186, 652 A.2d 327 (1994), the mortgagors challenged the validity of a postpetition sheriffs sale. The mortgagors contended, as Debtor does here, that the continuation of the sheriffs sale by public announcement to a date certain in accordance with Pa.R.Civ.P. 3129.3(b) violated the automatic stay. The court rejected the argument stating: Under the prevailing view, postponing a foreclosure sale is not violative of the automatic stay provisions ... Postponement notices which specify a new sale date merely preserve the status quo between creditor and debtor ... We agree that this is a correct view.... Such a view is entirely consistent with the protection intended by the automatic stay ... 652 A.2d at 328-29. The court cited Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H.1993), as indicative of the prevailing view. In Zeoli the debtors filed a motion to hold the mortgagee in contempt for violating the automatic stay by postponing a foreclosure sale" }, { "docid": "746333", "title": "", "text": "a retraining order. ARGUMENTS OF THE PARTIES Each party argues that on the above facts, it is entitled to judgment as a matter of law. The Debtor contends that repeated postponements of the foreclosure sale are, per se, a violation of the automatic stay, first because it directly contravenes the injunction in 11 U.S.C. § 362(a)(1) against the “continuation” of an action or proceeding against the debtor and second because it perpetuates the threat of foreclosure, which threat, by its nature and regardless of the mortgagee’s state of mind, harasses and pressures the debtor to pay the underlying debt. The Debtor urges the Court not to follow the holding in First Nat’l Bank of Anchorage v. Roach (In re Roach), 660 F.2d 1316 (9th Cir.1981) (postpetition continuance of foreclosure sale deemed not violative of automatic stay because the mortgagee merely maintained the status quo and did not harass, interfere, or gain advantage), both (a) because it is inconsistent with the injunction in § 362(a)(1) against the “continuation” of an action or proceeding against the debtor and (b) because recent legislative modifications to the duration of the automatic stay have enhanced the protections of creditors against abusive bankruptcy filings and thereby undercut the rationale for Roach, which was to permit mortgagees to maintain the status quo in the face of clearly abusive bankruptcy filings. In the alternative, the Debtor argues that a postpetition postponement violates the stay if, at the time of the postponement, there exists no objectively reasonable expectation that relief from the automatic stay is likely to be obtained in the foreseeable future; and the postponements here violated the stay because, at the time of each postponement, there existed no such reasonable expectation. The Defendants urge the Court to follow Roach by holding that, in a chapter 13 case, postponements of a foreclosure sale that (a) occur before confirmation of a chapter 13 plan or when the creditor has a reasonable expectation that relief from the stay is likely to be obtained in the foreseeable future, and (b) are done solely to preserve the status quo are, as a" }, { "docid": "15907146", "title": "", "text": "a violation of the automatic stay and sanctions would be appropriate. Emmes responded that continuance of a foreclosure sale is not a stay violation, and, even if it were, it was not a wilful violation for which sanctions would lie. I ordered the Internet listing to be removed and continued the hearing for a subsequent determination on Debtor’s demand for sanctions. At the subsequent hearing on January 4, 2001, I rendered this decision and announced that I would issue a more formal written version later. Were I to look at § 362 afresh, I would have no hesitation in holding that any continuation of a foreclosure sale during the post-petition period would be a violation of the automatic stay as constituting “the ... continuation ... of [an] action or proceeding against the debtor.” 11 U.S.C. § 362(a)(1). Nevertheless, while that bar is stated in absolute terms, courts have held that it is subject to some limitations. Both sides refer to Judge Feeney’s decision, Hart v. GMAC Mortgage Corp. (In re Hart), 246 B.R. 709 (Bankr.D.Mass.2000). In that case, which involved a single continuance during a Chapter 13 case, Judge Feeney refers to the majority view that continuance of a foreclosure sale is not a violation of the automatic stay. Id. at 739. She held that the single continuance was not a stay violation, specifically ruling that The Court’s holding is limited to the facts of this case, as the Court can conceive of circumstances in which postponement of a foreclosure sale may violate the automatic stay. For example, if a secured party repeatedly continued the foreclosure sale for brief periods, it is conceivable that harassment rather than the preservation of the status quo would be motivating the creditor and warrant judicial intervention. 246 B.R. at 740 n. 29. In particular Judge Feeney relied upon Taylor v. Slick, 178 F.3d 698 (3d Cir.1999) and Lugo v. Saez (In re Saez), 721 F.2d 848 (1st Cir.1983). Taylor is directly on point on its facts and holds that the continuation of a foreclosure sale is neither commencement nor continuation, but rather a postponement." }, { "docid": "18941857", "title": "", "text": "courts, however, and hold that the continuance of a sheriffs sale in accordance with state law procedure during the pendency of an automatic stay does not violate § 362(a)(1). See, e.g., In re Peters, 101 F.3d 618 (9th Cir.1996); In re Roach, 660 F.2d 1316 (9th Cir.1981);' In re Fritz, 225 B.R. 218 (E.D.Wash.1997); Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H.1993); In re Tome, 113 B.R. 626 (Bankr.C.D.Cal.1990); Workingmen’s Savings and Loan Ass’n of Dellwood Corp. v. Kestner, 438 Pa.Super. 186, 652 A.2d 327 (1994); see also In re Roche, 228 B.R. 102, 103-104 (Bankr. M.D. Pa.1998) (“[Ejvery court that has studied this specific issue (and has not been reversed) has found no violation.”). In relevant part, 11 U.S.C. § 362(a)(1) provides: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302 or 303 of this title ... operates as a stay applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the Debtor that was or could have been commenced before the commencement of the case. 11 U.S.C. § 362(a)(1) (emphasis added). “The primary purposes of the automatic stay provisions are to effectively stop all creditor collection efforts, stop all harassment of a debtor seeking relief, and to maintain the status quo between the debt- or and [his] creditors, thereby affording the parties and the Court an opportunity to appropriately resolve competing economic interests in an orderly and effective way.” Zeoli, 148 B.R. at 700 (emphasis added). We must therefore decide whether a continuation of a sheriffs sale serves to maintain the status quo between the debtor and his creditors or whether it constitutes “a judicial, administrative, or other action or proceeding” prohibited by § 362(a)(1). According to the principle of noscitur a sociis, the word “continuation,” as used in § 362(a)(1), must be read in conjunction with other words that surround it, such as “commencement.” Upon such examination, it becomes apparent that the filing of a bankruptcy petition prohibits the beginning (“commencement”)" }, { "docid": "5967645", "title": "", "text": "or because the debtor has no equity in the property and does not need it for an effective reorganization. BA Properties made none of these arguments. Instead, it contended that the foreclosure sale had divested Barry of his interest in the Property, so the automatic stay did not attach to it when the bankruptcy court reopened his Chapter 13 ease. II.JURISDICTION This matter is an appeal from a final judgment of the United States Bankruptcy Court for the Central District of California. Thus, this Court has jurisdiction under section 158(a) of Title 28. See 28 U.S.C. § 158(a) (“The district courts of the United States shall have jurisdiction to hear appeals from final judgments [and] orders ... of bankruptcy judges_”). It sits as an appellate court. III.STANDARD OF REVIEW This Court reviews a bankruptcy court’s conclusions of law de novo. Manufacturers Hanover v. Dewalt (In re Dewalt), 961 F.2d 848, 850 (9th Cir.1992). It reviews findings of fact under the clearly erroneous standard. Id. The parties agree that this appeal poses pure questions of law. Appellant’s Brief at 2; Appellee’s Brief at 6. Thus, this Court must review the bankruptcy court’s decision under the de novo standard. IV.WHETHER FORECLOSURE SALE IS VOID Barry argues that the foreclosure sale is void because (1) the post-confirmation post ponements violated the automatic stay; (2) BA Properties failed to follow applicable notification procedures; and (3) equitable principles warrant voiding the sale. A. Post-confirmation Postponement Does Not Violate Automatic Stay The bankruptcy court did not err in refusing to apply In re Peters, a Ninth Circuit Bankruptcy Appellate Panel decision. Therefore, the Court affirms the bankruptcy court’s holding that a post-confirmation postponement does not violate the automatic stay. The Ninth Circuit has held that a creditor may postpone a foreclosure sale after a debt- or files a bankruptcy petition without violating the automatic stay. First Nat’l Bank of Anchorage v. Roach (In re Roach), 660 F.2d 1316, 1318 (9th Cir.1981). The rationale supporting this decision is that postponement maintains the status quo and does not affect the debtor’s substantive rights. Id. at 1319. However, the" }, { "docid": "15907147", "title": "", "text": "In that case, which involved a single continuance during a Chapter 13 case, Judge Feeney refers to the majority view that continuance of a foreclosure sale is not a violation of the automatic stay. Id. at 739. She held that the single continuance was not a stay violation, specifically ruling that The Court’s holding is limited to the facts of this case, as the Court can conceive of circumstances in which postponement of a foreclosure sale may violate the automatic stay. For example, if a secured party repeatedly continued the foreclosure sale for brief periods, it is conceivable that harassment rather than the preservation of the status quo would be motivating the creditor and warrant judicial intervention. 246 B.R. at 740 n. 29. In particular Judge Feeney relied upon Taylor v. Slick, 178 F.3d 698 (3d Cir.1999) and Lugo v. Saez (In re Saez), 721 F.2d 848 (1st Cir.1983). Taylor is directly on point on its facts and holds that the continuation of a foreclosure sale is neither commencement nor continuation, but rather a postponement. Saez involved a sheriffs sale, and held that a single continuance during a Chapter 13 case (the sale was held after the case was dismissed) was not a stay violation. I concur with Judge Feeney that there should not be an absolute rule allowing continuances of foreclosure sales in all circumstances. The right to continue must be subject to reasonable limitations. Fortunately, there is guidance from the Supreme Court. In Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995), the Court held that a bank’s temporary refusal to pay its debt to the debtor upon demand through the medium of an “administrative hold” was not an exercise of setoff rights and hence not a stay violation. The Court placed heavy emphasis on the temporary nature of the stoppage, and, since Strumpf, it has become a sound practice for a bank to supplement its administrative hold with a prompt motion for relief from stay. A delay of four months has been held to be a stay violation. Town of" }, { "docid": "18941856", "title": "", "text": "U.S.C. § 362(a)(1) and therefore voided the sale, and that the subsequent sale was conducted without proper notice, in violation of his due process rights. The bankruptcy court granted Slick’s motion to dismiss the adversary complaint on the basis that there had been no violation of the automatic stay rule set forth in 11 U.S.C. § 362(a)(1), and that Appellant had received adequate notice under bankruptcy rules and Pennsylvania law. Appellant withdrew his remaining claims in order to appeal the issues presented here. After oral argument, the district court dismissed Appellant’s appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 158(d). We review the bankruptcy court’s factual findings for clear error, but conduct plenary review of the bankruptcy court’s and district court’s legal conclusions. In re Cohen, 106 F.3d 52, 55 (3d Cir.1997). II. This court has not previously addressed whether the postponement or continuation of a sheriffs sale violates the automatic stay provisions of 11 U.S.C. § 362(a). We are persuaded by a consistent line of cases from other courts, however, and hold that the continuance of a sheriffs sale in accordance with state law procedure during the pendency of an automatic stay does not violate § 362(a)(1). See, e.g., In re Peters, 101 F.3d 618 (9th Cir.1996); In re Roach, 660 F.2d 1316 (9th Cir.1981);' In re Fritz, 225 B.R. 218 (E.D.Wash.1997); Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H.1993); In re Tome, 113 B.R. 626 (Bankr.C.D.Cal.1990); Workingmen’s Savings and Loan Ass’n of Dellwood Corp. v. Kestner, 438 Pa.Super. 186, 652 A.2d 327 (1994); see also In re Roche, 228 B.R. 102, 103-104 (Bankr. M.D. Pa.1998) (“[Ejvery court that has studied this specific issue (and has not been reversed) has found no violation.”). In relevant part, 11 U.S.C. § 362(a)(1) provides: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302 or 303 of this title ... operates as a stay applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action" }, { "docid": "746332", "title": "", "text": "postpetition payments. Also, ABN’s objection to the Debtor’s amended plan had been sustained, and the Debtor was under order to file an amended plan by December 31, 2006. On December 15, 2006, the Debtor did file a second amended plan, and on January 18, 2007, the Court allowed the Debtor’s motion to approve the second amended plan. On February 23, 2007, at the date and time of the scheduled foreclosure sale, Harmon postponed the foreclosure sale for the fifth time, this time rescheduling it to May 1, 2007. At the time of this fifth continuance, the debtor remained current on her postpetition payments and, although the confirmation order had not yet entered, the Court had approved the Debt- or’s second amended plan. On February 28, 2007, the Debtor moved in this adversary proceeding for a restraining order against the Defendants’ further advertising, conducting, or postponing a foreclosure sale without first obtaining relief from the automatic stay. Shortly thereafter, ABN and Harmon stipulated to cancellation of the foreclosure sale, whereupon the Debtor withdrew her motion for a retraining order. ARGUMENTS OF THE PARTIES Each party argues that on the above facts, it is entitled to judgment as a matter of law. The Debtor contends that repeated postponements of the foreclosure sale are, per se, a violation of the automatic stay, first because it directly contravenes the injunction in 11 U.S.C. § 362(a)(1) against the “continuation” of an action or proceeding against the debtor and second because it perpetuates the threat of foreclosure, which threat, by its nature and regardless of the mortgagee’s state of mind, harasses and pressures the debtor to pay the underlying debt. The Debtor urges the Court not to follow the holding in First Nat’l Bank of Anchorage v. Roach (In re Roach), 660 F.2d 1316 (9th Cir.1981) (postpetition continuance of foreclosure sale deemed not violative of automatic stay because the mortgagee merely maintained the status quo and did not harass, interfere, or gain advantage), both (a) because it is inconsistent with the injunction in § 362(a)(1) against the “continuation” of an action or proceeding against the debtor" }, { "docid": "5411906", "title": "", "text": "the parties and the Court an opportunity to appropriately resolve competing economic interests in an orderly and effective way. Maintaining the status quo is a repeating theme in decisions construing the automatic stay provisions. 148 B.R. at 700 (citations omitted) (emphasis added). The court found that the only effect of postponement of a sheriffs sale is to maintain the status quo. In In re Roach, 660 F.2d 1316 (9th Cir.1981), the Court of Appeals for the Ninth Circuit held that publication by a mortgagee of several successive notices of postponement of sale after the debtor filed a chapter 11 “maintained the status quo, and did not harass, interfere or gain any advantage. This is consistent with the purpose of the automatic stay provision.” 660 F.2d at 1319 (citing In re Decker, 465 F.2d 294, 297 (3d Cir.1972)). Roach was reaffirmed and applied to repetitious postponements of the foreclosure sale without obtaining relief from stay, despite confirmation of a chapter 13 plan that provided for full cure of arrearages. In re Peters, 101 F.3d 618 (9th Cir.1996). In Peters, the court decided that confirmation of the plan was not a cure of the default and, until the actual payment of arrears, the debtor was still in default and the creditor was entitled to maintain the status quo. Debtor also takes issue with the fact that the order granting relief from stay was entered only six days before the sheriffs sale took place and that the sheriffs sale was not renotieed. He contends that 30 days’ renot-ice was required under the Pennsylvania Rules of Civil Procedure and was not given. Brief in Opposition to Motion to Dismiss at 7-8. This is incorrect as a matter of law. Rule 3129.2(c)(3) of the Pennsylvania Rules of Civil Procedure provides that: If service on any person is not made at least thirty days prior to the date of the sale stated in the notice, such notice shall be deemed timely if the sale is stayed, continued, postponed or adjourned in accordance with Rule 3129.3 to a date certain which is at least thirty days after" }, { "docid": "19121388", "title": "", "text": "notation that a copy of the account would be sent to Scott Lathrop to research. Apparently, it took 11 weeks to get Scott Lathrop to investigate the account and then it did not seem to matter what his research produced because Meinecke decided just two days later, on May 21, 1998, not to use the $924.29 that was in a suspense account for a monthly mortgage payment. . In this regard, the Court notes that it is its intention to compensate the Debtor for his attorney’s fees both for representing the Debt- or during the Chapter 13 case as an element of damage under Chapter 93A and for representing the Debtor in this adversary proceeding. Although the Court finds that the Debt- or’s attorney is not entitled to attorney's fees under Chapter 93A in this adversary proceeding after receipt of the Defendants’ response on or around November 10, 1998, the Court has determined that the Debtor is entitled to attorney’s fees with respect to this adversary proceeding under the FDCPA. Because all the alleged causes of action arose out of the same transactions and occurrences, the Court does not intend to require Debtor’s counsel to attempt to allocate his time to specific counts of the Debtor's complaint. Thus, the result of the Court’s order will be that Debtor’s counsel’s fees will be paid in full regardless of whether they arose pre- or postpetition or whether they were incurred in conjunction with the Chapter 13 case or this adversary proceeding. . The court cited the following cases: In re Peters, 101 F.3d 618 (9th Cir.1996); In re Roach, 660 F.2d 1316, 1319 (9th Cir.1981); In re Fritz, 225 B.R. 218 (E.D.Wash.1997); Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H.1993); In re Tome, 113 B.R. 626, 630-32 (Bankr.C.D.Cal.1990); In re Barnes, 119 B.R. 552, 556 (S.D.Ohio 1989); In re Taylor, 207 B.R. 995, 999 (Bankr.W.D.Pa.1997); In re Stober, 193 B.R. 5 (Bankr.D.Ariz.1996); In re Doud, 30 B.R. 731, 733-34 (Bankr.W.D.Wash.1983); Workingmen's Savings and Loan Association of Dellwood Corp. v. Kestner, 438 Pa.Super. 186, 652 A.2d 327 (1994). . The Court's holding" }, { "docid": "1855205", "title": "", "text": "serial-filing debtor and other potential parties in interest, including an innocent jointly filing spouse.” St. Anne’s, 490 B.R. at 145. . Accord Roche v. Franklin First Fed. Sav. Bank (In re Roche), 228 B.R. 102, 103-04 (Bankr.M.D.Pa.1998) (noting that \"every court that has studied this specific issue (and not been reversed) has found” that the postponement of a sale in accordance with state law procedure during the pendency of the automatic stay is not a violation of the automatic stay) (citing Mason-McDuffie Mortg. Corp. v. Peters (In re Peters), 101 F.3d 618 (9th Cir.1996); In re Roach, supra; Wash. Mut. v. Fritz (In re Fritz), 225 B.R. 218 (E.D.Wash. 1997); In rr Barnes, 119 B.R. 552, 556 (S.D.Ohio 1989); Taylor v. Slick (In re Taylor), 207 B.R. 995, 999 (Bankr.W.D.Pa.1997), aff'd, 178 F.3d 698 (3d Cir.1999); In re Stober, 193 B.R. 5 (Bankr.D.Ariz.1996); Zeoli v. RIHT Mortg. Corp., supra; Tome v. Baer (In re Tome), 113 B.R. 626, 630 (Bankr.C.D.Cal.1990); United Mut. Sav. Bank v. Doud (In re Doud), 30 B.R. 731, 733 (Bankr.W.D.Wash.1983); Workingmen’s Sav. and Loan Ass'n of Dellwood Corp. v. Kestner, 438 Pa.Super. 186, 652 A.2d 327 (1994)); but see Lynn-Weaver v. ABN-AMRO Mortg. Grp., Inc. (In re Lynn-Weaver), 385 B.R. 7 (Bankr.D.Mass.2008) (holding that five foreclosure continuances, in the absence of stay relief, were each violations of the automatic stay); In re Heron Pond, LLC, 258 B.R. 529, 530 (Bankr.D.Mass.2001) (stating that the \"right to continue [a foreclosure sale] must be subject to reasonable limitations” and holding that \"a single continuance of a foreclosure sale following the filing of a petition is not a violation of the automatic stay if, before the continued sale date, the creditor filed an appropriate motion for relief from stay”). . Although neither the parties nor the court identified the particular Rhode Island statute which governs the continuation of foreclosures, we note that R.I. Gen. Laws § 34-27-4(a) provides, in part: [I]f the sale is adjourned as provided in Rhode Island general laws § 34-11-22, and the adjourned sale is held during the same calendar week as the originally scheduled day" }, { "docid": "5411905", "title": "", "text": "postpetition. The bankruptcy court granted the motion. The district court reversed. The court granted the motion. The district court reversed. The mortgagee had appeared at the scheduled sheriffs sale and postponed it to a date certain as required by New Hampshire law. Subsequently, the bankruptcy court granted relief from stay to the mortgagee. The court examined the legislative history of § 362 and noted that its purpose was to prevent creditors from “ ‘dismember[ing] ... estates by the foreclosures of liens’ [and] lamented the courts’ inability, at that time, to halt continuation of foreclosure proceedings ...” 148 B.R. at 699 citing H.R.Rep. No. 137, 93rd Cong., 1st Sess. 16 (1973). While acknowledging that the bankruptcy court’s interpretation of § 362 with respect to the postponement of the sheriffs sale had merit, the court noted that The primary purposes of the automatic stay provisions are to effectively stop all creditor collection efforts, stop all harass ment of a debtor seeking relief, and to maintain the status quo between the debt- or and her creditors, thereby affording the parties and the Court an opportunity to appropriately resolve competing economic interests in an orderly and effective way. Maintaining the status quo is a repeating theme in decisions construing the automatic stay provisions. 148 B.R. at 700 (citations omitted) (emphasis added). The court found that the only effect of postponement of a sheriffs sale is to maintain the status quo. In In re Roach, 660 F.2d 1316 (9th Cir.1981), the Court of Appeals for the Ninth Circuit held that publication by a mortgagee of several successive notices of postponement of sale after the debtor filed a chapter 11 “maintained the status quo, and did not harass, interfere or gain any advantage. This is consistent with the purpose of the automatic stay provision.” 660 F.2d at 1319 (citing In re Decker, 465 F.2d 294, 297 (3d Cir.1972)). Roach was reaffirmed and applied to repetitious postponements of the foreclosure sale without obtaining relief from stay, despite confirmation of a chapter 13 plan that provided for full cure of arrearages. In re Peters, 101 F.3d 618 (9th" } ]

[ { "docid": "22212061", "title": "", "text": "109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989). The moving party has the initial burden of demonstrating that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party has satisfied this requirement, the burden shifts to the nonmoving party to present evidence that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e). Any inference to be drawn from facts contained in depositions and exhibits must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962). In deciding a motion for summary judgment, the judge’s function is not to weigh the evidence and determine the truth of the matter, but rather to determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. The district court cannot decide issues of fact at the summary judgment stage. White v. Westinghouse Elec. Co., 862 F.2d 56, 62 (3d Cir.1988). IV. The United States Supreme Court has noted that in the workplace, the “broad overriding interest, shared by employer, employee and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). “In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.” Id. Title 42 U.S.C. § 2000e-2(a)(l) (1988) states: It shall be an unlawful employment practice for an employer — to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. The court’s factual inquiry in a Title VII case is whether the employer intentionally discriminated against the employee. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103" } ]

[ { "docid": "12615304", "title": "", "text": "evaluations. He argues that his evaluations were in fact mixed, that is, he received what he describes as mostly satisfactory to exceptional evaluations, although admittedly some were less than average. Appellant also argues that there was statistical and anecdotal evidence showing racial discrimination, amounting to a racially hostile work environment, in the administration of the surgical residency program. We review a grant of summary judgment de novo. The question before, the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying “those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). Once the moving party has met this burden, the non-moving party cannot simply rest on mere denials or the allegations in the pleadings; rather, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e). Although we view the facts in a light most favorable to the non-moving party, in order to defeat a motion for summary judgment, the non-moving party cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit. See, e.g., Ghane v. West, 148 F.3d 979, 981 (8th Cir.1998); Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir.1996). Because appellant’s discrimination claim is based on inferences to be drawn from circumstantial evidence, it is governed by the familiar burden-shifting analysis set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff must first establish a prima facie ease of discrimination, which has" }, { "docid": "23587508", "title": "", "text": "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists “only if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Wade v. Lerner New York, Inc., 243 F.3d 319, 321 (7th Cir.2001) (quotation omitted). The ADEA prohibits an employer from “discharg[ing] any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1) (2003). To establish a claim under the ADEA, a plaintiff-employee must show that “the protected trait (under the ADEA, age) actually motivated the employer’s decision” — that is, the employee’s protected trait must have “actually played a role in [the employer’s decision-making] process and had a determinative influence on the outcome.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). Such a claim may be proven through direct evidence of the employer’s discriminatory motive, or through the indirect, burden-shifting approach articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Lacking any direct evidence of age animus on Lucent’s part, Schuster here relies on the indirect method. Under the McDonnell Douglas approach, a plaintiff-employee must first establish a prima facie case of discrimination. Id. This requires proof of four elements: (1) the employee is a member of the protected class (in an ADEA case, employees over 40 years of age, see 29 U.S.C. § 631(a)); (2) the employee was performing at a satisfactory level; (3) the employee was subject to an adverse employment action; and (4) the employee was treated less favorably than younger, similarly situated employees. Krchnavy, 294" }, { "docid": "10889700", "title": "", "text": "novo, viewing the facts, and drawing all reasonable inferences, in the light most favorable to Quinones, and affirming summary judgment only if there is no genuine issue as to any material fact. Roldan-Plumey, 115 F.3d at 61. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party opposing the motion “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e). “Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon eonclusory allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). As the district court noted, employment discrimination cases alleging disparate treatment ordinarily proceed under the three-step, burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and further explained in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). First, the plaintiff must make out a prima facie case of discrimination. The burden then shifts to the defendant to present a legitimate, non-discriminatory reason, sufficient to raise a genuine issue of material fact as to whether it discriminated against the employee, for the employment decision. Finally, the burden is placed on the plaintiff to demonstrate that the non-discriminatory reason is mere pretext and that the real reason was discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also St. Mary’s Honor Ctr., 509 U.S. at 510-11, 515-16, 113 S.Ct. 2742. The district court assumed arguendo that Quinones had made out a prima facie case and" }, { "docid": "22145835", "title": "", "text": "any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, a court must review the facts in the light most favorable to the non-movant. Walker v. Thompson, 214 F.3d 615, 624 (5th Cir.2000). In this case, we must decide whether the district court correctly determined that Price had failed to present evidence creating a genuine issue of material fact sufficient to defeat FedEx’s motion for summary judgment. Claims of racial discrimination based only on circumstantial evidence are evaluated under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Given, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this three-part scheme, a plaintiff must first establish a prima facie case of discrimination by showing: (1) he belongs to a protected group; (2) he was qualified for the position sought; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside the protected class. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If a plaintiff is successful in establishing his prima facie case, a presumption of discrimination arises and in the second step of the analysis, the burden shifts to the defendant to produce a legitimate, nondiscriminatory justification for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The defendant’s burden during this second step is satisfied by producing evidence, which, “taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Hicks, 509 U.S. at 509, 113 S.Ct. 2742 (emphasis in original). If the defendant articulates a reason that can support a finding that its actions were nondiscriminatory, the mandatory inference of discrimination created by the plaintiffs prima facie case drops out. Hicks, 509 U.S. at 510-11, 113 S.Ct. 2742. Finally, in the third stage of the burden-shifting framework, the" }, { "docid": "22835362", "title": "", "text": "of summary judgment in favor of DART and Chief Rodriguez was improper. Summary judgment is proper' when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Hanchey v. Energas Co., 925 F.2d 96, 97 (5th Cir.1990). In evaluating a summary judgment motion, the district court must draw all reasonable inferences in favor of the non-moving party. Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 189 (5th Cir.1991). We review a district court’s grant of summary judgment de novo. Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir.1998). Race Discrimination Claims Appellants asserted claims of race discrimination against DART under Title VII and 42 U.S.C. § 1981, and against Chief Rodriguez under 42 U.S.C. § 1983. The summary judgment analysis is the same for claims of race discrimination under Title VII, § 1981, and § 1983. Pratt v. City of Houston, 247 F.3d 601, 605 n. 1 (5th Cir.2001); Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 342 (5th Cir.2002). Cases of discrimination based on circumstantial evidence are' subject to the McDonnell Douglas burden-shifting analysis. See Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir.1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To survive summary judgment under McDonnell Douglas, the plaintiff must first present evidence of a prima facie case - of discrimination. Patel, 298 F.3d at 342. If the plaintiff presents a prima facie case, discrimination is presumed, and the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the underlying employment action. See id. If the employer is able to state a legitimate rationale for its employment action, the inference of discrimination disappears and the plaintiff must present evidence that the employer’s proffered" }, { "docid": "23164431", "title": "", "text": "Standard Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demon strate the absence of a genuine issue of material fact.” Id. (quoting Fed.R.Civ.P. 56(c)). In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant’s statements as true and accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505. B. The McDonnell Douglas Framework The Court analyzes Lester’s discrimination and retaliation claims based on race pursuant to the familiar burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, a plaintiff has the burden of establishing a prima facie case of discrimination" }, { "docid": "8516029", "title": "", "text": "marks omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether that burden is met, a court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Nicolo v. Philip Monis, Inc., 201 F.3d 29, 33 (1st Cir.2000). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the non-movant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal quotation marks omitted); see also Fed.R.Civ.P. 56(e). “[A]s to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialwor-thy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal quotation marks omitted). B. In a recent case, Quiñones v. Buick, 436 F.3d 284 (1st Cir.2006), we discussed the framework applicable to this case: [Ejmployment discrimination cases alleging disparate treatment ordinarily proceed under the three-step, burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and further explained in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). First, the plaintiff must make out a prima facie case of discrimination. The burden then shifts to the defendant to present a legitimate, non-discriminatory reason, sufficient to raise a genuine issue of material fact as to whether it discriminated against the employee, for the employment decision. Finally, the burden is" }, { "docid": "11740164", "title": "", "text": "The case was reassigned to the undersigned Judge on April 15, 2013. With the parties’ cross-motions now ripe for review, the Court turns to the parties’ arguments and the applicable legal standards. III. ANALYSIS A. Legal Standard for Summary Judgment Under Rule 56 of the Federal Rules of Civil Procedure, a court may grant summary judgment if the pleadings and any affidavits or declarations show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court “should review all of the evidence in the record ... [and] draw all reasonable inferences in favor of the nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A genuine issue for trial exists if “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “[t]he mere existence of a scintilla of evidence” in support of a nonmoving party’s position is not sufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. B. Legal Standard for Age Discrimination and Retaliation Claims Discrimination claims made pursuant to ADEA and DCHRA are analyzed in the same way as Title VII claims. See Ford v. Mabus, 629 F.3d 198, 201 (D.C.Cir. 2010) (ADEA); Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1246 (D.C.Cir.2011) (DCHRA). First, a plaintiff must estab lish “a prima facie case of discrimination by a preponderance of the evidence.” Stella v. Mineta, 284 F.3d 135, 144 (D.C.Cir.2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). A plaintiff establishes a prima facie case of discrimination in the context of termination of employment by demonstrating that “that" }, { "docid": "5699909", "title": "", "text": "his termination and Bruno’s failure to rehire him violated the ADA. DISCUSSION I. Summary Judgment Federal Rule of Civil Procedure 56(c) provides that summary judgment may be entered in favor of the movant where the entire record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The court examines the substantive law involved to determine which facts are material, and all reasonable doubts regarding facts are resolved in favor of the nonmoving party. Irby v. Bittick, 44 F.3d 949, 953 (11th Cir.1995). The movant is entitled to judgment as a matter of law when the “nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once a party has properly supported its motion for summary judgment, the burden shifts to the nonmovant to create, through significantly probative evidence, genuine issues of material fact necessitating a trial. Id. at 324, 106 S.Ct. at 2553. II. ADA Context The ADA provides that a covered employer shall not discriminate against a qualified individual with a disability in relation to employment decisions. 42 U.S.C. § 12112(a). Although the Eleventh Circuit has not explicitly held so, it is widely agreed that the burden-shifting analysis laid out in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and applied to Title VII cases is similarly followed in deciding claims brought under the ADA. See Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir.1996) (implicitly using burden-shifting framework); McNemar v. The Disney Store, Inc., 91 F.3d 610, 619 (3d Cir.1996); Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758, 761 n. 2 (5th Cir.1996); see also Johnson v. Boardman Petroleum, Inc., 923 F.Supp. 1563 (S.D.Ga.1996); Lewis v. Zilog, Inc., 908 F.Supp. 931 (N.D.Ga.1995). Thus, once plaintiff has established a prima facie case, the burden shifts to the defendant to" }, { "docid": "10287950", "title": "", "text": "The presence of “a mere scintilla of evidence” in the nonmovant’s favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989)(citing Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11). Rather, we will grant summary judgment unless “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256, 106 S.Ct. at 2514. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.l990)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). II. The Method of Proof in Employment Discrimination Cases The parties agree that Plaintiffs claims are governed by the burden shifting framework first set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and clarified in St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). See Olson v. General Elec. Astrospace, 101 F.3d 947 (3d Cir.1996)(ADA claim); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir.1996) (en bane)(Title VII claim); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir.1995)(ADEA claim). This framework has three steps: (1) the plaintiff must first establish a prima facie ease of discrimination; (2) the burden then shifts to the defendant, who must offer a legitimate non-discriminatory reason for the action; and (3) the plaintiff may then “demonstrate that the employer’s stated reason was not its true reason, but merely" }, { "docid": "22284099", "title": "", "text": "(7th Cir.2001). Summary judgment is proper when the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the district court’s decision, we “must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party.” Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir.2000). To avoid summary judgment, Mr. Pugh must set forth specific facts that demonstrate a genuine issue of triable fact and must produce more than a scintilla of evidence to sup port his position. See Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir.2000). A genuine issue of triable fact exists only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). With these standards in mind, we turn to Mr. Pugh’s first claim. B. The ADA Discrimination Claim Mr. Pugh contends that the City violated the ADA when it terminated his employment as animal control officer. Mr. Pugh asserts that the City discharged him based upon its perception that he was an alcoholic and not because it believed that he had misappropriated funds. Under the ADA, an employee may present either direct or indirect evidence of employer discrimination. See Bekker, 229 F.3d at 670. When relying on indirect evidence at the summary judgment stage, as Mr. Pugh does, a plaintiff must first establish a prima facie case of discrimination within the meaning of the ADA, in accordance with the burden-shifting method developed in McDonnell Douglas. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Tyler v. Ispat Inland Inc., 245 F.3d 969, 972 (7th Cir.2001); Bekker, 229 F.3d at 672. To establish a prima facie case of discrimination," }, { "docid": "22348061", "title": "", "text": "the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review a grant of summary judgment de novo, applying the same standard as the district court. Wolf v. Prudential Insurance Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). “[We] examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine [whether] the substantive law was applied correctly,” and in so doing “we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Applied Genetics Int’l, Inc. v. First Affiliated Sec. Inc., 912 F.2d 1238, 1241 (10th Cir.1990). However, “where the non moving party will bear the burden of proof at trial on a dispositive issue” that party must “go beyond the pleadings” and “designate specific facts” so as to “make a showing sufficient to establish the existence of an element essential to that party’s case” in order to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265. DISCRIMINATION CLAIMS Age Discrimination McKnight claims that age was a determinative factor in his termination, thereby violating the Age Discrimination in Employment Act (ADEA.) In evaluating ADEA claims, the Tenth Circuit uses the three-stage analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to prove discrimination when no direct evidence of discrimination exists. At the first stage, the plaintiff must prove a prima facie case of discrimination, i.e., that (1) he is “within the protected age group;” (2) he “was doing satisfactory work;” (3) he “was discharged;” and (4) his position was filled by a younger person. Cone v. Longmont United Hospital Ass’n, 14 F.3d 526, 528-30 (10th Cir.1994). In the second stage, the defendant must carry the burden to provide a legitimate nondiscriminatory reason for plaintiffs" }, { "docid": "23593059", "title": "", "text": "that she was fired for absenteeism was pretext. Summary judgment is appropriate if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All evidence and inferences must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The non-moving party, however, may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Celotex Corp. v. Catrett, 471 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). We review a grant of summary judgment de novo. Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir.1994). The ADA prohibits employment discrimination “against a qualified individual with a disability because of the. disability of such individual.” 42 U.S.C. § 12112(a). A plaintiff may use the burden-shifting frame work identified in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), to prove a claim of intentional discrimination. This method of proof requires a plaintiff to establish her ability to prove a prima facie case. In the absence of an explanation from the employer, this creates a rebuttable presumption of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). The burden of production then shifts to the employer to come forward with a legitimate, nondiscriminatory reason for its actions. Id. Finally, the burden shifts back to the plaintiff to prove that the defendant’s proffered reason is pretextual and that intentional discrimination was the true reason for the defendant’s actions. See Hicks, 509 U.S. at -, 113 S.Ct. at 2747. To establish a prima facie case under the ADA, a plaintiff must show that she is a disabled person within the meaning of the ADA, that she is qualified to perform the essential functions of" }, { "docid": "7844699", "title": "", "text": "moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F.Supp.2d 249, 254 (E.D.N.Y.1999). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ticali, 41 F.Supp.2d at 254. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Summary judgment is warranted when the nonmovant has no evidentiary support for an essential element on which it bears the burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir.1991). II. Racial and Sexual Discrimination Under Title VII Title VII prohibits an employer from discriminating against any individual “with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(l). A claim for employment discrimination is governed by the three-step burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Dean v. Westchester County District Attorney’s Office, 119 F.Supp.2d 424, 430 (S.D.N.Y.2000) (Conner, J.). Under this analysis, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff makes out a prima facie case, a presumption that the employer unlawfully discriminated against the plaintiff is raised and the burden of production then shifts to the employer to “articulate a legitimate, clear, specific and nondiscriminatory reason” for its actions. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995). If the employer does so, the presumption of discrimination drops out and the plaintiff" }, { "docid": "9998422", "title": "", "text": "be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). The non-moving party must then “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Webb, 144 F.3d at 1135. “As to materiality ... [ojnly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Webb, 144 F.3d at 1135. The ADEA prohibits discrimination on account of age against anyone in the protected age group (40 and over). See 29 U.S.C. §§ 623(a)(1), 631(a) (1994). Because Dammen is relying on circumstantial, as opposed to direct, evidence of age discrimination by UniMed, we apply the three-stage approach developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined by the Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir.1997) (en banc) (applying McDonnell Douglas and Burdine in ADEA case). First, the plaintiff has the burden of presenting a prima facie case. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). If the plaintiff does so, a legal presumption arises that the employer unlawfully discriminated against the plaintiff. See Burdine, 450 U.S. at 254, 101 S.Ct. 1089. Then, the employer must “produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.” Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089). The McDonnell Douglas framework only shifts the burden" }, { "docid": "2931028", "title": "", "text": "that portion of the district court’s decision regarding his ADEA claim. II. Discussion We review a grant of summary judgment de novo, considering the facts in the light most favorable to the non-moving party. See Ransom v. CSC Consulting, Inc., 217 F.3d 467, 468 (7th Cir.2000). Summary judgment is proper if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as & matter of law.” Fed. R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The ADEA prohibits intentional discrimination against persons who are age 40 or over. See 29 U.S.C. § 623(a)(1); 29 U.S.C. § 631(a). A plaintiff may show age discrimination directly or, as Rummery attempts to do here, by the indirect, burden-shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this latter method, the plaintiff must first set forth a prima facie case of discrimination. Once he does so, the employer must articulate a nondiscriminatory reason for termination. The plaintiff must then present evidence that would show that the proffered reason was pretextual. See id., 411 U.S. at 802-04, 93 S.Ct. 1817; Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1011-14 (7th Cir.2000). In order to set forth a prima facie case of age discrimination under the ADEA, a plaintiff must show: (1) he was 40 or older, (2) he was performing his job satisfactorily, (3) he was discharged, and (4) substantially younger, similarly situated employees were treated more favorably. Ransom, 217 F.3d at 470; Paluck, 221 F.3d at 1012. Rather than deciding whether Rummery had established a pri-ma facie case, the district court instead skipped ahead, concluding that Illinois Bell had articulated a legitimate reason for his termination. Specifically, the district court concluded that “the facially age-neutral procedures defendant employed in conducting the WRP provide a legitimate, non-discriminatory reason for plaintiffs termination.” See Jackson v." }, { "docid": "11462802", "title": "", "text": "When ruling on a Rule 56 motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The Court must also draw “all justifiable inferences” in the non-moving party’s favor and accept the non-moving party’s evidence as true. Anderson v. LibeHy Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party, however, cannot rely on “mere allegations or denials,” Burke v. Gould, 286 F.3d 513, 517 (D.C.Cir.2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505) (internal quotation and citation omitted), for “concluso-ry allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C.Cir.1999) (internal quotation and citation omitted). If the Court concludes that “the non-moving party has failed to make a sufficient showing on an essential element of h[is] case with respect to which [ ]he has the burden of proof,” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. Legal Analysis Title VII provides that “[a]ll personnel actions affecting employees ... in executive agencies ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Wfiiere, as here, there is no direct evidence of discrimination on one of these impermissible categories, the Court assesses the plaintiffs claim under the framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, “the plaintiff must establish a prima facie case of discrimination” in the first instance, Reeves, 530 U.S. at 142, 120 S.Ct. 2097, after which “the burden shifts to the defendant, who must ‘articulate some legitimate, nondiscriminatory reason’ for the adverse action.’ ” Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007) (quoting McDonnell Douglas, 411 U.S." }, { "docid": "23337542", "title": "", "text": "106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party succeeds, the onus shifts to “the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548. The court must “draw all reasonable inferences in favor of the nonmoving party” and “refrain from making credibility determinations or weighing the evidence.” Turner, 476 F.3d at 343 (citation and internal quotation marks omitted). B. Discriminatory Termination The ADA prohibits an employer from discriminating against a “qualified individual with a disability on the basis of that disability.” 42 U.S.C. § 12112(a) In a discriminatory-termination action under the ADA, the employee may either present direct evidence that she was discriminated against because of her disability or alternatively proceed under the burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII case. Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245 (5th Cir.2013). This analysis first requires the EEOC to establish a prima facie case of discrimination. See E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir.2009). If the EEOC is successful, then LHC must articulate a legitimate, nondiscriminatory reason for terminating Sones. See id. Finally, the burden shifts back to the EEOC to show that LHC’s proffered reason is pretextual. See id. In the Rule 56 context, a prima facie case of discrimination plus a showing that the proffered reason is pretextual is typically enough to survive summary judgment. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (reaching a similar conclusion in the Rule 50 context, which “mirrors” the standard for summary judgment). 1. Prima Facie Discrimination a. Applicable Law The parties to this action disagree over the elements necessary to establish a prima facie case of discrimination. Their disagreemént identifies a discrepancy in the Fifth Circuit’s cases evaluating the requisite nexus between an" }, { "docid": "22570374", "title": "", "text": "found that Fasold had failed to establish a “causal link” between his institution of agency proceedings and the denial of his grievance. App. at 8. This timely appeal followed. II. We review the District Court’s grant of summary judgment de novo, applying the same standard as did the District Court. Union Pac. R.R. Co. v. Greentree Transp. Trucking Co., 293 F.3d 120, 125 (3d Cir.2002). Summary judgment is appropriate where there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. Summary judgment, however, must not be granted where there is a genuine dispute about a material fact, “that is, if the evidence is such that a reasonable jury could .return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). III. To prevail on an intentional age discrimination claim under either the ADEA or the “analogous provision” of the PHRA, Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644 n. 5 (3d Cir.1998), a plaintiff must show that his or her age “ ‘actually motivated’ ” or “ ‘had a determinative influence on’ ” the employer’s adverse employment decision. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). A plaintiff can meet this burden (1) by presenting direct evidence of discrimination, see Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), or (2) by presenting indirect evidence of discrimination that satisfies the familiar three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See generally Fakete v. Aetna, Inc., 308 F.3d 335, 337-38 (3d Cir.2002);" }, { "docid": "13075022", "title": "", "text": "matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of persuasion on the relevant issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party may survive a motion for summary judgment by producing “evidence from which a jury might return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the motion is supported by affidavits, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see also Cray Communications v. Novatel Computer Sys., Inc., 33 F.3d 390, 393-94 (4th Cir.1994) (moving party on summary judgment motion can simply argue the absence of evidence by which the non-movant could prove her case), cert. denied, 513 U.S. 1191, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995). In considering the evidence, all reasonable inferences are to be drawn in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the [fact-finder] could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. Lacking direct evidence of discrimination, Plaintiff must satisfy the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to prevail on her Title VII and ADA claims. First, Plaintiff must establish by a preponderance of the evidence a prima facie ease of discrimination. If Plaintiff meets the low burden of establishing a prima facie case by a preponderance of the evidence, an inference of discrimination arises, and the burden of production shifts to Defendant to offer legitimate, non-discriminatory reasons for the allegedly discriminatory acts. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer meets its burden of articulating a legitimate, non-discriminatory reason for the adverse employment action, the McDonnell Douglas presumption disappears. Id. at 255 n. 10, 101 S.Ct." } ]

[ { "docid": "7695237", "title": "", "text": "an independent judiciary. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60, 102 S.Ct. 2858, 2866, 73 L.Ed.2d 598 (1982). In Marathon, the Supreme Court held that Congress’ broad grant of jurisdiction to the bankruptcy courts under the 1978 Act conferred too much of the Article III judicial power of the United States on non-Article III officers. Responding to this concern, the 1984 Act restricts the final adjudicatory authority of the bankruptcy judges to traditional or “core” bankruptcy matters. In “non-core” proceedings only related to a bankruptcy case, the bankruptcy judge is limited to submitting recommendations to the district court. More significantly, under the 1984 Act, the bankruptcy courts are no longer independent of the district courts but are their subordinate adjuncts. The district court retains primary jurisdiction over bankruptcy proceedings. 28 U.S.C. § 1334. Bankruptcy judges are a “unit” of the district court, and their exercise of adjudicatory authority is subject to the “rule or order of the district court.” 28 U.S.C. § 151. Bankruptcy judges are appointed by Article III courts of appeal and are removable by the judicial council of the Circuit. 28 U.S.C. 152(a)(1) and (e). The district court also retains the power to withdraw any proceeding on its own motion or on the motion of any party. 28 U.S.C. § 157(d). This withdrawal power of the district court may be exercised at any time before a final decision has been rendered by the bankruptcy judge. It is this withdrawal mechanism which assures the direct control and authority of the district court over all bankruptcy proceedings and which protects parties from potential abuse of discretion by the bankruptcy judge in the making of the initial core/non-core determination. (Furthermore, the correctness of any ruling by the bankruptcy judge may also be challenged on appeal.) Such administrative control has been held sufficiént to satisfy Article III precepts in the context of the Federal Magistrates Act. Thus, in Pacemaker Diagnostic Clinic v. Instromedix, Inc., 725 F.2d 537 (9th Cir.,1984), cert. denied, — U.S. —, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984), the Ninth Circuit (En" } ]

[ { "docid": "1461001", "title": "", "text": "other factors pertinent in the “related to” jurisdictional inquiry— when the claim arose, certain relevant provisions in the Confirmed Plan, how far the reorganization has proceeded, what parties are involved, whether state law or bankruptcy law applies, and the indices of forum shopping — all lead to the conclusion that assertion of jurisdiction is not appropriate in this proceeding. IV. CONCLUSIONS OF LAW REGARDING PERMISSIVE ABSTENTION Alternatively, even if this Court does have jurisdiction over the adversary proceeding, ASA has asked this Court to permissively abstain from hearing this proceeding. Permissive abstention is authorized statutorily by 28 U.S.C. § 1334(c)(1), as a reflection of the United States Supreme Court’s decision in Marathon that non-Article III bankruptcy courts should not determine contract claims based on state law. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); In re Republic Reader’s Serv. Inc., 81 B.R. at 425. Even after Congress statutorily placed the bankruptcy courts within the district courts through the 1984 Amendments, bankruptcy courts are not mandated to hear claims “related to” an underlying bankruptcy case when these claims fall under the statutory and case law considerations for permissive abstention. In re Republic Reader’s Serv., Inc., 81 B.R. at 425. “The abstention provisions of the Act demonstrate the intent of Congress that concerns of comity and judicial convenience should be met, not by rigid limitations on the jurisdiction of federal courts, but by the discretionary exercise of abstention when appropriate in a particular case.” In re Wood, 825 F.2d 90, 93 (5th Cir.1987). The broad grant of jurisdiction found in 28 U.S.C. Section 1334(a) is only over the actual bankruptcy case itself. In re Republic Reader’s Serv. Inc., 81 B.R. at 426. Jurisdiction over “civil proceedings arising under Title 11, or arising in or related to cases under Title 11” is concurrent with “courts other than the district court....” 28 U.S.C. § 1334(b). This provision narrows the grant of exclusive jurisdiction exercised by the bankruptcy court. 28 U.S.C. § 1334(c)(1) reads: “[Njothing in this section prevents a district court in the" }, { "docid": "22194758", "title": "", "text": "Abstention within the context of a bankruptcy proceeding, in my opinion, differs importantly from abstention in a nonbank-ruptcy context. Support for this proposition can be drawn from the statutory codification of abstention in 28 U.S.C. § 1334(c). While authority for abstention from a nonbankruptcy case depends solely upon case law, abstention by the district court in bankruptcy proceedings is specifically authorized by section 1334(c)(1) and mandated by section 1334(c)(2). The intent of Congress is that abstention must play a far more significant role in limiting those matters, which although properly brought within the reach of jurisdiction under Title 11, are nonetheless best left for resolution to a state or other nonbankruptcy forum. The 1984 amendments to the abstention provisions contained in section 1334(c) thus reflect a clear expansion of the abstention doctrine within the realm of bankruptcy. As previously codified in 28 U.S.C. § 1471(d), permissive abstention was warranted only “in the interest of justice.” Permissive abstention under section 1334(c)(1) is authorized not only in the interest of justice, but also “in the interest of comity with state courts or respect for state law.” This extension of the abstention doctrine logically resulted from the Supreme Court’s decision that a non-Article III bankruptcy court could not constitutionally determine a contract claim based on state law brought by the debtor against a third party. Northern Pipelines Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The fact that non-Article III bankruptcy courts must guard against unconstitutionally exercising Article III powers represents yet another distinguishable characteristic between abstention in the context of a bankruptcy case from abstention as applied in a nonbankruptcy case. Congress has chosen not to grant bankruptcy courts Article III powers, opting instead under 28 U.S.C. § 1334 to vest jurisdiction in the district court. The reach of that jurisdictional grant has been interpreted broadly within this Circuit. The Fifth Circuit has recently adopted the Third Circuit’s definition of “related” in the phrase “related to a case under Title 11”, which expresses the outer limits of jurisdiction under Title 11: “whether the" }, { "docid": "10698269", "title": "", "text": "struck the defendant’s answer as a result of the defendant’s misconduct. On appeal to the Second Circuit, the defendant argued that the bankruptcy court lacked the authority to enter the default judgment, arguing that only an Article III judge could do so. The Second Circuit rejected that argument. The defendant also asserted that the claim on which judgment was entered was a “non-core” claim and accordingly should not have been adjudicated by an Article I bankruptcy judge. Id. at 1137. The Second Circuit concluded that it made no difference whether the claim was core or non-core. Rather, the court found it dispositive that the defendant had impliedly consented to the bankruptcy judge entering a final judgment: [W]e need not resolve [the issue whether the claim was core or non-core], for even if the instant action was not a “core” proceeding, 28 U.S.C. § 157(c)(2) empowers the bankruptcy court to enter final judgment in a “non-core” but “related” matter, providing both parties consent to the court’s jurisdiction. We conclude that Sasson’s failure to object to Judge Lifland’s assumption of “core jurisdiction” at any point in these extensive proceedings before the bankruptcy court and the further failure to object to any part of the appeal process in the district court constitutes consent to the final adjudication of this controversy before the bankruptcy court. We are cognizant that a court should not lightly infer from a litigant’s conduct consent to have private state-created rights adjudicated by a non-Article III bankruptcy judge. Indeed, to do so would violate the spirit of Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which emphasizes that the power to adjudicate private rights, such as the right to recover contract damages, cannot be lodged in a court lacking “the essential attributes of the judicial power.” Id. at 1137-38. While Men’s Sportswear was decided long before Stem, the Second Circuit identified the existence of a constitutional right to an Article III tribunal, based on the Northern Pipeline decision, but nonetheless concluded that implied consent can supply a proper basis" }, { "docid": "10698262", "title": "", "text": "Ill, § 1. Pursuant to Article III, Congress may not “withdraw from [Article III] judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty.” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 18 How. 272, 15 L.Ed. 372 (1856). In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), the Supreme Court struck down as unconstitutional the 1978 Bankruptcy Act’s provisions vesting final adjudicative authority in the bankruptcy court—an Article I court—over certain state—law claims asserted by the debtor against a third party. The Supreme Court held that Article III required final adjudicative authority over matters within the competence of the Article III judiciary to be vested in an Article III court, and not removed to tribunals where judges lack the Article III protections of life tenure and non-diminution of salary. Id. at 80-81, 102 S.Ct. 2858. The Court recognized “a category of cases involving ‘public rights’ that Congress could constitutionally assign to ‘legislative’ courts [i.e., Article I bankruptcy courts] for resolution,” but also held that Article III prohibits bankruptcy courts from entering final judgments on matters of purely private rights. Id. at 81, 102 S.Ct. 2858 (emphasis added). In response to Northern Pipeline, Congress enacted the Bankruptcy Amendments and Federal Judgeship Act of 1984 (the “1984 Act”), which allows district courts to refer all cases, and proceedings arising under, arising in or related to a case under title 11 to bankruptcy judges. 28 U.S.C. § 157(a). Importantly, the 1984 Act also divided bankruptcy matters into “core” and “non-core.” See 28 U.S.C. § 157(b)(1), (c)(1). Section 157 provides a non-exhaustive list of examples of core matters, including avoidance actions and counterclaims by the estate against persons filing claims against the estate. Id. § 157(b)(2)(C), (F) and (H). The statute provides that bankruptcy courts may hear core matters and non-core matters that are “otherwise related” to a case under title 11, but they only have statutory authority to enter final judgments in core proceedings. For" }, { "docid": "2619674", "title": "", "text": "Bankruptcy Court may hear a proceeding which involves a matter that is not considered a core proceeding, but otherwise is related to a bankruptcy case. However, when dealing with a related matter, the bankruptcy court can do no more than submit proposed findings of fact and conclusions of law for a de novo review by the District Court. 28 U.S.C. Section 157(c)(1). As an alternative, the District Court, with consent of the parties, may refer the case back to the Bankruptcy Court for a final disposition, subject to appeal. 28 U.S.C. Section 157(c)(2). Section 157(b)(2) provides a non-exclusive list of matters which are core proceedings. However, in order to determine whether a matter before the Court is a core proceeding, Section 157(b)(2) must be read in conjunction with the Supreme Court case of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). In Northern Pipeline, the Supreme Court found the Bankruptcy Code imper-missibly granted the bankruptcy court jurisdiction to enter final orders and judgments in matters that only state courts or Article III Federal Courts could decide. To correct the constitutional infirmities of the Code, Congress created the present scheme of deciding matters which involve title 11. Unfortunately, the present scheme appears to offer little change other than in form and terminology, thus rendering it suspect to the same infirmities which brought about the decision in Northern Pipeline: “Nor may Marathon [Northern Pipeline] be circumvented by device, such as 28 U.S.C. 157(b)(2)(h) providing for reference by an Article III judge. Does it not stand to reason that if a non-Article III judge cannot hear a matter, because of Marathon [Northern Pipeline], an Article III judge, then, cannot make a silk purse out of a sow’s ear by the perfunctory act of assuming jurisdiction and then referring it to him who cannot try it in the first place.” In re TWI, Incorporated, 51 B.R. 470, 13 BCD 287 (Bkrtcy.E.D.Va.1985). Compare In re Pied Piper Casuals, Inc., 50 B.R. 549, 13 BCD 290 (Bkrtcy.S.D.N.Y.1985). In the case at bar, the underlying Complaint" }, { "docid": "335665", "title": "", "text": "the district court shall abstain from hearing such proceeding if an action is commenced, and can timely be adjudicated, in a State forum of appropriate jurisdiction.” The enactment of section 1334(c)(2) was an apparent attempt by Congress to remedy the perceived constitutional infirmities in the bankruptcy jurisdictional scheme that Congress had enacted in 1978 as part of the Bankruptcy Reform Act. Those infirmities were exposed by the Supreme Court in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). See discussion, Branded Products, 154 B.R. at 941-42. In Marathon, the Court ruled that a non-Article III court could not hear matters that concern “private rights” as opposed to so-called “public rights” which ostensibly lie at the “core” of bankruptcy jurisdiction. 458 U.S. at 83-87, 102 S.Ct. at 2877-80. Congress addressed the Marathon problem by enacting 28 U.S.C. § 157(c)(1), which ensures that final orders in matters concerning “private rights” are entered by an Article III court unless the parties consent otherwise. See Branded Products, 154 B.R. at 942. Section 1334(c)(2) ostensibly furthers the same goal by requiring the federal courts to abstain if the matter involves primarily state-created rights and can be timely adjudicated in a state forum. Thus, though federal jurisdiction is present, Congress has decreed that it cannot be exercised in certain circumstances. 28 U.S.C. §§ 157(c)(1), 1334(c)(1), 1334(c)(2). Instead, the federal courts must “decline to exercise” their jurisdiction (the effect of “abstaining”). That usually means that the case before the court is dismissed. 17AC. Wright, A. MilleR, E. Cooper, Federal Pract. & Proc., Jurisdiction 2d, § 4245 at 102 (2nd ed.1988); see also Burford v. Sun Oil Co., 319 U.S. 315, 334, 63 S.Ct. 1098, 1107, 87 L.Ed. 1424 (1943); New Orleans Public Serv. Inc. v. City of New Orleans, 798 F.2d 858 (5th Cir.1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 515 (1987) (cases applying abstention in other federal contexts). And this is where a small difficulty arises. The usual remedy for abstention is not the same as the remedy for remand. In" }, { "docid": "22194759", "title": "", "text": "comity with state courts or respect for state law.” This extension of the abstention doctrine logically resulted from the Supreme Court’s decision that a non-Article III bankruptcy court could not constitutionally determine a contract claim based on state law brought by the debtor against a third party. Northern Pipelines Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The fact that non-Article III bankruptcy courts must guard against unconstitutionally exercising Article III powers represents yet another distinguishable characteristic between abstention in the context of a bankruptcy case from abstention as applied in a nonbankruptcy case. Congress has chosen not to grant bankruptcy courts Article III powers, opting instead under 28 U.S.C. § 1334 to vest jurisdiction in the district court. The reach of that jurisdictional grant has been interpreted broadly within this Circuit. The Fifth Circuit has recently adopted the Third Circuit’s definition of “related” in the phrase “related to a case under Title 11”, which expresses the outer limits of jurisdiction under Title 11: “whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy,” Wood v. Wood (In re Wood), 825 F.2d 90, 93 (5th Cir.1987) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984 (3rd Cir.1984)). Although the Fifth Circuit expressed concern that an overbroad interpretation of section 1334(b) would bring into federal court matters best left to the decision of state courts, they also proposed the means to meet that concern: ... There is no necessary reason why that concern must be met by restrictive interpretations of the statutory grant of jurisdiction under section 1334. The Act grants the district court broad power to abstain whenever appropriate “in the interest of justice, or in the interest of comity with State courts or respect for State law”. The abstention provisions of the Act demonstrate the intent of Congress that concerns of comity and judi cial convenience should be met, not by rigid limitations on the jurisdiction of federal courts, but by the discretionary exercise of abstention when appropriate in a particular case.... Wood" }, { "docid": "10201152", "title": "", "text": "a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. We fail to see how § 1334(c)(2) can have any possible application here. First, there is not yet pending in this Court any “proceeding” upon which the statute can operate. All that is pending is a Chapter 11 “case” over which this Court (by reference from the District Court under 28 U.S.C. § 157) has original and exclusive jurisdiction pursuant to 28 U.S.C. § 1334(a). There will be a “proceeding” pending here when a claim is filed by or on behalf of Mrs. Dovydenas and an objection is made thereto. But even then § 1334(c)(2) will be wide of the mark because the statute applies only to “related” proceedings, not proceedings “arising under Title 11” or “arising in a case under Title 11.” Mrs. Do-vydenas’ claim would not be a “related proceeding.” That category encompasses claims held by a debtor prior to the bankruptcy filing and civil proceedings between third parties. 1 COLLIER ON BANKRUPTCY § 3.01[3][b] (15th ed. 1986). The classic related proceeding is represented by Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which involved a pre-filing cause of action for breach of contract and other matters. The court in Marathon held that bankruptcy judges without lifetime tenure did not have constitutional jurisdiction over such causes of action. We do not, however, doubt our jurisdiction over Mrs. Dovydenas’ claim. Mrs. Dovydenas also requests that this Court abstain as a matter of discretion under the permissive abstention provisions of 28 U.S.C. § 1334(c)(1), which provides as follows: Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or" }, { "docid": "13211998", "title": "", "text": "that the Congress was deliberately rejecting the general rule that courts with jurisdiction over a matter must take jurisdiction. S.Rep. No. 95-989, 95th Cong.2d Sess. 35 (1978); H.Rep. No. 95-595, 95th Cong., 1st Sess. 325 (1977), U.S.Code Cong. & Admin. News 1978, p. 5787. . The law is unsettled as to the correct procedure for abstaining under this section. Plain language of the statute, dating from 1978, confers the abstention power on the bankruptcy judge and was not amended in connection with the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. 98-353, 98 Stat. 333, which made supervision by Article III judges a talisman of the constitutionality of bankruptcy judges in the wake of Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The procedural conundrum is the prohibition of review of the abstention decision by appeal or otherwise. 11 U.S.C. § 305(c). If supervision by Article III judges is essential for the constitutionality of the bankruptcy court, then an Article III judge must be able to pass upon an abstention decision. Either of two procedural alternatives would accomplish this result. First, the section might be interpreted, consistent with its plain language, to leave the initial decision to the bankruptcy judge but, construing the statute so as to be constitutional, permit review by the district court. Or, it might be interpreted to require that the district court actually make the initial determination, perhaps borrowing the report and recommendation procedure from Bankruptcy Rules 5011 and 9033. . 28 U.S.C. § 1334(c): 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.... Any decision to abstain made under this subsection is not reviewable by appeal or otherwise. . Some bankruptcy courts have imported the much more restrictive standards used in non-statutory abstentions when preparing reports and recommendations. E.g., Eastern Air Lines, Inc." }, { "docid": "5694208", "title": "", "text": "further proceedings and trial in the district court on the grounds that the Bankruptcy Court is not authorized under the Bankruptcy Act or permitted under Article III to preside over a jury trial in non-core proceedings. In the alternative, ICSP contends that although the Bankruptcy Court may be permitted to conduct a jury trial, if either party objected to the outcome a de novo jury trial in the district court would be required. As such a result would cause a waste of judicial resources, ICSP urges this court to exercise its sound discretion and withdraw the reference from the Bankruptcy Court for a trial in the district court. Conclusions The Bankruptcy Amendments and Federal Judgeship Act of 1984 (the “1984 Amendments”) were enacted in response to the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which found unconstitutional the 1978 Bankruptcy Reform Act’s broad delegation of Article III powers to the Article I Bankruptcy Court. In Northern Pipeline, the Supreme Court held that the power given to the Bankruptcy Court to finally adjudicate claims or causes of action based on state or common law was not constitutionally permissible under Article III. The 1984 Amendments attempted to redress the constitutional infirmities by distinguishing between “core” proceedings and claims under Title 11, and “non-core” proceedings or claims “related” to Title 11 cases, that is, claims arising under traditional state law. Under 28 U.S.C. § 157(b)(1), bankruptcy judges may hear and enter final orders in all cases under Title 11 and in all core proceedings, subject to review under section 158. That review is made using the traditional standard of appellate review. Under section 157(c), bankruptcy judges may also hear proceedings that are not core proceedings but are otherwise related to a case under Title 11. Non-core proceedings, however, are subject to provisions similar to those governing references to magistrates under the Federal Magistrates Act, 28 U.S.C. §§ 631-639 (1982). Under section 157(c), a bankruptcy judge may hear a non-core proceeding but may not enter a final order" }, { "docid": "9982623", "title": "", "text": "district judge. The bases asserted for that relief are that the bankruptcy court either lacks subject matter jurisdiction in this matter, or if vested with such jurisdiction, cannot constitutionally exercise it. The Defendants also contend that the bankruptcy court cannot exercise personal jurisdiction over these Defendants consistent with “minimum contacts” principles established by case law. For those same jurisdictional concerns and because the complaint allegedly fails to state a cause of action, the Defendants have moved for dismissal of the action. The Defendants also seek abstention by the bankruptcy court, either on a discretionary basis pursuant to 28 U.S.C. § 1334(c)(1) or on a mandatory basis pursuant to 28 U.S.C. § 1334(c)(2). The reasons stated for such relief are considerations of comity, interests of justice, involvement of state law issues and the inability of the plaintiff to have brought this action initially in a federal court in Ohio. Finally, and perhaps most importantly for disposition of the other issues raised, the Defendants alternatively seek a deter mination from the Court whether this proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2) in which a bankruptcy judge may enter a final order or whether this is a non-core proceeding pursuant to 28 U.S.C. § 157(c), otherwise related to a case under title 11, in which final orders must be entered by a district judge. III. CONCLUSIONS OF LAW A. CORE/NON-CORE DETERMINATION Procedures pursuant to which a bankruptcy judge must decide matters filed with the bankruptcy court are provided in 28 U.S.C. § 151-158 as part of the statutory response to constitutional concerns expressed by the Supreme Court of the United States in Northern Pipeline Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Those concerns emanated from the expanded jurisdiction granted by statute to bankruptcy courts in the Bankruptcy Reform Act of 1978. That Act empowered bankruptcy judges, appointed only for 14-year terms of office to a court established as an adjunct to the district court, to exercise all bankruptcy jurisdiction granted to the district courts without oversight by judges appointed under Article" }, { "docid": "14205976", "title": "", "text": "to enter a final, appeal-able judgment. Because the bankruptcy court lacked Article III authority to enter final judgment on BPRE’s claims, we vacate the district court’s judgment and remand to the district court. We thus do not reach the merits of BPRE’s appeal. I. The Bankruptcy Code was enacted in 1984 in response to Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which had held the 1978 Bankruptcy Act unconstitutional. Under the 1984 Code, district courts may refer “cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11” to the bankruptcy court. 28 U.S.C. § 157(a). Bankruptcy judges are appointed by the courts of appeals to fourteen-year terms, 28 U.S.C. § 152(a)(1), and do not receive the constitutional tenure and salary protection of Article III judges, N. Pipeline, 458 U.S. at 61, 102 S.Ct. 2858. “In short, there is no doubt that the bankruptcy judges created by the Act are not Art. Ill judges.” Id. Section 157(b)(1) designates certain cases as “core proceedings” and authorizes a bankruptcy court to “enter appropriate orders and judgments” in such cases. In a core proceeding, an aggrieved party may appeal the judgment of the bankruptcy court to the district court, which applies a de novo standard of review to the conclusions of law and the clearly-erroneous standard to findings of fact. 28 U.S.C. § 158(a). The Code also gives bankruptcy courts the authority to hear non-core proceedings that are “otherwise related to a case under title 11.” § 157(c)(1). For non-core proceedings, the bankruptcy court submits proposed findings of fact and conclusions of law to the district court, which then reviews the submissions de novo. Id. With consent of the parties, however, the bankruptcy court may enter final, appealable judgments in non-core proceedings. § 157(c)(2). II. BPRE’s adversary complaint stated that the proceedings were “non-core.” BPRE also requested “judgment, after trial or final hearing,” on the claims against RML. BPRE filed, on the same day, a “Statement Regarding Consent”" }, { "docid": "4607608", "title": "", "text": "this motion pursuant to § 157(b)(3) which states: The bankruptcy judge shall determine, on the judge’s own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11. A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law. The distinction between core and non-core proceedings governs what body makes a final determination on the merits. Under 28 U.S.C. § 157(a), (b)(1), and (c), the bankruptcy judge has authority to hear both core and non-core proceedings. However, in non-core proceedings, the bankruptcy judge submits proposed findings of fact and conclusions of law to the district court, which makes the final determination following a de novo review. Congress adopted this bifurcated approach in order to remedy the unconstitutional grant of jurisdiction to non-Article III bankruptcy judges the Supreme Court declared existed under The Bankruptcy Reform Act of 1978. Northern Pipeline Construction Co. v. Marathon Pipe Line, Co., 458 U.S. 50, 102 S.Ct. 2858, 78 L.Ed.2d 598 (1982). The Marathon Court held that the contract claim at issue involved a private right existing between individuals independent of the bankruptcy case. 458 U.S. at 71-72, 102 S.Ct. at 2871-72. Thus, the expansion of the bankruptcy judge’s powers to include the resolution of such claims, constituted an impermissible delegation of power. 458 U.S. at 84, 102 S.Ct. at 2878. The Court held that only public rights could be removed from Article III courts and assigned to legislative courts. 458 U.S. at 69, 102 S.Ct. at 2870. In a proceeding factually on point with the proceeding at bar, the bankruptcy court held that an action for underpayment of pre-petition freight charges was not a core proceeding. In re Maislin Industries, U.S., Inc., 50 B.R. 943, 948-50 (Bankr. E.D.Mich.1985). Finding the language of 28 U.S.C. § 157(b) and (c) to be somewhat unclear in distinguishing between core and non-core proceedings, the Court utilized the underlying principles of Northern Pipeline." }, { "docid": "142299", "title": "", "text": "discharge. IT IS SO ORDERED. . The United States Constitution, Article I, § 8 Clause 4 states \"[t]he Congress shall have power ... to establish uniform laws on the subject of bankruptcies throughout the United States.\" See also, In re: Bonwit, Lennon & Co., 36 F.Supp. 97 (D.C.Md.1940); In re: Wildman, 30 B.R. 133 (Bkrtcy.Ill.1983); Hellman Lumber Co., Inc. v. Landrum, 639 S.W.2d 379 (Ky.App.1982). . 11 U.S.C. § 101 et seq. . All to often bankruptcy courts have had to begin the disposition of a case with an explanation of the legitimacy of their jurisdiction. This is due in no small part to confusion on the issue. See Northern Pipeline Construction Company v. Marathon Pipeline Company, 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); In re DeLorean, 49 B.R. 900 (Bkrtcy.E.D.Mich.1985); 28 U.S.C. §§ 1334 and 157; and Countrymen, Scrambling to Define Bankruptcy Jurisdiction: The Chief Justice, The Judicial Conference, and the Legislative Process, 22 Harv.J. on Legis. 1 (1985). .That the state court has no authority to determine the dischargeability of the debt that may have resulted from the trial is well settled. The Wayne County Circuit Court's grant of jurisdiction is codified in M.C.L. Const. Art. 6 § 1. The jurisdictional grant of the bankruptcy court is given by Congress pursuant to the United States Constitution Article I Section 8 Clause 4 and in codified in 28 U.S.C. § 1334 and 157. Since Congress has spoken on the matter of the dis-chargeability of debts in debtor/creditor relationships, the grant of jurisdiction to this court is paramount to that of the state court. See U.S. Const. Art. 6 Cl. 2. . 28 U.S.C. § 1334(c)(1) reads in full: \"(c)(1) Nothing in this section prevents a district court in the interest of justice, or in the interest of conformity 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. . This Court discussed the three basic types of abstention for 28 U.S.C. §§ 1334(c)(1) and (2) in" }, { "docid": "18165950", "title": "", "text": "Appeal: Bankruptcy Stay A bankruptcy filing imposes an automatic stay of all litigation against the debtor. 11 U.S.C. § 362(a). A bankruptcy court \"shall” lift the automatic stay “for cause.” Id. § 362(d)(1). “Cause” has no clear definition and is determined on a case-by-case basis, In re MacDonald, 755 F.2d 715, 717 (9th Cir.1985). Where a bankruptcy court may abstain from deciding issues in favor of an imminent state court trial involving the same issues, cause may exist for lifting the stay as to the state court trial. See In re Castlerock Properties, 781 F.2d 159, 163 (9th Cir.1986). The circumstances under which a bankruptcy court should abstain are spelled out in 28 U.S.C. § 1334, part of the 1984 amendments to the Bankruptcy Act of 1978. Congress passed the amendments to heal constitutional infirmities in the Act’s jurisdictional provisions found by the Supreme Court in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Bankruptcy Amendments and Federal Judgeship Act of 1984, Statements by Legislative Leaders, 1984 U.S.Code Cong. & Admin.News 576. The Court held in Marathon that a traditional state common-law action subjected to federal adjudication because of a bankruptcy filing must be heard by an Article III judge. See id. at 92, 102 S.Ct. at 2882 (Burger, C.J., dissenting) (describing the plurality’s holding as limited by the concurring opinion); Castlerock, 781 F.2d at 160 n. 1. Section 1334 sets forth when a bankruptcy court must abstain and when it may abstain in favor of state court adjudication of an issue. Because the parties do not address the propriety of mandatory abstention under 28 U.S.C. § 1334(c)(2) and because we reverse on permissive abstention grounds, we need not consider mandatory abstention. Section 1334(c)(1) governs permissive abstention: 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 the State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. A Texas" }, { "docid": "7654721", "title": "", "text": "ORDER HAROLD L. MURPHY, District Judge. This case represents one of many suits brought against non-resident defendants by Chemical Bank, as assignee of WWG Industries, to collect on accounts allegedly-owed WWG, the debtor in bankruptcy in the underlying bankruptcy action. The defendant in this case objects to the bankruptcy court’s findings as to jurisdiction and venue, as to certain set-offs and rebates, and as to its liability for debts incurred by a related corporation. The defendant has filed its objections pursuant to the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L.No. 98-353, 1984 U.S. Code Cong. & Ad. News (98 Stat.) 333, 341 (to be codified at 28 U.S.C. § 157(c)(1)). After reviewing de novo the issues raised by defendant’s objections, the Court adopts in part the findings and conclusions of the bankruptcy court. JURISDICTION Defendant first objects to the bankruptcy court’s exercise of subject matter jurisdiction in the wake of the Supreme Court’s opinion in Northern Pipeline Construction Company v. Marathon Pipeline Company, 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Under the newly enacted amendments to the Bankruptcy Act, however, jurisdiction in this type of case is vested in the Article III district court. The Constitution grants Article III courts the power to determine cases that arise under the laws of the United States and to decide controversies between citizens of different states. U.S. Const, art. 3, § 2, cl. 1. Whether this case involves a “federal question” or “diversity of citizenship” or both, Congress clearly had the power to place subject matter jurisdiction of this case in the United States District Court. This was accomplished in Section 101 of the new Bankruptcy Amendments. Defendant also objects to the Court’s exercise of personal jurisdiction over the defendant in this case. In light of the Marathon case, this objection raises questions that have not yet been fully addressed. Prior to Marathon, it was possible to posit that the bankruptcy courts were federal Article I tribunals created by Congress pursuant to Article I of the Constitution. See U.S. Const, art. I, § 8, cl. 4 and 18;" }, { "docid": "6567838", "title": "", "text": "in isolation from general statutory provisions authorizing bankruptcy courts to adjudicate controversies. Accordingly, we turn first to those general jurisdictional provisions. Original jurisdiction over bankruptcy is conferred on federal district courts under 28 U.S.C. § 1334. This section provides for exclusive original jurisdiction in federal district court over cases filed under Title 11 U.S.C. and nonexclusive original jurisdiction for proceedings (1) arising under Title 11, (2) arising in eases under Title 11, and (3) related to cases under Title 11. Although a proceeding falling within any one of the foregoing categories is sufficient to vest the district court with subject matter jurisdiction, the distinction between “arising under” and “arising in” on one hand and “related to” cases on the other is relevant to determine the authority of a bankruptcy court to adjudicate the proceeding and enter final enforceable orders. This distinction is set forth in 28 U.S.C. § 157 which was enacted in response to Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Marathon held that the referral of the district court’s entire subject matter jurisdiction to non-article III decision makers under 28 U.S.C. § 1471(c) [the predecessor to § 157] was unconstitutional. Section 157 provides in part that “[b]an-kruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a ease under title 11 ... and may enter appropriate orders and judgments....” 28 U.S.C. § 157(b)(1). A bankruptcy judge may also hear “a proceeding that is not a core proceeding but that is otherwise related to a case under title 11.” However, in “related to” proceedings, unless the parties otherwise consent, the bankruptcy court is only empowered to propose findings of fact and conclusions of law that are submitted to the district court for de novo review. Id. at § 157(c)(1), (2). Accordingly, in the absence of any provision expressly excluding federal and state income taxation from the adjudicative power of bankruptcy courts, determination of whether a bankruptcy court can adjudicate tax issues would be evaluated under" }, { "docid": "18782323", "title": "", "text": "therefore declines to conduct one. Therefore, this Court will administer the related proceeding up to the determination of final entry, pursuant to 28 U.S.C. § 157(e)(1). It will conduct a non-jury trial on the underlying complaint, and will submit its proposed findings of fact and conclusions of law to the District Court for the Northern District of Indiana for entry of final judgment. Accordingly, the Court now sets a pre-trial conference on the underlying complaint for April 10, 1985, at 2:45 p.m., in Room 226, U.S. Courthouse, 204 South Main Street, South Bend, Indiana. SO ORDERED. . In Marathon the debtor Northern Pipeline had filed suit in the bankruptcy court against Marathon Pipe Line, seeking damages for alleged breaches of contract and warranty, and alleged misrepresentation, coercion and duress. The contract underlying these allegations involved construction of pipelines, and the debtor’s state common law claims arose before the bankruptcy commenced. The Supreme Court held that Northern’s rights must not be adjudicated in the bankruptcy court, a non-Article III adjunct. Northern Pipeline Const. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). . Both provisions were approved by Congress and by the Supreme Court after the Marathon decision. . An exception to the rule is found in 28 U.S.C. § 157(c)(2), which empowers the district court to refer a related proceeding to the bankruptcy judge for hearing and final disposition if all parties so consent. . The parties also have choices at this stage. A party may still timely file a motion for withdrawal of reference in the district court pursuant to 28 U.S.C. § 157(d). Or a party may challenge the Bankruptcy Court's determination that the underlying complaint is a related proceeding by filing an interlocutory appeal to the District Court under Rule 8001(b) of Bankruptcy Procedure. 28 U.S.C. § 158(a). In addition, the parties may consent to the District Court's reference of the proceeding to the Bankruptcy Court for final determination. 28 U.S.C. § 157(c)(2)." }, { "docid": "13779428", "title": "", "text": "has appealed. III. ANALYSIS No factual findings of the bankruptcy court are contested on appeal. The conclusions of law of both the bankruptcy and district court are subject to de novo review. Criswell v. Hensley, 102 F.3d 1411, 1414 (5th Cir.1997). A. Southmark’s Motion to Abstain Lurking like a troll beneath a bridge, procedural complexities bedevil a straight path to analysis of this ease. That the bankruptcy court has some kind of jurisdiction over this malpractice action against court-appointed professionals is not in doubt. But what the court can do with its jurisdiction depends first on whether the malpractice case is a “core” bankruptcy matter or one that is “related to” Southmark’s reorganization case. If the suit against Coopers is merely “related to” bankruptcy, the bankruptcy court was required to abstain from hearing it. 28 U.S.C. § 1334(c)(2). If, however, the controversy lies “at the core of the federal bankruptcy power,” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71, 102 S.Ct. 2858, 2870-71, 73 L.Ed.2d 598 (1982), the bankruptcy law permits but does not require abstention. 28 U.S.C. § 1334(c)(1). The root issue is as simple— and complex — as that. Three procedural obstacles must be cleared before the merits discussion can proceed. First, although this court may review the bankruptcy court’s decision not to abstain, our jurisdiction is an historical anomaly. For bankruptcy cases commenced after the 1994 amendments to the bankruptcy law, decisions either to abstain or not to abstain are not, with very limited exceptions, reviewable on appeal. Southmark’s case predates this amendment and was filed when decisions not to abstain were reviewable on appeal. The standard on appeal is abuse of discretion. • In re Howe, 913 F.2d 1138, 1143 n. 6 (5th Cir.1990). Second, we note, only to reject out of hand, Coopers’ assertion that statutory abstention does not apply to cases removed to federal court on the basis of bankruptcy jurisdiction. 28 U.S.C. § 1452. There is no textual support in the statute for this position, only a handful of bankruptcy court opinions support it, and the vast majority" }, { "docid": "12795755", "title": "", "text": "BREYER, Circuit Judge. Assume that B, a bankrupt company in the midst of federal bankruptcy proceedings, brings an ordinary state law contract claim against D, a private party, seeking money that D allegedly owed B before B went bankrupt. In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), the Supreme Court held that federal bankruptcy judges lacked the constitutional power to adjudicate this controversy because they “do not enjoy the protections constitutionally afforded to Art. Ill judges.” Id. at 60, 102 S.Ct. at 2866. This appeal raises a related question under Article III. It asks whether a federal bankruptcy court that is statutorily authorized to hear and determine “core” bankruptcy proceedings, 28 U.S.C. § 157(b) (1982 ed., Supp. Ill), may adjudicate a state law claim arising from a contract that 1) was made after B went bankrupt and 2) was made as part of B’s efforts to liquidate estate assets. In our view, the matter of timing and the relation to judicial administration of the bankrupt’s estate make a critical constitutional difference between Marathon and the present case. Marathon notwithstanding, the bankrupt company’s legal action to collect a “post-petition” debt, brought as part of efforts to liquidate the estate, is a “core” proceeding that the bankruptcy court has the constitutional power to decide. I Marathon. To understand the legal issue in this case, one must begin with Marathon, the case in which the Supreme Court held unconstitutional 28 U.S.C. § 1471 (1976 ed., Supp. IV), a key jurisdictional provision of the Bankruptcy Act of 1978. The specific issue in that case was whether the bankruptcy court possessed the constitutional power to adjudicate a bankrupt’s state law contract claim — a claim that arose before the filing of the bankruptcy petition. A plurality of four justices reasoned that bankruptcy courts are not Article III courts because their judges do not have life tenure or protection against salary diminution. It then reviewed the three “exception[s] from the general prescription of Art. Ill” — exceptions that, historically speaking, have been limited to" } ]

[ { "docid": "8261805", "title": "", "text": "for federal savings associations. OTS intends to give federal savings associations maximum flexibility to exercise their lending powers in accordance with a uniform federal scheme of regulation. Accordingly, federal savings associations may extend credit as authorized under federal law, including this part, without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section.... 12 C.F.R. § 560.2(a) (emphasis added); see Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001, 1005 (9th Cir.2008). In the absence of a presumption against preemption, and given the strong preemption language contained in the OTS regulations, the Ninth Circuit has held that HOLA preempts all state regulation of savings associations under the doctrine of field preemption. See Conf. of Fed. Sav. & Loan Ass’ns, 604 F.2d at 1257, 1260; see also Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). The OTS regulations also contain the framework for analyzing whether a state law is preempted under HOLA. If the state law in question is of a type listed in paragraph (b) of § 560.2, “the analysis will end there; the law is preempted.” OTS, Final Rule, 61 Fed.Reg. 50951, 50966-67 (Sept. 30, 1996). Included in paragraph (b) are two categories relevant to Ms. Munoz’s claims. Section 560.2(b)(5) requires preemption of state laws governing “Loan-related fees, including without limitation, initial charges, late charges, prepayment penalties, servicing fees, and over limit fees.” Section 560.2(b)(9) requires preemption of state laws governing “Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents.... ” If the law is not one listed in paragraph (b), but nevertheless affects lending, there is a presumption that the law is preempted. See id. The presumption can be reversed only if the law falls within one of the exceptions of paragraph (c). Paragraph (c), however, is to be interpreted narrowly; “any doubt should be resolved in favor of preemption.” See id. Under" } ]

[ { "docid": "5200218", "title": "", "text": "Motion to Dismiss is GRANTED as to the breach of contract claim. 3. PLAINTIFF’S THIRD CLAIM FOR RELIEF, FOR FRAUDULENT OMISSIONS Plaintiffs third claim, for fraudulent omissions, is brought against HSA. HSA moves to dismiss the fraudulent omissions claim on the grounds that the Home Owners Loan Act (“HOLA”) preempts the common law cause of action. In the March 31, 2009 Order, this Court granted HSA’s motion to dismiss the fraudulent omissions claim in the FAC on federal preemption grounds. (March 31 Order 7:11-9:11.) In the FAC, Plaintiff alleged that HSA had a duty to disclose under both TILA and common law. This Court found that Plaintiffs claim was preempted. (March 31 Order 7:23-24; 7:24-26.) In the SAC, Plaintiff now alleges that the fraudulent omissions claim is based on HSA’s failure to disclose in the Note that: (a) The 1.25% interest rate would apply for only one month; and (b) the scheduled monthly payments would be insufficient to pay both principal and interest. (SAC ¶¶ 86-87.) “In enacting HOLA, Congress gave the organization now known as the Office of Thrift Supervision (“OTS”) plenary authority to issue regulations governing federal savings and loans. 12 U.S.C. § 1464.” Reyes v. Downey Sav. & Loan Ass’n, FA., 541 F.Supp.2d 1108, 1112 (C.D.Cal.2008). In 1996, acting under the authority that Congress granted to it in 12 U.S.C. §§ 1463-64, OTS issued 12 C.F.R. § 560.2 (“Section 560.2”) to declare that OTS “occupies the entire field of lending regulation for federal savings associations.” Section 560.2(a). In Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001, 1005 (9th Cir.2008), the Ninth Circuit detailed the proper analysis for determining whether state law claims are preempted by HOLA under Section 560.2. The first step is to “determine whether the type of law in question is listed in Section 560.2(b).” Id. at 1005 (citing OTS, Final Rule, 61 Fed. Reg. 50951, 50966-67 (Sept. 30, 1996)). If so, the analysis ends and the state law is preempted. Id. at 1006. Under Section 560.2(b), the types of state laws preempted by [HOLA] include, without limitation, state laws purporting to impose requirements regarding:" }, { "docid": "4887060", "title": "", "text": "courts to follow in determining whether a specific state law is preempted by HOLA. See 12 C.F.R. § 560.2; Lending and Investment, 61 Fed. Reg. 50951, 50966-67 (Sept. 30, 1996) (codified at 12 C.F.R. pts. 545, 560, 563, 566, 571, 590). First, a court must decide whether the law in question appears in section 560.2(b)’s illustrative list of types of state laws that are definitively preempted. 61 Fed.Reg. at 50966. These include “[t]he terms of credit, including ... adjustments to the interest rate, balance, payments due, or term to maturity of the loan;” “[disclosure and advertising;” and “[processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.” 12 C.F.R. § 560.2(b)(4), (b)(9), (b)(10). If the law is not of a type appearing in paragraph (b) of section 560.2, the court must analyze whether the law “affects lending.” 61 Fed.Reg. at 50966. If so, then it presumptively is preempted, rebuttable only if the law clearly is shown to fit within the purview of paragraph (c). Id. Paragraph (c) lists state laws that HOLA is not presumed to preempt, including contract and commercial law, real property law, homestead laws, tort law, and criminal law. 12 C.F.R. § 560.2(c). Any other law that, in the estimation of the OTS, promotes a vital state interest and either has only an incidental effect on lending or is not otherwise contrary to the regulatory intent to “occupy the field” is also not preempted. Id. Courts, however, are to interpret paragraph (c) narrowly, with any doubt resolved in favor of preemption. 61 Fed.Reg. at 50966. As the OTS has said, “the purpose of paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions, not to open the door to state regulation of lending by federal savings associations.” Id. A plaintiffs complaint, therefore, must be divided into claims which “fall on the regulatory side of the ledger and [those] which, for want of a better term, fall on the common law side.” In re Ocwen Loan Servicing, LLC Mortg. Servicing Litig., 491 F.3d 638, 644 (7th Cir.2007) (Posner, J.)." }, { "docid": "22239074", "title": "", "text": "creation of federal savings and loan associations, to regulate them, and by its regulations to preempt conflicting state law.” In re Ocwen Loan Servicing, LLC Mortg. Ser vicing Litigation, 491 F.3d 638, 642 (7th Cir.2007). In one of its regulations, OTS announced that it “hereby occupies the entire field of lending regulation for federal savings associations.” 12 C.F.R. § 560.2(a). In the same section, however, the regulation contains the following saving clause: state tort, contract, and commercial laws are “not preempted to the extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section.” 12 C.F.R. § 560.2(c). Read together, these provisions mean that state laws that establish licensing, registration, or other requirements specific to financial institutions cannot be applied to national banks, while laws of general applicability survive preemption so long as they do not effectively impose standards that conflict with federal ones. Cf. Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11, 127 S.Ct. 1559, 167 L.Ed.2d 389 (2007) (“Federally chartered banks are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or the general purposes of [federal banking law].”) (analyzing preemption under the National Bank Act, which is applied analogously to HOLA). Arguing for field preemption, Wells Fargo contends that HOLA and the corresponding OTS regulations displace state common-law suits that effectively impose any standards for the processing and servicing of mortgage loans, whether they conflict with federal policy or not. This argument is directly at odds with the saving clause of 12 C.F.R. § 560.2(c) and inconsistent with our decision in Ocwen. There we noted that HOLA gave OTS the “exclusive authority to regulate the savings and loan industry in the sense of fixing fees (including penalties), setting licensing requirements, prescribing certain terms in mortgages, establishing requirements for disclosure of credit information to customers, and setting standards for processing and servicing mortgages.” Ocwen, 491 F.3d at 643. Despite its regulatory authority, however, OTS “has no power to adjudicate" }, { "docid": "7362733", "title": "", "text": "moves to dismiss, arguing that: (A) all of Plaintiffs claims are preempted by the Home Owners Loan Act (“HOLA”); (B) Plaintiffs offer to tender is inadequate; and (C) Plaintiff fails to state a claim as to any of her causes of action. This Order addresses each argument in turn, concluding that only the last argument has merit. A. HOLA Preemption Defendant argues that HOLA applies to it and operates to bar Plaintiffs claims. See Mot. at 2-5. Plaintiff does not dispute the first point, but does dispute the second. See Opp’n (dkt. 12) at 6-9. As explained below, Plaintiff is mostly right. Congress enacted HOLA “to charter savings associations under federal law, at a time when record numbers of homes were in default and a staggering number of state-chartered savings associations were insolvent.” See Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1004 (9th Cir.2008). HOLA and the Office of Thrift Supervision (OTS) regulations that interpret it were a “radical and comprehensive response to the inadequacies of the existing state system” and “so pervasive as to leave no room for state regulatory control.” Id. (internal quotation marks omitted). The OTS regulations explain that OTS “occupies the entire field of lending regulation for federal savings associations,” and establish a framework for determining whether a state law is preempted. See 12 C.F.R. § 560.2(a), (b). OTS enumerates certain types of state laws that are preempted, including “state laws purporting to impose requirements regarding ... processing, origination, servicing sale or purchase of, or investment or participation in, mortgages.” 12 C.F.R. § 560.2(b)(10). If the state law is one of the enumerated types, “the analy sis will end there; the law is preempted.” Silvas, 514 F.3d at 1005. If it is not, then the court is to determine “whether the law affects lending.” Id. (internal quotation marks omitted). If it does, the law is presumed to be preempted, subject to the exceptions of section 560.2(c). Id. That section provides: (c) State laws that are not preempted. State laws of the following types are not preempted to the extent that they only incidentally affect the" }, { "docid": "23244624", "title": "", "text": "documents is contrary to the policy of California and thus violates UCL § 17200. This claim, similar to the claim under § 17500, fits within § 560.2(b)(9) because the alleged misrepresentation is contained in advertising and disclosure documents. In addition, Appellants’ claim under UCL § 17200 alleges that the lock-in fee itself is unlawful. That allegation triggers a separate section of paragraph (b). Section 560.2(b)(5) specifically preempts state laws purporting to impose requirements on loan related fees. See Jones v. E*Trade Mortgage Co., 397 F.3d 810, 813 (9th Cir.2005) (finding E*TRADE’s lock-in fee is not a separate transaction, but a loan related fee). Because the UCL § 17200 claim, as applied, is a type of state law listed in paragraph (b)—in two separate sections—the preemption analysis ends there. Appellants’ claim under UCL § 17200 is preempted. C. Incidental Affect Analysis Under 12 C.F.R. § 560.2(c). Section 560.2(c) provides that state laws of general applicability only incidentally affecting federal savings associations are not preempted. Appellants argue that both of their state law claims fit under § 560.2(c)(1) and (4) because they are founded on California contract, commercial, and tort law, merely enforcing the private right of action under TILA. They further contend that their claims use a predicate legal duty supplied by TILA, and therefore only have an incidental affect on lending. We do not reach the question of whether the law fits within the confines of paragraph (c) because Appellants’ claims are based on types of laws listed in para graph (b) of § 560.2, specifically (b)(9) and (b)(5). D.TILA’s Savings Clause does not Trump HOLA. TILA’s savings clause provides that TILA does not preempt state law unless the state law is inconsistent with TILA. 15 U.S.C. § 1610(b). TILA, however, does not trump HOLA and OTS regulations. We have held that a “no preemption clause” or a “savings clause” in a specific act does not preclude the preemptive effect of HOLA. Bank of Am., 309 F.3d at 565-66. In that case we analyzed section 1693q of the Electronic Fund Transfer Act (“EFTA”), which has a savings clause similar to" }, { "docid": "15043691", "title": "", "text": "orders as the Director may determine to be necessary for carrying out [the] act and all other laws within the Director’s jurisdiction.” 12 U.S.C. § 1462a(b)(2). Additionally, section 1463 provides for OTS to do so in the specific context of federal savings associations. 12 U.S.C. § 1463(a)(2). Under the authority provided by HOLA, OTS promulgated 12 C.F.R. § 560.2(a) with the specific intention of occupying “the entire field of lending regulation for federal savings associations.” (a) Occupation of field. Pursuant to sections 4(a) and 5(a) of the HOLA, 12 U.S.C. 1463(a), 1464(a), OTS is authorized to promulgate regulations that preempt state laws affecting the operations of federal savings associations .... OTS hereby occupies the entire field of lending regulation for federal savings associations .... For purposes of this section, “state law” includes any state statute, regulation, ruling, order or judicial decision. 12 C.F.R. § 560.2(a) (emphasis added). The language of section 560.2(a) is unequivocal in its intent to preempt all state laws affecting lending regulation for federal savings associations. Furthermore, 12 C.F.R. § 560.2(b) gives an extensive list of the type of state laws preempted by section 560.2(a) . The list includes laws that affect: (4) The terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan, including the circumstances under which a loan may be called due and payable upon the passage of time ór a specified event external to the loan; (5) Loan-related fees, including without limitation, initial charges, late charges, prepayment penalties, servicing fees, and overlimit fees; (9) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents and laws requiring creditors to supply copies of credit reports to borrowers or applicants; (11) Disbursements and repayments; Id. The Boursiquots’ CUTPA claims fall squarely within the fields of state law set forth above. Regardless, the Boursi-quots argue that their CUTPA claims are excepted under 12 C.F.R. § 560.2(c), because" }, { "docid": "12230634", "title": "", "text": "under HOLA is “informative” and that it “provides a partial roadmap for this Court’s consideration of [the preemption] issue.” Still, Plaintiff reads Ocwen selectively, and she misapplies its funda mental inquiry as it pertains to the substance of her individual allegations. Similar to the NBA, HOLA provides a list of types of state laws that “are not preempted to the extent that they only incidentally affect the lending operations of Federal savings associations” (the entities regulated by HOLA). Compare 12 C.F.R. § 34.4(b) with 12 C.F.R. § 560.2(c). Moreover, like the NBA’s, HOLA’s list includes contract law. Compare 12 C.F.R. § 34.4(b) with 12 C.F.R. § 560.2(c). Accordingly, the Ocwen court’s discussion of preemption under HOLA is indeed useful to this Court: [T]he list of laws [in 12 C.F.R. § 560.2(c)] that are not preempted[ ] is designed merely to preserve the traditional infrastructure of basic state laws that undergird commercial transactions, not to open the door to state regulation of lending by federal savings associations. The list in subsection (c) is long and the categories it covers — contract and commercial law, tort law, and so forth — are very broad. It would not do to let the broad standards characteristic of such fields morph into a scheme of state regulation of federal S & Ls. Hence the statement in subsection (c) that state laws escape preemption only to the extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section. 491 F.3d at 643 (internal citations and quotations omitted). Defendant correctly reads Ocwen, and its summation merits repeating: In the end, Ocwen overwhelmingly stands for the proposition that a court’s analysis should focus on the substance of the allegation rather than what the claim is called. That a plaintiff calls a claim something one normally associates with contract or tort law does not save it from preemption if it complains of activities that are regulated, and therefore preempted, by the governing federal regulations. ... Ocwen very clearly states that if a state law" }, { "docid": "4887062", "title": "", "text": "The Eighth and Ninth Circuits have interpreted the OTS’s analytical framework to mean that any “state law that either on its face or as applied imposes requirements regarding the examples listed in § 560.2(b) is preempted.” Casey v. Federal Deposit Ins. Corp., 583 F.3d 586, 595 (8th Cir.2009); Silvas, 514 F.3d at 1006. In other words, “a state law that on its face is not one described in § 560.2(b) may nevertheless be preempted if, as applied, it fits within § 560.2(b).” Casey, 583 F.3d at 594. Under this “as applied” rule, only generally applicable state laws that fit within paragraph (c) without more than incidentally affecting lending are exempt from preemption. See Jones v. Home Loan Inv., FSB, 718 F.Supp.2d 728, 734 (S.D.W.Va.2010). While the Sixth Circuit has addressed express preemption under paragraph (b), see State Farm Bank v. Reardon, 539 F.3d 336, 347-49 (6th Cir.2008), the Seventh Circuit is the only other appellate court to have applied the paragraph (c) analysis, see In re Ocwen Loan Servicing, 491 F.3d at 643-44. Judge Posner, writing for a three-judge panel, recognized that, while the OTS has plenary authority over federal savings banks, HOLA does not provide a private right of action to consumers, leaving them with “little recourse in disputes with federal savings banks outside of those generally applicable state laws exempted from preemption in § 560.2(c).” Jones, 718 F.Supp.2d at 734 (discussing Judge Posner’s opinion). The Seventh Circuit thus interpreted paragraph (c), on balance, “to mean that [the] OTS’s assertion of plenary regulatory authority does not deprive persons harmed by the wrongful acts of savings and loan associations of their basic state common-law-type remedies.” In re Ocwen Loan Servicing, 491 F.3d at 643. The court gave two examples: Suppose [a savings and loan association] signs a mortgage agreement with a homeowner that specifies an annual interest rate of 6 percent and a year later bills the homeowner at a rate of 10 percent and when the homeowner refuses to pay institutes foreclosure proceedings. It would be surprising for a federal regulation to forbid the homeowner’s state to give the" }, { "docid": "13945805", "title": "", "text": "inform Plaintiff’ that he would be unable to refinance his home due to the certain negative amortization built into his payment schedule. Compl. ¶¶ 38-39. Plaintiff also alleges that Defendants’ representative at the closing did not provide Plaintiff the loan documentation in advance or give him an opportunity to review the documents before closing. Compl. ¶ 40. Because this claim is entirely based on Defendants’ disclosures and the provision of credit-related documents, it falls within the specific type of preempted state laws listed in § 560.2(b)(9). Silvas, 514 F.3d at 1006. See also, e.g., Newsom v. Countrywide Home Loans, Inc., 714 F.Supp.2d 1000, 1012-13 (N.D.Cal.2010) (finding that HOLA preempted fraud claim alleging that defendant failed to provide disclosures and misrepresented interest rates and fees); Amaral v. Wachovia Mortg. Corp., 692 F.Supp.2d 1226, 1237-38 (E.D.Cal. 2010) (finding that HOLA preempted fraud claim alleging that defendant made material false representations regarding plaintiffs’ loan); Reyes v. Premier Home Funding, Inc., 640 F.Supp.2d 1147, 1156 (N.D.Cal.2009) (finding that HOLA preempted negligence claim alleging that Defendants failed to explain material terms of a loan agreement). Therefore, under the approach put forth by OTS and adopted by the Ninth Circuit, the preemption analysis ends, and Plaintiffs misrepresentation claim is preempted. Because the preemption of Plaintiffs claim cannot be cured by amendment, Plaintiffs second cause of action is dismissed with prejudice as to the Bank Defendants. 2. Breach of Fiduciary Duty Plaintiffs fourth cause of action alleges that Defendant Banks aided and abetted the IQ Defendants’ breach of fiduciary duty. Compl. ¶¶ 61-62. Plaintiffs claim of breach of fiduciary duty is grounded in allegations that the IQ Defendants failed to make disclosures about the loan required by state and federal law, misrepresented the terms of the loan and the viability of refinancing, and serviced the loan out of compliance with TILA. Compl. ¶ 50-51, 59-62. The first step of the preemption analysis asks whether the cause of action for breach of fiduciary duty, as applied, is a type of state law contemplated in paragraph (b) of 12 C.F.R. § 560.2. Silvas, 514 F.3d at 1006. Here, the" }, { "docid": "6212190", "title": "", "text": "passage of time or a specified event external to the loan; (9) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents and laws requiring creditors to supply copies of credit reports to borrowers or applicants; (10) Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages[.] 12 C.F.R. § 560.2(b). Paragraph (c) of § 560.2 provides that HOLA does not preempt state laws that “only incidentally affect the lending operations of Federal savings associations,” including “contract and commercial law,” “real property law,” and “tort law.” 12 C.F.R. § 560.2(c). The OTS also describes the analytic framework courts should use when determining whether a state law is preempted by § 560.2: When analyzing the status of state laws under § 560.2, the first step [is] to determine whether the type of law in question is listed in paragraph (b). If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then ... the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should be resolved in favor of preemption. OTS, Final Rule, 61 Fed. Reg. 50951, 50966-67 (Sept. 30, 1996) (cited in Silvas, 514 F.3d at 1005). Applying this framework in Silvas, the Ninth Circuit held that UCL claims based on allegations that the defendant had included “false information on its website and in every media advertisement to the California public” were preempted because they were based on the defendant’s disclosures and advertising, and therefore fell within the specific type of state provision listed in § 560.2(b)(9). Silvas, F.3d at 1004. In this case, plaintiffs contend that defendants violated the UCL by “making untrue or misleading statements ... with the intent to induce” plaintiffs into" }, { "docid": "13945804", "title": "", "text": "1005. Paragraph (c), which lists certain state laws that are not necessarily preempted, comes into play only if the state law is not covered by paragraph (b). Id. 1. Negligent Misrepresentation Plaintiffs second cause of action, as stated in the Complaint, is a state law claim for negligent misrepresentation. Defendant asserts several defenses against this claim, including preemption by HOLA. There is some confusion over what, exactly, Plaintiff intends to allege in this claim. Though styled as a claim for “negligent misrepresentation” in the Complaint, Compl. 6, Plaintiff acknowledges that the title of this claim may have been a misnomer and attempts to reframe the claim as one for intentional deceit or fraudulent misrepresentation. Pl.’s Opp’n 8-9. What matters for purposes of Defendant’s preemption defense, however, is not the label Plaintiff affixed to his claim, but whether Plaintiffs allegations, however styled, fall within the scope of the OTS preemption regulations. In his misrepresentation claim, Plaintiff alleges that Defendants “concealed the nature and extent of negative amortization” and “failed to disclose and by omission failed to inform Plaintiff’ that he would be unable to refinance his home due to the certain negative amortization built into his payment schedule. Compl. ¶¶ 38-39. Plaintiff also alleges that Defendants’ representative at the closing did not provide Plaintiff the loan documentation in advance or give him an opportunity to review the documents before closing. Compl. ¶ 40. Because this claim is entirely based on Defendants’ disclosures and the provision of credit-related documents, it falls within the specific type of preempted state laws listed in § 560.2(b)(9). Silvas, 514 F.3d at 1006. See also, e.g., Newsom v. Countrywide Home Loans, Inc., 714 F.Supp.2d 1000, 1012-13 (N.D.Cal.2010) (finding that HOLA preempted fraud claim alleging that defendant failed to provide disclosures and misrepresented interest rates and fees); Amaral v. Wachovia Mortg. Corp., 692 F.Supp.2d 1226, 1237-38 (E.D.Cal. 2010) (finding that HOLA preempted fraud claim alleging that defendant made material false representations regarding plaintiffs’ loan); Reyes v. Premier Home Funding, Inc., 640 F.Supp.2d 1147, 1156 (N.D.Cal.2009) (finding that HOLA preempted negligence claim alleging that Defendants failed to explain material" }, { "docid": "12230633", "title": "", "text": "conduct.” Apparently, Plaintiff continues to rely, in part, on 12 C.F.R. § 34.4(b): “State laws on' the following subjects are not inconsistent with the real estate lending powers of national banks and apply to national banks to the extent that they only incidentally affect the exercise of national banks’ real estate lending powers: (1) Contracts.... ” In Plaintiffs .view, “[b]y applying equity and unconscionability principles to national banks, courts do not more than incidentally affect the banks’ ability to engage in real estate lending any more than applying fraud principles would.” Plaintiff cites In re Ocwen Loan Servicing, LLC Mortgage Servicing Litigation, 491 F.3d 638 (7th Cir.2007), a case addressing preemption under the Home Owner’s Loan Act (HOLA), for its “distinction between preempted claims and non-preempted common law claims.” In that case, the court described its inquiry as “deciding] ... which claims fall on the regulatory side of the ledger and which, for want of a better term, fall on the common law side.” Id. at 644. Defendant agrees that the court’s consideration of preemption under HOLA is “informative” and that it “provides a partial roadmap for this Court’s consideration of [the preemption] issue.” Still, Plaintiff reads Ocwen selectively, and she misapplies its funda mental inquiry as it pertains to the substance of her individual allegations. Similar to the NBA, HOLA provides a list of types of state laws that “are not preempted to the extent that they only incidentally affect the lending operations of Federal savings associations” (the entities regulated by HOLA). Compare 12 C.F.R. § 34.4(b) with 12 C.F.R. § 560.2(c). Moreover, like the NBA’s, HOLA’s list includes contract law. Compare 12 C.F.R. § 34.4(b) with 12 C.F.R. § 560.2(c). Accordingly, the Ocwen court’s discussion of preemption under HOLA is indeed useful to this Court: [T]he list of laws [in 12 C.F.R. § 560.2(c)] that are not preempted[ ] is designed merely to preserve the traditional infrastructure of basic state laws that undergird commercial transactions, not to open the door to state regulation of lending by federal savings associations. The list in subsection (c) is long and the" }, { "docid": "5200219", "title": "", "text": "as the Office of Thrift Supervision (“OTS”) plenary authority to issue regulations governing federal savings and loans. 12 U.S.C. § 1464.” Reyes v. Downey Sav. & Loan Ass’n, FA., 541 F.Supp.2d 1108, 1112 (C.D.Cal.2008). In 1996, acting under the authority that Congress granted to it in 12 U.S.C. §§ 1463-64, OTS issued 12 C.F.R. § 560.2 (“Section 560.2”) to declare that OTS “occupies the entire field of lending regulation for federal savings associations.” Section 560.2(a). In Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001, 1005 (9th Cir.2008), the Ninth Circuit detailed the proper analysis for determining whether state law claims are preempted by HOLA under Section 560.2. The first step is to “determine whether the type of law in question is listed in Section 560.2(b).” Id. at 1005 (citing OTS, Final Rule, 61 Fed. Reg. 50951, 50966-67 (Sept. 30, 1996)). If so, the analysis ends and the state law is preempted. Id. at 1006. Under Section 560.2(b), the types of state laws preempted by [HOLA] include, without limitation, state laws purporting to impose requirements regarding: (4) The terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan, including the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan; (9) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents and laws requiring creditors to supply copies of credit reports to borrowers or applicants. Sections 560.2(b)(4), (9). Plaintiffs fraudulent omissions claim is based on his allegations that HSA failed to disclose that the 1.25% interest rate would only apply for one month and that the scheduled monthly payments would be insufficient to pay both principal and interest. The Court finds that these alleged failures to disclose fit squarely within Sections 560.2(b)(4) and (9). Accordingly, the fraudulent omissions claim is preempted by HOLA, and HSA’s Motion is GRANTED" }, { "docid": "20287318", "title": "", "text": "LLC, 159 Cal.App.4th 784, 799, 71 Cal.Rptr.3d 885 (2008) (alleged misconduct during contract negotiations failed to state a claim for breach of the implied covenant of good faith and fair dealing). To the extent that Plaintiffs’ implied covenant claim is predicated on disclosures required by TILA, it is preempted pursuant to regulations issued under the auspices of the Homeowners’ Loan Act of 1933 (“HOLA”). “HOLA created what is now the OTS [Office of Thrift Supervision] for the purpose of administering the statute, and it provided the OTS with ‘plenary authority’ to promulgate regulations involving the operation of federal savings associations.” State Farm Bank v. Reardon, 539 F.3d 336, 342 (6th Cir.2008). The OTS has authority to issue broad regulations preempting state law. Fid. Fed. Sav. & Loan, Ass’n v. de la Cuesta, 458 U.S. 141, 160, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). In particular, 12 C.F.R. § 560.2 provides that federal law “occupies the entire field of lending regulation for federal savings associations.” The effect of this express preemption clause is to virtually occupy the entire field of lending-related activities of qualifying lending associations, and to leave no room for conflicting state laws. Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001, 1005-1006 (9th Cir.2008). To clarify the scope of HOLA’s preemption, section 560.2(b) sets forth a non-exhaustive list of illustrative examples of the types of state laws that are expressly preempted, which include, inter alia, terms of credit, loan-related fees, servicing fees, disclosure and advertising, loan processing, loan origination, and servicing of mortgages. 12 C.F.R. § 560.2(b). A claim or state statute may be preempted by HOLA on an “as applied” or case-specific basis. See Silvas, 514 F.3d at 1005-1006. To determine whether a state law claim is preempted, as applied, “the first step will be to determine whether the type of law in question is listed in paragraph (b).” Id. If so, the state law is preempted. Id Among the types of laws subject to preemption under section 560.2(b) are those “purporting to impose requirements regarding: ... [¶] (9) Disclosure and advertising, including laws requiring specific statements, information," }, { "docid": "5108271", "title": "", "text": "federal scheme, Congress enacted HOLA during the Great Depression. Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001, 1004 (9th Cir.2008). The purpose of HOLA was to charter savings associations under federal law as a means of restoring public confidence through a nationwide system of savings and loan associations that are centrally regulated according to nationwide “best practices.” Id. (citing Fidelity Fed. Savings and Loan Ass’n v. de la Cuesta, 458 U.S. 141, 160-61, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)). Through HOLA, Congress gave the OTS broad authority to issue regulations governing federal savings associations. See 12 U.S.C. § 1464; Silvas, 514 F.3d at 1005. Wells Fargo relies on 12 C.F.R. § 560.2 in support of its argument that the OTS regulations establish that state laws do not apply to the lending practices of federal banks and thrifts and “oceup[y] the entire field of lending regulation for federal savings associations.” 12 C.F.R. § 560.2(a). That regulation provides that “federal savings associations may extend credit as authorized under federal law, including this part, without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section or § 560.110 of this part.” Id. Examples of credit activities that states may not regulate include “terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan,” (§ 560.2(b)(4)) “[l]oan-related fees, including without limitation, initial charges, late charges, prepayment penalties, servicing fees, and overlimit fees,” (§ 560.2(b)(5)) “disclosurefs] and advertising,” (§ 560.2(b)(9)) and “[processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.” (§ 560.2(b)(10)). A state law of general applicability can be preempted by HOLA if, as applied, it falls under § 560.2(b). See Silvas, 514 F.3d at 1006; Munoz v. Fin. Freedom Senior Funding Corp., 567 F.Supp.2d 1156, 1160 (C.D.Cal.2008). However, “[sjtate laws of the following types are not preempted to the extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise" }, { "docid": "16647284", "title": "", "text": "or participation in, mortgages; Section 560.2(b)(4), (b)(9)-(10). However, HOLA preemption of state laws affecting federal savings associations is not absolute. Section 560.2(c) carves out state laws that “only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section.” (Emphasis added). The Ninth Circuit has given further guidance with respect to whether a state law is preempted by HOLA: [T]he first step will be to determine whether the type of law in question is listed in paragraph (b) [of 12 C.F.R. § 560.2], If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should be resolved in favor of preemption. Silvas, 514 F.3d at 1005 (quoting OTS, Final Rule, 61 Fed. Reg. 50951, 50966-67 (Sep. 30, 1996)). B. Discussion Wells Fargo notes that at the time the loan was made to the DeLeons, “World Savings Bank, FSB was a federally chartered savings bank organized and operating under HOLA” and observes correctly that the same preemption analysis would apply to any alleged conduct after November 1, 2009, when the lender merged into a national banking association. 1. Wrongful Foreclosure (Claim 1) The DeLeons allege that prior to the non-judicial foreclosure and sale, Wells Fargo violated California Civil Code § 2924 by failing to give them notice and to publish, post and record said notice. In Stefan v. Wachovia, another court in this district concluded that a claim based on comparable facts was preempted by HOLA. No. C 09-2252 SBA, 2009 WL 4730904, at *2-3, 2009 U.S. Dist. LEXIS 113480, at *7-8 (N.D.Cal. Dec. 7, 2009). Judge Armstrong held that the plaintiffs claim of misconduct surrounding the foreclosure proceedings plainly involved" }, { "docid": "16647283", "title": "", "text": "at 145, 102 S.Ct. 3014. See 12 C.F.R. §§ 500.1(a) (the OTS “is responsible for the administration and enforcement of the [HOLA]”), 500.10 (the functions of the OTS are to “charter, supervise, regulate and examine Federal savings associations.”). As relevant to the current motion, HOLA sets forth “without limitation” a list of illustrative examples of the types of state laws that are expressly preempted. § 560.2(b): The terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan, including the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan; Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents and laws requiring creditors to supply copies of credit reports to borrowers or applicants; Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages; Section 560.2(b)(4), (b)(9)-(10). However, HOLA preemption of state laws affecting federal savings associations is not absolute. Section 560.2(c) carves out state laws that “only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section.” (Emphasis added). The Ninth Circuit has given further guidance with respect to whether a state law is preempted by HOLA: [T]he first step will be to determine whether the type of law in question is listed in paragraph (b) [of 12 C.F.R. § 560.2], If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should" }, { "docid": "5108272", "title": "", "text": "state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section or § 560.110 of this part.” Id. Examples of credit activities that states may not regulate include “terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan,” (§ 560.2(b)(4)) “[l]oan-related fees, including without limitation, initial charges, late charges, prepayment penalties, servicing fees, and overlimit fees,” (§ 560.2(b)(5)) “disclosurefs] and advertising,” (§ 560.2(b)(9)) and “[processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.” (§ 560.2(b)(10)). A state law of general applicability can be preempted by HOLA if, as applied, it falls under § 560.2(b). See Silvas, 514 F.3d at 1006; Munoz v. Fin. Freedom Senior Funding Corp., 567 F.Supp.2d 1156, 1160 (C.D.Cal.2008). However, “[sjtate laws of the following types are not preempted to the extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section: (1) Contract and commercial law; (2) Real property law; ... (4) Tort law; (5) Criminal law; and (6) Any other law that OTS, upon review, finds: (i) Furthers a vital state interest; and (ii) Either has only an incidental effect on lending operations or is not otherwise contrary to the purposes expressed in paragraph (a) of this section.” Id. § 560.2(c). OTS has stated “that the purpose of paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions, not to open the door to state regulation of lending by federal savings associations.” 61 Fed. Reg. 50951, 50966-50967. “When analysing the status of state laws under § 560.2, the first step will be to determine whether the type of law in question is listed in paragraph (b). If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then," }, { "docid": "4887061", "title": "", "text": "is not presumed to preempt, including contract and commercial law, real property law, homestead laws, tort law, and criminal law. 12 C.F.R. § 560.2(c). Any other law that, in the estimation of the OTS, promotes a vital state interest and either has only an incidental effect on lending or is not otherwise contrary to the regulatory intent to “occupy the field” is also not preempted. Id. Courts, however, are to interpret paragraph (c) narrowly, with any doubt resolved in favor of preemption. 61 Fed.Reg. at 50966. As the OTS has said, “the purpose of paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions, not to open the door to state regulation of lending by federal savings associations.” Id. A plaintiffs complaint, therefore, must be divided into claims which “fall on the regulatory side of the ledger and [those] which, for want of a better term, fall on the common law side.” In re Ocwen Loan Servicing, LLC Mortg. Servicing Litig., 491 F.3d 638, 644 (7th Cir.2007) (Posner, J.). The Eighth and Ninth Circuits have interpreted the OTS’s analytical framework to mean that any “state law that either on its face or as applied imposes requirements regarding the examples listed in § 560.2(b) is preempted.” Casey v. Federal Deposit Ins. Corp., 583 F.3d 586, 595 (8th Cir.2009); Silvas, 514 F.3d at 1006. In other words, “a state law that on its face is not one described in § 560.2(b) may nevertheless be preempted if, as applied, it fits within § 560.2(b).” Casey, 583 F.3d at 594. Under this “as applied” rule, only generally applicable state laws that fit within paragraph (c) without more than incidentally affecting lending are exempt from preemption. See Jones v. Home Loan Inv., FSB, 718 F.Supp.2d 728, 734 (S.D.W.Va.2010). While the Sixth Circuit has addressed express preemption under paragraph (b), see State Farm Bank v. Reardon, 539 F.3d 336, 347-49 (6th Cir.2008), the Seventh Circuit is the only other appellate court to have applied the paragraph (c) analysis, see In re Ocwen Loan Servicing, 491 F.3d at 643-44. Judge Posner," }, { "docid": "6212189", "title": "", "text": "regulations promulgated pursuant to that statute by the Office of Thrift Supervision (“OTS”). HOLA was enacted in 1933 to regulate federally charted savings associations. It was a “ ‘radical and comprehensive response to the inadequacies of the existing state system,’ and [is] ‘so pervasive as to leave no room for state regulatory control.’ ” Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1004 (9th Cir.2008) (citing Conference of Fed. Sav. & Loan Ass’ns v. Stein, 604 F.2d 1256, 1257, 1260 (9th Cir.1979)). Pursuant to 12 U.S.C. § 1464, the OTS issued 12 C.F.R. § 560.2, which provides that certain types of state laws are preempted by HOLA. Paragraph (b) of § 560.2 provides a non-exhaustive list of such laws, including state laws that purport to impose requirements regarding: (4) The terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan, including the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan; (9) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents and laws requiring creditors to supply copies of credit reports to borrowers or applicants; (10) Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages[.] 12 C.F.R. § 560.2(b). Paragraph (c) of § 560.2 provides that HOLA does not preempt state laws that “only incidentally affect the lending operations of Federal savings associations,” including “contract and commercial law,” “real property law,” and “tort law.” 12 C.F.R. § 560.2(c). The OTS also describes the analytic framework courts should use when determining whether a state law is preempted by § 560.2: When analyzing the status of state laws under § 560.2, the first step [is] to determine whether the type of law in question is listed in paragraph (b). If so, the analysis will end there; the law is preempted. If the law" } ]

[ { "docid": "19651544", "title": "", "text": "under the facts of that case, where a state prisoner has defaulted his entire appeal. See Carrier, supra, at 492; Sykes, supra, at 88, n. 12. We are now required to answer this question. By filing late, Coleman defaulted his entire state collateral appeal. This was no doubt an inadvertent error, and respondent concedes that Coleman did not “understandingly and knowingly” forgo the privilege of state collateral appeal. See Fay, 372 U. S., at 439. Therefore, if the Fay deliberate bypass standard still applies, Coleman’s state procedural default will not bar federal habeas. In Harris, we described in broad terms the application of the cause and prejudice standard, hinting strongly that Fay had been superseded: “Under Sykes and its progeny, an adequate and independent finding of procedural default will bar federal ha-beas review of the federal claim, unless the habeas petitioner can show ‘cause’ for the default and ‘prejudice attributable thereto,' Murray v. Carrier, 477 U. S. 478, 485 (1986), or demonstrate that failure to consider the federal claim will result in a ‘ “ ‘fundamental miscarriage of justice.”” Id., at 495, quoting Engle v. Isaac, 456 U. S. 107, 135 (1982). See also Smith v. Murray, 477 U. S. 527, 537 (1986).” Harris, 489 U. S., at 262. We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Fay was based on a conception of federal/state relations that undervalued the importance of state procedural rules. The several cases after Fay that applied the cause and prejudice standard to a variety of state procedural defaults represent a different view. We now recognize the important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure" } ]

[ { "docid": "22246539", "title": "", "text": "to its earlier ruling rejecting the claim. We review the district court’s treatment of Mincey’s Brady claim in two parts. First, we consider whether the court erred in dismissing the claim as procedurally defaulted when it entered its final judgment denying Mincey habeas relief. Then, we consider whether the court abused its discretion when it denied Mincey’s Rule 59(e) relief. 1. We review de novo the district court’s conclusion (in its order granting the State final judgment) that Mincey procedurally defaulted his Brady claim, and therefore, it could not be disposed of on the merits under federal law. See Lusk v. Singletary, 112 F.3d 1103, 1105 (11th Cir.1997). It is well-settled that federal habeas courts may not consider claims that have been defaulted in state court pursuant to an adequate and independent state procedural rule, unless the petitioner can show “cause” for the default and resulting “prejudice,” or “a fundamental miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992). Under Georgia law, a prisoner seeking a writ of habeas corpus vacating his conviction must present all of his grounds for relief in his original petition. See Ga.Code Ann. § 9-14-51 (1993). The Georgia Supreme Court has explained that the purpose of this procedural rule is to bar successive petitions. See Hunter v. Brown, 236 Ga. 168, 223 S.E.2d 145, 146 (1976). Moreover, we have repeatedly recognized that not complying with this rule precludes federal habeas review. See McCoy, 953 F.2d at 1257-62; Lancaster v. Newsome, 880 F.2d 362, 372-74 (11th Cir.1989); Presnell v. Kemp, 835 F.2d 1567, 1773 (11th Cir.1988). Mincey failed to comply with Georgia’s successive petition rule on March 5, 1984 when he neglected to present his Brady claim in his original habeas petition to the Butts County Superior Court. The district court was therefore precluded from addressing the merits of Mincey’s Brady claim unless he showed “cause” for not raising it in his original habeas petition to the Butts County Superior Court and resulting prejudice, or that" }, { "docid": "15291907", "title": "", "text": "fading to object to that instruction; and (3) his appellate counsel was ineffective for failing to challenge the instruction’s constitutionality on direct appeal. The state courts denied petitioner’s application for post-conviction relief, finding his jury instruction claim procedurally barred because petitioner failed to raise it on direct appeal. The state courts further found that he was not deprived of effective assistance of counsel. On October 17, 1996, Mr. Sherrill filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Oklahoma. The ha-beas petition raises the same claims presented to the state courts in petitioner’s application for post-conviction relief. The district court denied the § 2254 petition, finding Mr. Sherrill’s jury instruction and ineffective assistance of trial counsel claims procedurally barred and his ineffective assistance of appellate counsel claim without merit. On appeal, petitioner argues that the district court erred in denying his § 2254 petition. II. Petitioner first argues that the district court erred in finding that his state procedural default barred federal habeas review of his jury instruction claim. It is well established that federal habeas review of claims defaulted in state court pursuant to an independent and adequate state procedural rule is barred “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “A state' procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998). “For the state ground to be adequate, it must be strictly or regularly followed and applied evenhandedly to all similar claims.” Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal quotation marks and citations omitted). In this case, Oklahoma’s procedural rule barring post-conviction relief for claims petitioner could have raised on direct appeal constitutes an independent and adequate ground barring" }, { "docid": "22036703", "title": "", "text": "based” to the state court. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.2003). Even if Koerner’s claims have been fairly presented to the Nevada Supreme Court, however, federal courts may not review them if the Nevada Supreme Court denied relief on the basis of “independent and adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This rule works in tandem with the exhaustion requirement, to ensure that state prisoners cannot subvert the exhaustion requirement by presenting their claims to the state court in a procedurally deficient manner: In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases. Id. at 732, 111 S.Ct. 2546. If his claims are procedurally defaulted pursuant to an independent and adequate state rule, Koerner can only seek federal habeas review of those claims if he “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750, 111 S.Ct. 2546. Pursuant to these rules, the district court found that Koer-ner’s claim for the denial of a direct appeal had not been exhausted by his first two state post-conviction petitions, but had been exhausted by the third petition. Nonetheless, the district court held,- the Nevada courts had dismissed the claim on the basis of an adequate and independent state procedural ground, and Koerner could not demonstrate cause and prejudice. II. Koemer’s first two state post-conviction petitions. The briefs filed by Koerner’s former appellate counsel argue that each of the first and second state post-conviction petitions adequately raised the issue that Koerner was denied a direct appeal due to the ineffective assistance of his counsel. Although we recognize that the Nevada courts did have the power" }, { "docid": "13525679", "title": "", "text": "for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation.” After Sykes a federal habeas court is called upon to make the following analysis before granting relief: First, it must decide whether the state court applied the procedural bar in denying the petitioner’s federal constitutional claim. Second, assuming that a state court applied the procedural bar, the federal court must consider whether there was adequate cause for the petitioner’s failure to comply with the procedural rule. And third, assuming adequate cause, the federal court must decide whether the petitioner suffered actual prejudice from the alleged constitutional violation before habeas relief may be granted. The Louisiana district court denied Jones’s petition for post-conviction relief in one sentence, which began, “Having considered all the claims raised on their merits.... ” The Louisiana Supreme Court made no statement in its denial of a writ of review. When a state court reaches the merits rather than relying on a procedural bar, we are also free to do so. This circuit has held, however, that “[t]he state judge’s mere use of the word ‘merit’ in denying the collateral attack does not justify a federal judge to conclude that the state judge ignored his state law and secretly weighed [the merits of the claim].” This panel is obliged, therefore, to weigh the same considerations as those involved when a state court has been silent as to the basis for its decision. We consider whether the state courts regularly apply the contemporaneous-objection rule to preclude review of the merits of similar claims, whether the history of the case suggests that the courts were aware of the procedural default, and whether the state court’s silence suggests a decision on procedural grounds or on the merits. Article 841 of the Louisiana Code of Criminal Procedure provides, “An irregularity or error cannot be availed of after the verdict unless it was objected to at the time of occurrence.” The Louisiana Supreme Court has applied their contemporaneous objection rule in pre-Batson cases challenging the prosecutor’s use of peremptory challenges to exclude blacks from the jury. The" }, { "docid": "23128343", "title": "", "text": "court should dismiss the petition without prejudice so that those remedies may be pursued. See Jones, 681 F.2d at 694 (affirming dismissal of habeas claim without prejudice for failure to exhaust); see also Dispensa, 826 F.2d at 381 (reversing the district court’s grant of a writ and remanding the case with instructions to dismiss without prejudice). However, in considering unex-hausted claims, federal courts should consider whether, upon dismissal of the claims, the petitioner would then be able to raise them in the state courts. “[I]f the court to which Petitioner must present his claims in order to meet the exhaustion requirement would now find those claims proeedurally barred, there is a procedural default for the purposes of federal habeas review.” Dulin v. Cook, 957 F.2d 758, 759 (10th Cir.1992) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991)). Here, Mr. Demarest filed his ineffective assistance of counsel claim in the state courts pursuant to Rule 35 of the Colorado Rules of Criminal Procedure. Rule 35 authorizes the state court to vacate a conviction that was imposed in violation of the laws or constitutions of the United States or Colorado. See Col. R.Crim. P. 35(c)(2)(I). Rule 35(c)(3) provides in part that “[t]he court need not entertain a second motion or successive motions for similar relief based upon the same or similar allegations on behalf of the same prisoner.” Col. R.Crim. P. 35(c)(3). Accordingly, in order to determine whether Mr. Demarest would now be proeedurally barred from bringing an ineffective assistance of counsel claim in state court based on the new evidence presented at the federal hearing, we must consider how the Colorado courts have interpreted Rule 35(c)(3)’s prohibition of second and successive motions. The Colorado Supreme Court has held that “ ‘[w]here a post-conviction application is filed, it should contain all factual and legal contentions of which the applicant knew at that time of filing, and failure to do so will, unless special circumstances exist, ordinarily result in a second application containing such grounds being summarily denied.’ ” Turman v." }, { "docid": "2876077", "title": "", "text": "1st Dist. April 6, 2001). The appeals court explained as follows: Sheppard’s successive petition contained no assertion that it was based upon a newly recognized federal or state right that applied retroactively to him. Therefore, in order for Sheppard to have met the first prong of R.C. 2953.23(A), he would have had to demonstrate that he was unavoidably prevented from discovering the facts upon which he had relied in presenting his claim for relief. But, where, as here, the petitioner’s claims for relief could have been raised in his first post[-]conviction petition, a successive petition was insufficient to invoke the trial court’s jurisdiction to entertain his claims. Furthermore, Sheppard’s contention that he was denied the effective assistance of counsel in the preparation of his initial post[-]conviction petition is not cognizable in a successive post[-]conviction petition petition. Therefore, we overrule Sheppard’s first through sixth assignments of error and affirm the trial court’s dismissal of his successive post[-]conviction petition. Id. The Ohio Supreme Court declined review. State v. Sheppard, 92 Ohio St.3d 1445, 751 N.E.2d 483 (2001). Recall that when a federal habeas petitioner’s state court claims are denied on procedural grounds, a four-part inquiry is employed to determine whether the claims have been procedurally defaulted for habeas corpus purposes. That inquiry, articulated in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986), is as follows: First the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule. Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under [Wainwright v.]" }, { "docid": "11654407", "title": "", "text": "procedurally defaulted. According to Toles, it would be futile to raise the issue in state court, given the omission of the claim as a basis for relief in his first coram nobis petition. The district court agreed; Toles would be barred from raising the issue in a second petition by an Alabama procedural rule. Rule 20.2(b) of the Alabama Rules of Criminal Procedure provides: The court shall not grant relief on a second or successive petition on the same or similar grounds on behalf of the same petitioner. A second or successive petition on different grounds shall be denied unless the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice. Toles did not argue in the district court that the exception within this rule applied; rather, as mentioned above, he admitted that a second petition would be barred. On appeal, this silence on the relevance of the “good cause” and “miscarriage of justice” exceptions continues. Toles, in fact, does not challenge directly the district court's judgment that Rule 20.2(b) is applicable. Based on Toles’ concessions in the district court, the absence of argument on appeal that good cause exists, and an independent review of the record, we agree with the district court’s conclusion that Toles has exhausted available state remedies. Toles requests, however, that the present petition be dismissed without prejudice in order to allow Alabama courts an opportunity to interpret, in the first instance, the rule barring second petitions. It is true, as Toles notes, that Rule 20.2(b) was recently codified; the effective date of the rule is April 1, 1987, approximately eight months prior to the date on which Toles’ federal habeas petition was filed. See Ala.R.Crim.P. 20.2(c). As such, there is a paucity of jurisprudence interpreting the rule. The rule, however, is essentially a restatement of well-established Alabama common law, and its language is that of a former rule of the" }, { "docid": "1961545", "title": "", "text": "merits of a habeas petition where the state court decision “rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729, 111 S.Ct. 2546. A state procedural rule is not adequate to bar federal review if that “state procedural rule frustrates the exercise of a federal right.” Hoffman, 236 F.3d at 531. Martinez argues that Arizona Rule of Criminal Procedure 32.2 is not an adequate basis on which to deny federal review, because ap plication of that procedural rule would frustrate the protection of his federal rights. Martinez’ argument that Arizona Rule of Criminal Procedure 32.2 is inadequate to bar federal review is dependent upon his position that he has a federal constitutional right to counsel in collateral proceedings. In this case, Arizona Rule of Criminal Procedure 32.2 is an adequate and independent basis to support the state court judgment. We have held that there is no right to the assistance of coimsel in collateral review proceedings, even where those proceedings constitute a first tier of review under the facts of this case. Martinez’ contention that Arizona Rule of Criminal Procedure 32.2 is inadequate to bar federal habeas review therefore fails. Review of Martinez’ habeas petition by the federal courts will be procedurally barred unless he can show cause and prejudice to excuse his default. We now turn to that issue. IV. Where a habeas petitioner “has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule,” the federal courts may not review the petition “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Martinez asserts that there may be cause and prejudice to excuse any procedural default “if Petitioner could show that first post-conviction counsel was unconstitutionally ineffective.” We have already concluded that there is no right to the assistance of post-conviction counsel" }, { "docid": "7824350", "title": "", "text": "a state procedural rule which would constitute adequate and independent grounds to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas, absent a showing of cause and prejudice.” Wood v. Hall, 130 F.3d 373, 376 (9th Cir.1997), cert. denied sub. nom Wood v. Cook, — U.S. -, 118 S.Ct. 1818, 140 L.Ed.2d 955 (1998); see also Coleman v. Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner’s purported default.” Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.1994); see also Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (holding that a state procedural rule is an adequate bar to federal court review if it was “firmly established and regularly followed” at the time it was applied by the state court). In this case, the Nevada trial court found that petitioner committed procedural default in failing to raise in his previous appeal the claim and issue of ineffective assistance of counsel. Dromiack v. Warden, 97 Nev. 348, 630 P.2d 751 (1981).... Petitioner has failed to show cause and prejudice for the procedural default. Dromiack v. Warden, 97 Nev. 348, 630 P.2d 751 (1981). Petitioner contends that the state court misapplied Nevada procedural default law. He argues that there are not any reported cases in Nevada specifically holding that a petitioner procedurally defaults a claim when he fails to appeal from the denial of post-conviction relief, and instead files a second petition for habeas corpus. Although we agree with that conclusion, Nevada law nevertheless clearly requires a petitioner to raise all claims in his first petition, unless he can demonstrate cause and prejudice: Many petitions for habeas corpus or other post-conviction relief are repetitious; others often are specious. This places an unnecessary burden upon the courts. It is highly desirable that a petitioner be required to assert all of his claims in one petition." }, { "docid": "5359308", "title": "", "text": "L.Ed.2d 594 (1977), in order to overcome procedural bar). Satter would now be barred from raising the issue of insufficiency of evidence in a subsequent action for post-conviction relief in state court. Accordingly, he has defaulted that claim by his failure to pursue it in state post-conviction proceedings. In all eases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review is barred unless the prisoner can show cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, - U.S. -, 111 S.Ct. 2546, 2551, 115 L.Ed.2d 640 (1991). Just as the state must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the state a full and fair opportunity to address and resolve the claim on the rner-its. Keeney v. Tamayo-Reyes,- U.S. -, -, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992). As noted, petitioner makes no claim of cause and prejudice, and this action does not involve the \"extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime\" so as to amount to a fundamental miscarriage of justice. McCleskey v. Zant, - U.S. , 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). Satter's failure to advance his insufficiency of evidence claim in his post-conviction appeal functions as an adequate and independent procedural default and thus bars review by this court. Although our inquiry need continue no further, we note that Satter’s underlying claim is without merit. Even if Satter’s petition were not procedurally barred, he would not be entitled to the relief he seeks. It is undisputed that the Double Jeopardy Clause does not bar retrial after appellate reversal for trial error. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Once a judgment is reversed for insufficient evidence, however, the Double Jeopardy Clause bars retrial. Burks" }, { "docid": "35627", "title": "", "text": "We have jurisdiction to review the dismissal of the habeas petition pursuant to 28 U.S.C. § 2253. Denial of petitioner’s habeas petition is subject to de novo review. See Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.1994). District court findings of fact are reviewed for clear error. See id. Petitioner challenges the constitutionality of his state conviction by seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. The federal courts will not review a habeas petition where the state prisoner has not first presented his claims to the state courts and exhausted all state court remedies available to him. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). When a habeas corpus petitioner was denied the opportunity to present his claims to the state courts because of procedural default, the federal courts will consider his habeas petition only under limited circumstances. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court explained that [i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750, 111 S.Ct. 2546. For purposes of federal review in habeas cases, we may consider as an adequate and independent state procedural rule only a state procedural rule that was “firmly established and regularly followed by the time as of which it [was] to be applied,” in this case during the time when petitioner had a right to a direct appeal. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quotation omitted); see also Warner v. United States, 975 F.2d 1207, 1213 (6th Cir.1992). Because M.C.R. 6.508(D)(3) was not enacted until 1989, long after the time for petitioner’s appeal of right, we must first determine whether Michigan’s prohibition against" }, { "docid": "1691364", "title": "", "text": "72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). Bennett did not appeal dismissal of the first petition in February 1990. In April 1990, Bennett filed this second habeas petition, raising eleven claims for relief. The district court granted the state’s motion to dismiss, concluding that all claims are procedurally barred because Bennett had “deliberately bypassed” state procedures through his “knowing and voluntary waiver of his rights to seek post-conviction relief in the Missouri state courts.” Bennett appeals, arguing that his sentence should be vacated because the “inherently unfair” agreement deprived him of his right to appellate review, and that the district court erred in dismissing his petition without an evidentiary hearing. II. Since the district court’s decision in this case, indeed, since oral argument, the law of procedural bar has changed. In determining whether Bennett’s habeas claims are barred by his failure to appeal, the district court applied the “deliberate bypass” standard of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), a case involving a habeas petitioner who, like Bennett, had “surrendered entirely his right to appeal.” However, in Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991), the Supreme Court expressly overruled this aspect of Fay v. Noia, explaining: We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. The cause and prejudice standard governs this appeal. We note that it was also applied in dismissing Bennett’s first habeas petition in February 1990. Bennett argues that his procedural default should be excused because his appeal rights were taken away by a fundamentally unfair agreement with the prosecution. But, as the district court noted, this argument misconstrues the terms of that agreement." }, { "docid": "468727", "title": "", "text": "all occasions where a procedural default bars state litigation of a constitutional claim. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. To establish cause, a petitioner must establish that some external impediment frustrated his ability to comply with the state’s procedural rule. Murray, 477 U.S. at 488, 106 S.Ct. 2639. A petitioner must present a substantial reason to excuse the default. Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988); Rust, 17 F.3d at 161. In this case, Petitioner neither alleges nor establishes cause to excuse his failure to timely seek leave to appeal his convictions and sentences to the Michigan Supreme Court. This Court need not address the issue of prejudice when a petitioner fails to establish cause to excuse a procedural default. See, e.g., Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir.1983). Petitioner’s claim is thus barred by procedural default. As noted, when a petitioner has defaulted his state remedies and has not demonstrated cause and prejudice, a federal court may entertain the habeas petition only if the petitioner makes a showing of actual innocence. Murray, 477 U.S. at 496, 106 S.Ct. 2639; see also Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (to establish actual innocence, meaning “factual innocence, not merely legal insufficiency,” a habeas petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him”). Petitioner has made no such showing in the case at hand. His habeas claims are thus barred by the doctrine of procedural default. IY. Conclusion For the reasons stated, the Court concludes that Petitioner’s claims are barred by procedural default and that he is not entitled to federal habeas relief on the claims presented. Accordingly, IT IS ORDERED that Petitioner’s request for habeas relief is DENIED and his application for writ of habeas corpus is DISMISSED WITH PREJUDICE. JUDGMENT The above-entitled matter having come before the Court on a Petition for" }, { "docid": "21099312", "title": "", "text": "MEMORANDUM DECISION AND ORDER REGARDING PROCEDURAL DEFAULT AND MOTION FOR EVI-DENTIARY HEARING WINMILL, District Judge. Pursuant to the court’s scheduling order, the parties to this habeas action have submitted briefs addressing the application of the procedural default bar to the grounds for relief set forth in the final petition for writ of habeas corpus. The parties also have filed briefs addressing the petitioner’s motion for a federal evidentiary hearing. Having examined the available law, the record and the materials submitted by the parties, the court now rules as follows. DISCUSSION A. Legal Framework: Exhaustion and Procedural Default Ordinarily, before a habeas court can consider the merits of a state prisoner’s petition for writ of habeas corpus, the court must be satisfied that each claim set forth in the petition is exhausted. See 28 U.S.C. § 2254(b) (application for a writ of habeas corpus cannot be granted unless the claims asserted have been exhausted in state court); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (same). “The exhaustion requirement may be satisfied in two ways: by showing either that no state remedies are available or that the state supreme court has been presented with a fair opportunity to rule on the merits of the claim.” Harmon v. Ryan, 959 F.2d 1457, 1460 (9th Cir.1992). Where no state remedies remain available, although the claim is deemed exhausted, the petitioner’s failure to timely seek state court review will often constitute a default under the state’s procedural rules. Id. at 1461. If a default rests on a state procedural rule that “provides an independent and adequate state-law ground for the conviction and sentence,” the habeas court must refrain from reviewing the claim unless the petitioner can demonstrate “cause and prejudice” or that a fundamental miscarriage of justice would result from a failure to entertain the claim. Gray v. Netherland, — U.S. -, ---, 116 S.Ct. 2074, 2080-81, 135 L.Ed.2d 457 (1996); Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir.1994). To obtain habeas review, then, the petitioner must satisfy the exhaustion requirement while, at the same time, avoiding procedural" }, { "docid": "2876078", "title": "", "text": "Recall that when a federal habeas petitioner’s state court claims are denied on procedural grounds, a four-part inquiry is employed to determine whether the claims have been procedurally defaulted for habeas corpus purposes. That inquiry, articulated in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986), is as follows: First the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule. Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under [Wainwright v.] Sykes[, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ] that there was “cause” for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138. The first two of the Maupin factors are easily satisfied here. Ohio Rev.Code § 2953.23 governs second or successive post-conviction relief petitions. In relevant part, it provides as follows: (A) [A] court may not entertain ... a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply: (1) Either of the following applies: (a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief. (b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner’s situation," }, { "docid": "13906859", "title": "", "text": "was procedurally barred by Nevada law. The court granted a certificate of appealability, and this appeal followed. DISCUSSION Loveland contends the Nevada Supreme Court’s holding that his claims were procedurally barred is not based on an adequate and independent state law ground because at the time he filed his state habeas petition, the Nevada state courts did not consistently apply Nevada Revised Statute § 34.726(1), and the Nevada Supreme Court at least partially denied his claims on the merits. I. Consistent Application of the Procedural Rule A state procedural bar rule is not adequate to preclude federal habeas review if the state rule is not consistently applied. See Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir.1996). We have held that as of 1996, the Nevada Supreme Court consistently applied the state rule barring review of the merits of an untimely post-conviction relief petition unless the petitioner demonstrates cause and prejudice for his procedural default. See id. at 1269-70. Loveland contends, however, that back in 1993, when he filed his state habeas petition, the procedural bar rule was not consistently applied. Loveland relies on the Nevada Supreme Court’s holdings in Glauner v. Nevada, 107 Nev. 482, 813 P.2d 1001 (1991) and Brimage v. Warden, Nev. State Prison, 94 Nev. 520, 582 P.2d 375 (1978). Those cases fail to support Loveland’s contention. In Glauner, the Nevada Supreme Court reversed and remanded a lower court’s decision dismissing a post-conviction relief petition. The Nevada Supreme Court concluded that the petition was timely, but even if it was not, the petitioner could attempt to show cause and prejudice to excuse his default. See Glauner, 813 P.2d at 1003. Thus, in Glauner, the Nevada Supreme Court considered the procedural bar rule, but found it inapplicable. In Brimage, the Nevada Supreme Court reversed a lower state court’s dismissal of a petition on procedural grounds, concluding that the petitioner had made an unopposed prima facie showing of good cause for the default. See Brimage, 582 P.2d at 376. While the Nevada Supreme Court did not discuss how the petitioner demonstrated good cause, it did not ignore the" }, { "docid": "19140313", "title": "", "text": "motion without oral or written reasons. According to Hoffman, he brought his claim of discrimination in the selection of the grand jury foreperson once again in state post-conviction proceedings and the state court denied it on the merits. The State replies that the state court held the claim to be procedurally barred in the May 1st order. The state court order does have suggestions of a merits decision, but it also explicitly references an earlier post-conviction hearing by the state court. At the earlier hearing, the state court found that Hoffman filed his motion to quash and then abandoned it; that when the trial court marked the motion satisfied it meant that Hoffman was not going to pursue the motion and therefore the claim would not be considered in post-conviction proceedings. In sum, the state court found that this claim of discrimination in selecting a grand jury foreperson was abandoned by Hoffman before trial and was procedurally barred. The State urges that this is as an independent and adequate state law decision which presents no clear error of federal law. “Out of respect for finality, comity, and the orderly administration of justice, a federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default.” The narrow exception is when the petitioner “can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty.” To determine whether the state court denied relief based on an adequate and independent state procedural rule, we examine the last reasoned state court decision to see whether it applies a procedural bar or addresses the merits of the claim. We agree with the district court’s determination that the record shows that the state court found the motion to be abandoned and procedurally barred; that this claim is procedurally defaulted; and that as Hoffman does not meet the narrow exception to such default," }, { "docid": "8772382", "title": "", "text": "with a specific state- ment of the facts entitling him to relief. “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.” [0]rdinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so. Here, therefore, Ortiz will have failed to exhaust his claims if he presents new legal theories or factual claims in his federal habeas petition which he failed to present in his state court appeals. B. Procedural Default on an Adequate and Independent State Law Ground Because the exhaustion requirement “refers only to remedies still available at the time of the federal petition,” the requirement is satisfied “if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law.” However, the procedural bar that gives rise to exhaustion also provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim unless the petitioner can demonstrate cause and prejudice for failing to present the claim to the state courts. “The existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” “Objective factors that constitute ‘cause’ include interference by officials that makes compliance with the State’s procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel.” To satisfy the “independent” and “adequate” requirement referenced above, the state court’s dismissal of the petitioner’s claim must “clearly and expressly” indicate that it rests on state grounds which bar relief. The state courts must follow the bar strictly and regularly and apply it to a majority of" }, { "docid": "4413137", "title": "", "text": "although never presented in a state forum, are barred due to a procedural default, could exercise jurisdiction and review the merits of a petitioner’s claim. Such a rule resolves the tension between Harris and Teague. Moreover, it demonstrates respect for state courts because it avoids burdening them with clearly defaulted claims. In addition, a state criminal defendant is not penalized by receiving an empty benefit — automatic exhaustion — at the price of incurring a certain detriment — lack of access to federal collateral review. Nonetheless, as previously noted, the Court’s decision in Teague bars federal review of the petitioner’s defaulted claims absent a showing of cause for the procedural default and resulting prejudice. Petitioner has failed to demonstrate either cause or prejudice for failing to present his improper identification and Second Circuit brief claims to the state courts. Accordingly, these claims are denied. C. Abuse of the Writ: Claims Based on Denial of Speedy Trial, the Prosecutor’s Second Circuit Brief and Ineffective Assistance of Counsel Even assuming that the adequate and independent state grounds doctrine does not preclude a federal habeas court from reaching the merits of Mr. Holmes’ claims, several of his claims are not susceptible to federal review due to petitioner’s abuse of the writ. These claims are ineffective assistance of appellate counsel, denial of a speedy trial, and the Second Circuit brief claim. Petitioner is entitled to federal habeas review of claims contained in a second or successive habeas petition only in the limited circumstances enunciated in 28 U.S.C. § 2244, Rule 9(b) of the Rules Governing Habeas Corpus Proceedings (the “Rules”), and McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Pursuant to Title 28, United States Code, Section 2244(b), a federal court may refuse to entertain a second or subsequent application for federal habeas relief unless the petition alleges a new ground and the petitioner did not deliberately withhold this new ground or “otherwise abuse the writ.” Expanding on this concept, Rule 9(b) provides that A second or successive petition may be dismissed if the judge finds that it fails" }, { "docid": "7411767", "title": "", "text": "Peterkin moved to reinstate his federal habeas corpus petition. We granted this request and gave the parties leave to file supplemental briefs on the effect of the Pennsylvania Supreme Court’s decision on the now-reinstated federal petition. Not surprisingly, it remains the respondents’ position that this Court is barred from considering those issues raised for the first time in Mr. Peterkin’s second PCRA petition as those claims have been procedurally defaulted. It is to this argument that we now turn first. Discussion A. Procedural Default of Mr. Peter-kin’s Claims. As we discussed in our December, 1998 Memorandum dismissing Mr. Peterkin’s habeas corpus petition without prejudice, in the absence of a valid excuse, a prisoner must first present all federal claims to all levels of the state courts before a district court may entertain a federal habeas petition. Caswell v. Ryan, 953 F.2d 858, 857 (3d Cir.1992), cert. denied, 504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992), citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). This exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. Id. Where, however, state procedural rules bar a petitioner from seeking further relief in the state courts, the exhaustion requirement is satisfied because there is an absence of available state corrective process. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.2000); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999). See Also: Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). However, this is not to say that a federal court may without more, then proceed to consider the merits. To the contrary, claims deemed exhausted because of a state procedural rule are procedurally defaulted, and federal courts may not consider their merits unless the petitioner demonstrates that (1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not" } ]

[ { "docid": "22104233", "title": "", "text": "Justice Kennedy delivered the opinion of the Court. Section 1404(a) of Title 28 states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U. S. C. § 1404(a) (1982 ed.). In Van Dusen v. Barrack, 376 U. S. 612 (1964), we held that, following a transfer under § 1404(a) initiated by a defendant, the transferee court must follow the choice-of-law rules that prevailed in the transferor court. We now decide that, when a plaintiff moves for the transfer, the same rule applies. I Albert Ferens lost his right hand when, the allegation is, it became caught in his combine harvester, manufactured by Deere & Company. The accident occurred while Ferens was working with the combine on his farm in Pennsylvania. For reasons not explained in the record, Ferens delayed filing a tort suit, and Pennsylvania’s 2-year limitations period expired. In the third year, he and his wife sued Deere in the United States District Court for the Western District of Pennsylvania, raising contract and warranty claims as to which the Pennsylvania limitations period had not yet run. The District Court had diversity jurisdiction, as Ferens and his wife are Pennsylvania residents, and Deere is incorporated in Delaware with its principal place of business in Illinois. Not to be deprived of a tort action, the Ferenses in the same year filed a second diversity suit against Deere in the United States District Court for the Southern District of Mississippi, alleging negligence and products liability. Diversity jurisdiction and venue were proper. The Ferenses sued Deere in the District Court in Mississippi because they knew that, under Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487, 496 (1941), the federal court in the exercise of diversity jurisdiction must apply the same choice-of-law rules that Mississippi state courts would apply if they were deciding the case. A Mississippi court would rule that Pennsylvania substantive law controls the personal injury claim but that Mississippi’s own law governs the limitation" } ]

[ { "docid": "11538718", "title": "", "text": "(1980); Holley v. Burroughs Wellcome Co., 74 N.C.App. 736, 330 S.E.2d 228 (1985); Byrd Motor Lines v. Dunlop Tire & Rubber, 63 N.C.App. 292, 304 S.E.2d 773, 778 (1983). Accordingly, summary judgment is granted as to the claim sounding in strict liability. The Plaintiff’s negligence allegations claim that Defendants breached a duty to warn of dangerous qualities inherent in the Ford Escort in which she was a passenger, which was designed, manufactured, and installed with a tempered glass sunroof that shattered when the vehicle rolled over, allegedly causing Plaintiff to be ejected from the vehicle. In essence, Plaintiff alleges that the vehicle was not crashworthy. In Plaintiff’s breach of warranty allegations, she asserts that Defendants impliedly warranted that the vehicle was crashworthy and suitable for its intended use. Plaintiff further alleges that she relied upon that implied warranty and that Defendants’ breach of the warranty caused her injury. The North Carolina Supreme Court has not ruled on whether allegations that a vehicle was crashworthy or that the condition of a vehicle enhanced a Plaintiff’s injuries state a cause of action under either negligence or breach of implied warranty. The Circuit Court of Appeals for the Fourth Circuit, in which North Carolina is situated, has on three occasions had the opportunity to predict whether the North Carolina Supreme Court would recognize a negligence theory of crashworthiness and/or enhanced injury. Erwin v. Jeep Corp., 812 F.2d 172 (4th Cir.1987); Martin v. Volkswagen of America, Inc., 707 F.2d 823 (4th Cir.1983); Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir.1980). In all three cases, the Fourth Circuit predicted that the North Carolina Supreme Court would not recognize the doctrine of crash- worthiness and/or enhanced injury. In making these rulings, the Circuit Court of Appeals for the Fourth Circuit specifically relied upon the State Supreme Court’s refusal to adopt the doctrine of strict tort liability. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504, 509-10 (1980). Circuit Judge Philips in his special concurrence in the Martin opinion stated as follows: ... North Carolina courts have not [adopted] such doctrinal expansions as" }, { "docid": "14216909", "title": "", "text": "POSNER, Circuit Judge. Tina Barron, age 18, was rendered paraplegic and forced onto the welfare rolls as the result of an accident in 1984 in which the car she was riding in (driven by her sister) skidded on a rain-slick highway in North Carolina and turned over. Because Barron was not wearing a seatbelt (al though the car was equipped with seat-belts), she was flung out of the car, either through the closed sunroof, as she claims, or through the window on the passenger’s side of the front seat, which was also closed. Although a citizen of Illinois, Barron brought suit against Ford Motor Company of Canada, the manufacturer of the car, in a Florida state court. The parties being of diverse citizenship and Ford not a citizen of Florida, Ford was able to remove the case to federal district court in Florida, from which it sought to transfer the case, on grounds of convenience, 28 U.S.C. § 1404(a), to the Eastern District of North Carolina. The plaintiff countered with a request to transfer the case to the Central District of Illinois, and her request was granted and the case transferred. Applying Florida’s rules on conflict of laws (and thus anticipating Ferens v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990), which holds that the transferee court must apply the conflict of laws rules of the transferor jurisdiction whether the defendant or the plaintiff requested the transfer), Judge Mihm ruled that the law of North Carolina — as it happens, the only state in the United States not to recognize strict liability in products cases, Smith v. Fiber Controls Corp., 300 N.C. 669, 678, 268 S.E.2d 504, 509-10 (1980); Warren v. Colombo, 93 N.C.App. 92, 102, 377 S.E.2d 249, 255 (1989)—governed the substantive issues in the case. 716 F.Supp. 377 (C.D.Ill.1989). A two-week jury trial, in which the plaintiff tried to prove that she had been ejected through the sunroof and that Ford had been negligent in making the sunroof out of tempered rather than laminated glass, ended in a verdict for Ford. Barron argues" }, { "docid": "21588579", "title": "", "text": "RYAN, Circuit Judge. This case presents a choice of law problem well-suited for a law school civil procedure examination. It requires us to decide whether Michigan or Florida law governs the plaintiff’s product liability action. We conclude that Michigan law controls and, therefore, reverse the judgment of the district court. I. On April 16, 1985, Mario Mahne, a Florida resident, was a passenger in a 1967 Ford Mustang that was rear-ended by another vehicle and burst into flames. The accident occurred in Florida. As a result of the accident, Miss Mahne, then 15 years old, was severely burned. Her mother and next friend, Christine Mahne, brought a products liability action against defendant Ford Motor Company in a Michigan state court. Defendant’s headquarters and principal place of business are located in Michigan and the design, testing, and manufacture of the 1967 Ford Mustang occurred there. The Michigan lawsuit was dismissed on forum non conveniens grounds, following which plaintiff brought suit in a Florida state court. She voluntarily dismissed that action when defendants argued that the suit was foreclosed by the Florida statute of repose which bars product liabili ty actions brought twelve years after the date of delivery of the completed product to its original purchaser. Fla.Stat. § 95.031(2) (1985) (amended 1986). Plaintiff then brought the present action against Ford and two of its officers in the District Court for the Eastern District of Michigan, pursuant to the court’s diversity jurisdiction. 28 U.S.C. § 1332. Plaintiff alleged that defendants breached an implied warranty of fitness and negligently designed, manufactured, and tested the vehicle’s fuel system and rear-end structure. Defendants filed a motion to dismiss, maintaining that the law of Florida, the place of the accident, controlled, and that Florida’s statute of repose barred plaintiff’s suit. Plaintiff responded that Michigan, not Florida, law governed the question of the timeliness of the lawsuit in the federal court. The district court, relying upon Hampshire v. Ford Motor Co., 155 Mich.App. 143, 399 N.W.2d 36 (1986), Iv. denied, 428 Mich. 852 (1987), determined that Florida law was controlling and that its statute of repose, as" }, { "docid": "11538719", "title": "", "text": "state a cause of action under either negligence or breach of implied warranty. The Circuit Court of Appeals for the Fourth Circuit, in which North Carolina is situated, has on three occasions had the opportunity to predict whether the North Carolina Supreme Court would recognize a negligence theory of crashworthiness and/or enhanced injury. Erwin v. Jeep Corp., 812 F.2d 172 (4th Cir.1987); Martin v. Volkswagen of America, Inc., 707 F.2d 823 (4th Cir.1983); Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir.1980). In all three cases, the Fourth Circuit predicted that the North Carolina Supreme Court would not recognize the doctrine of crash- worthiness and/or enhanced injury. In making these rulings, the Circuit Court of Appeals for the Fourth Circuit specifically relied upon the State Supreme Court’s refusal to adopt the doctrine of strict tort liability. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504, 509-10 (1980). Circuit Judge Philips in his special concurrence in the Martin opinion stated as follows: ... North Carolina courts have not [adopted] such doctrinal expansions as strict liability and comparative negligence. While to some this may appear unenlightened, it may to others reflect a completely respectable and deep-seated attitude of judicial restraint and deference to legislative primacy in making significant changes in the long-established common law tort doctrine. In any event, judicial restraint in these related areas is a fact that must be taken into account by a federal diversity court in assessing the probable view of North Carolina’s appellate courts on the propriety of judicially adopting the crashworthiness doctrine. 707 F.2d at 826. Shortly before oral argument on Defendants’ Motion for Summary Judgment was heard, the North Carolina Court of Appeals issued its opinion in the case of Warren v. Columbo, 377 S.E.2d 249 (N.C.App.1989). The justices in the Warren case wrote three separate opinions. In Judge Orr’s lead opinion, he found that the plaintiff’s complaint of enhanced injuries sufficiently stated a cause of action sounding in negligence. (Warren, at 255). He specifically refused to consider the issue of whether the plaintiff's complaint stated a cause of action under a" }, { "docid": "14216912", "title": "", "text": "and references cited there. The difference between the two grounds of liability bites when the defendant is being sued for a product defect created by a component that he had bought, and he could not be sued for negligence because he used all due care in buying, inspecting, and installing it, so that he was without blame yet is liable nonetheless if liability is strict. Id. That is not an issue in this case. Ford did not buy the sunroof; it designed, manufactured, and installed it. So this appears to be a case of a false conflict; but if he had to choose, Judge Mihm was right to apply North Carolina law rather than (as the plaintiff urges) Illinois law. It is true that Barron was a citizen of Illinois before she made a visit of several months’ duration to her sister in North Carolina, in the course of which the accident occurred; and after a brief period of hospitalization in North Carolina she returned to Illinois, where she remains today, a public charge. And it is true that Ford of Canada (or for that matter its American parent) is not a citizen of North Carolina. But in Florida as in most states (for remember that it is Florida conflict of laws principles that govern this case), despite the inroads that “interest analysis” and “most significant relationship” inquiry have made on the simplicities of the old common law conflicts principles, the presumption remains that the law of the state in which the accident occurred governs tort claims arising from the accident, Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980); State Farm Mutual Automobile Ins. Co. v. Olsen, 406 So.2d 1109, 1111 (Fla.1981), although the presumption is rebuttable. Wal-Mart Stores, Inc. v. Budget Rent-A-Car Systems, 567 So.2d 918, 920 (Fla.App.1990). That state is concerned in an accident even if neither party is a resident— clearly so in a case such as this, where one of the parties to the accident, albeit not to the lawsuit, was a resident of the state (Tina Barron’s sister). And its tort principles" }, { "docid": "14216916", "title": "", "text": "at least as the plaintiff understands that rule — would thus rule out Ford’s presenting evidence, as it did, that Tina Barron was not wearing her seatbelt when the accident occurred. It is true that this was not the focus, at least not the nominal focus, of the testimony about seat-belts. Ford’s point was merely that the provision of seatbelts was a part of the automobile’s overall restraint system, so that the reasonableness of making the sunroof of tempered rather than of laminated glass was a function in part of the other steps Ford had taken to prevent occupants from being flung out. But it could not make the argument without indicating that Barron had not been wearing her seatbelt, since if she had been and it had not kept her from flying through the sunroof Ford’s argument about its total restraint system would fall flat on its face. The literal interpretation of North Carolina’s rule, though, is almost certainly incorrect. In State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991), a prosecution of a woman for murdering her disabled daughter by abandoning her car with the daughter in it on a railroad crossing, the Supreme Court of North Carolina remarked, without criticism, the introduction of evidence that the daughter knew how to release her seatbelt; it never occurred to anyone that such evidence might be inadmissible. If it were inadmissible under North Carolina law, moreover, this might not help the plaintiff in this case. Even in diversity cases the rules of evidence applied in federal courts are the federal rules of evidence rather than state rules, Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir.1989); In re Air Crash Disaster Near Chicago, 701 F.2d 1189, 1193 (7th Cir.1983); Romine v. Parman, 831 F.2d 944 (10th Cir.1987), save with respect to matters of presumptions, privilege, and competency of witnesses, Fed.R.Evid. 302, 501, 601, none of which is involved here. If North Carolina’s rule against the admission of testimony about a failure to wear one’s seatbelt is a rule of evidence, it is inapplicable to this" }, { "docid": "3994046", "title": "", "text": "claim because alleged statement that product would “do a good job” was not sufficient as a matter of law to create an express warranty). Accordingly, the statements relied upon by plaintiffs are insufficient to create an express warranty and plaintiffs’ claim for breach of such a warranty must he dismissed on this independent ground. C. Strict Liability The absence of evidence of a defect also warrants dismissal of plaintiffs’ claims for strict products liability. However, another independent basis exists for dismissing plaintiffs’ strict liability claim. North Carolina has not recognized a cause of action for strict liability in products liability cases. See Smith v. Fiber Controls Corporation, 300 N.C. 669, 678, 268 S.E.2d 504, 509-10 (1980) (refusing to adopt strict liability in products liability cases in light of North Carolina legislature’s failure to adopt such a theory in enacting Chapter 99B of North Carolina General Statutes governing products liability actions); Warren v. Colombo, 93 N.C.App. 92, 102, 377 S.E.2d 249, 255 (1989). Moreover, to the extent North Carolina law recognizes claims for strict liability in any context, such claims exist only for ultra hazardous activities. See Woodson v. Rowland, 329 N.C. 330, 351, 407 S.E.2d 222, 234 (1991); Driver v. Burlington Aviation, Inc., 110 N.C.App. 519, 530, 430 S.E.2d 476, 483-84 (1993). The court holds as a matter of law that even if North Carolina recognized strict products liability claims, the sale and installation of carpet cannot be considered an ultra hazardous activity, and, thus, plaintiffs’ claims for strict liability must be dismissed on this independent ground. See Driver, supra (affirming dismissal of strict liability claim based on manufacturer’s failure to properly instruct pilot on risk of carburetor icing in small passenger áircraft); see also Woodson, supra (noting that North Carolina courts have not recognized any activity, other than blasting, as ultra hazardous). CONCLUSION Defendants’ motion to strike the affidavit and testimony of Dr. Rosalind Anderson will be granted pursuant to F.R.Civ.P. 56(e) because her opinion testimony would not be admissible under F.R.E. 702 and the Supreme Court’s recently announced standard in Daubert. Without such evidence, plaintiffs have failed to" }, { "docid": "14216911", "title": "", "text": "to begin with that the judge should have applied Illinois law, which imposes strict liability in products cases, rather than North Carolina law, which requires the plaintiff to prove negligence. It is not easy to see what difference this would have made to the outcome of the case; and before entangling itself in messy issues of conflict of laws a court ought to satisfy itself that there actually is a difference between the relevant laws of the different states. International Administrators, Inc. v. Life Ins. Co., 753 F.2d 1373, 1376 n. 4 (7th Cir.1985). There might seem to be all the difference in the world between negligence and strict liability, but in a products liability case this often is not true. The plaintiff must prove either that the product was defective or that it was unreasonably dangerous, and in determining whether a product is “defective” or “unreasonably” dangerous the court weighs costs and benefits just as it would do in a negligence case. See Flaminio v. Honda Motor Co., 733 F.2d 463, 467 (7th Cir.1984), and references cited there. The difference between the two grounds of liability bites when the defendant is being sued for a product defect created by a component that he had bought, and he could not be sued for negligence because he used all due care in buying, inspecting, and installing it, so that he was without blame yet is liable nonetheless if liability is strict. Id. That is not an issue in this case. Ford did not buy the sunroof; it designed, manufactured, and installed it. So this appears to be a case of a false conflict; but if he had to choose, Judge Mihm was right to apply North Carolina law rather than (as the plaintiff urges) Illinois law. It is true that Barron was a citizen of Illinois before she made a visit of several months’ duration to her sister in North Carolina, in the course of which the accident occurred; and after a brief period of hospitalization in North Carolina she returned to Illinois, where she remains today, a public charge. And" }, { "docid": "23504468", "title": "", "text": "PER CURIAM: The sole issue on appeal in this diversity case is whether, under the law of North Carolina, an automobile manufacturer may be held liable for defects in the design and manufacture of a vehicle which neither caused nor contributed to the cause of a collision, but served to exacerbate injuries sustained thereafter. See Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This is a question of law, Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1069 (4th Cir. 1974), and has not yet been addressed by the Supreme Court of that State (or by the intermediate appellate courts). Thus, it falls to the federal courts to forecast what the North Carolina Supreme Court would hold if presented with this issue. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); McClung v. Ford Motor Company, 472 F.2d 240 (4th Cir. 1973). The district court, after a careful review of related State cases and of the several and divergent federal court determinations of the issue, ruled that the North Carolina Supreme Court would not hold a manufacturer liable for injuries arising from defects which neither caused nor contributed to the accident. We find no reversible error in this conclusion and, for reasons sufficiently stated in its Memorandum and Order of April 9,1980, the judgment of the district court is AFFIRMED. . In the case of Seese, et al v. Volkswagenwerk AG, etc., 648 F.2d 833 (3d Cir. 1981), the court, in a divided opinion, predicted that North Carolina would adopt the second crash theory. The dissent argued that even if the second crash theory were applicable, judgment for the plaintiff was subject to error. The rejection by North Carolina, however, in Smith v. Fiber Control Corporation, 300 N.C. 669, 268 S.E.2d 504 (1980), of the principle of strict liability in tort fortifies our belief that if called upon the Supreme Court of North Carolina would also reject the second crash theory." }, { "docid": "8006139", "title": "", "text": "The Court erred in allowing Reinaldo Irizarry’s “Day in the Life Film” into evidence and raised the false issue of bifurcation. The jury during the trial was exposed to a television program, highly critical of defendants, on which plaintiffs’ expert appeared all to the prejudice of defendants. The Court improperly compelled Ian Ceresney, Esq., to testify at trial. . The relevant portions of Rule 47(b) of the Fed.R.Civ.P. and Fed.R.Crim.P. 24(c) are identical, and both read: An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. ADAMS, Circuit Judge, dissenting. Recognizing that we are dealing with issues that have come to the fore after a lengthy trial and subsequent to the painstaking efforts of the trial judge to resolve difficult questions about the development of tort law in North Carolina, it is with some hesitance that I dissent from the panel’s disposition of this appeal. I. At a minimum, I believe that removal of the strict liability claim from the controversy necessitates a remand for a new trial on damages. As the majority correctly notes, the Erie principle mandating that state substantive law governs in diversity actions, requires that “until such time as a case is no longer sub judice, the duty rests upon federal courts to apply state law ... in accordance with the then controlling decision of the highest state court.” Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941) (emphasis added); Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir. 1979). Consequently, the recent state supreme court decision in' Smith v. Fiber Control Corp., 300 N.C. 669, 268 S.E.2d 504 (1980), handed down subsequent to the trial court judgment, which refused to adopt the principle of strict liability in tort, vitiates the district court’s prediction that North Carolina would embrace the strict liability theory. I therefore agree with the majority’s holding that it was error for the district court to permit the jury to consider the plaintiffs’ strict liability claim. But I cannot adhere to the ultimate conclusion" }, { "docid": "3994045", "title": "", "text": "Everglade carpet “was a higher quality carpet than what she [Ms. Ruffin] brought in [to the store].” (Roger L. Parker Deposition at p. 12.) Plaintiffs also rely on Mr. Parker’s statement to Ms. Ruffin that she was getting “a very good grade of material.” [Id. at p. 13.) These statements are merely “puffing” or Mr. Parker’s opinion or commendations on the product’s value. See Performance Motors, Inc. v. Allen, 280 N.C. 385, 393-94, 186 S.E.2d 161, 166 (1972) (statement that product “was supposed to last a lifetime and be in perfect condition” was an expression of opinion and did not create an express warranty); Warzynski v. Empire Comfort Systems, Inc., 102 N.C.App. 222, 226, 401 S.E.2d 801, 803-04 (1991) (affirming summary judgment based on finding that advertisement purporting to sell “America’s most complete line of reliable economical gas heating appliances” was merely puffing and could not create an express warranty as a matter of law); see also Delta Marine, Inc. v. Whaley, 813 F.Supp. 414, 420 (E.D.N.C.1993) (granting summary judgment on breach of express warranty claim because alleged statement that product would “do a good job” was not sufficient as a matter of law to create an express warranty). Accordingly, the statements relied upon by plaintiffs are insufficient to create an express warranty and plaintiffs’ claim for breach of such a warranty must he dismissed on this independent ground. C. Strict Liability The absence of evidence of a defect also warrants dismissal of plaintiffs’ claims for strict products liability. However, another independent basis exists for dismissing plaintiffs’ strict liability claim. North Carolina has not recognized a cause of action for strict liability in products liability cases. See Smith v. Fiber Controls Corporation, 300 N.C. 669, 678, 268 S.E.2d 504, 509-10 (1980) (refusing to adopt strict liability in products liability cases in light of North Carolina legislature’s failure to adopt such a theory in enacting Chapter 99B of North Carolina General Statutes governing products liability actions); Warren v. Colombo, 93 N.C.App. 92, 102, 377 S.E.2d 249, 255 (1989). Moreover, to the extent North Carolina law recognizes claims for strict liability in" }, { "docid": "14216932", "title": "", "text": "dependence on the rescue workers’ evidence, which Ford had controverted. So there was error, but, as with many evidentiary rulings, it was harmless. Even if, given the trooper’s testimony, the jury would have been sure that Barron had gone through the sunroof, it is highly unlikely that they would have brought in a verdict for her. The evidence of Ford’s negligence was very weak, even if one believed that laminated glass was safer in the relevant respect than tempered glass. Common sense says that sunroofs meant to be opened need not be built to restrain an occupant who declines to fasten her seat-belt. Affirmed. RIPPLE, Circuit Judge, concurring. I join the judgment of the court and concur in the essential reasoning of the thoughtful opinion filed by the majority. The choice of law issue in this case clearly is governed by the rule in Ferens v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990), and, under that rule, Florida choice of law rules are applicable. Those rules clearly point to North Carolina as the jurisdiction whose substantive law applies. This choice of law issue is, in my view, quite clear-cut and can be made without deciding definitively whether North Carolina negligence law is the same as Illinois strict liability law. In my view, this latter question is a far more difficult one than my brothers acknowledge. The majority also offers a shorthand approach to the difficult and nuanced substance-procedure dichotomy of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). While the brightline “in the courtroom — out of the courtroom” distinction suggested by my colleagues may be helpful in understanding the case before us, it hardly provides adequately for all the constitutional and policy concerns that animate the Erie doctrine. Here, it is quite clear, in my view, that the North Carolina rule is a matter of substance. On the merits, I agree with the majority that the North Carolina seat belt rule is not intended to preclude evidence that the presence of such a device makes it" }, { "docid": "8006087", "title": "", "text": "the district court’s ruling, which predicted the adoption of strict liability by North Carolina, more than fifteen years had elapsed since the North Carolina Supreme Court decided Wilson v. Lowe's Asheboro Hardware, Inc., 259 N.C. 660, 131 S.E.2d 501 (1963). Wilson held that in North Carolina the obligation of a manufacturer to the consumer was governed by the law of negligence, not by any concept of strict liability. Against this background, the district court predicted that if the North Carolina Supreme Court were faced with the questions of whether it should apply a strict liability theory, it would reject its prior Wilson decision, and would follow the lead of the vast majority of states and would adopt § 402A as North Carolina law. The district court, in reaching its conclusion, relied on National Surety Corp. v. Midland Bank, 551 F.2d 21 (3d Cir. 1977) which held that a federal district court, while it may not ignore the decision of an intermediate [state] appellate court, is free to reach a contrary result if by analyzing “other persuasive data; [it] predicts] that the [North Carolina Supreme Court] would hold otherwise.” Id. at 30. It did so without recognizing that here, the Supreme Court of North Carolina had already spoken to this issue (in Wilson), whereas in National Surety Corp. there had been no New Jersey Supreme Court decision which had dealt with the question that was in controversy there. It was only after the district court’s decision in this case, but during the pendency of this appeal, that the North Carolina Supreme Court in Smith v. Fiber Control Corp., 800 N.C. 669, 268 S.E.2d 504 (1980), refused to adopt the principle of strict liability in tort. In Smith, a personal injury action had been brought against the manufacturer of a machine which was responsible for injuring an employee who was working in a textile mill. The issue deemed dispositive by the Supreme Court of North Carolina was “whether there was sufficient evidence to carry the case to the jury on the question of contributory negligence.” Id. at 507. In concluding that contributory" }, { "docid": "14216913", "title": "", "text": "it is true that Ford of Canada (or for that matter its American parent) is not a citizen of North Carolina. But in Florida as in most states (for remember that it is Florida conflict of laws principles that govern this case), despite the inroads that “interest analysis” and “most significant relationship” inquiry have made on the simplicities of the old common law conflicts principles, the presumption remains that the law of the state in which the accident occurred governs tort claims arising from the accident, Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980); State Farm Mutual Automobile Ins. Co. v. Olsen, 406 So.2d 1109, 1111 (Fla.1981), although the presumption is rebuttable. Wal-Mart Stores, Inc. v. Budget Rent-A-Car Systems, 567 So.2d 918, 920 (Fla.App.1990). That state is concerned in an accident even if neither party is a resident— clearly so in a case such as this, where one of the parties to the accident, albeit not to the lawsuit, was a resident of the state (Tina Barron’s sister). And its tort principles may be informed by familiarity with local conditions, which is another reason to apply those principles rather than the tort law of the plaintiffs or the defendant’s domicile. William F. Baxter, “Choice of Law and the Federal System,” 16 Stan. L.Rev. 1 (1963). A further reason to doubt that Barron was placed at a disadvantage by the application of North Carolina law to her ease is that it is North Carolina law that arms her with the ground of appeal she presses most strongly — that the judge should not have let Ford introduce any evidence about seatbelt use because North Carolina has a strong common law rule, now codified by statute, that evidence that a plaintiff didn’t fasten his seatbelt is inadmissible in any civil action. Hagwood v. Odom, 88 N.C.App. 513, 516-17, 364 S.E.2d 190, 191-92 (1988). This may be, as we shall see, an overbroad statement of the common law rule; and yet the statute (which is not applicable to this case, however, because the case arose before its effective date) goes" }, { "docid": "10208146", "title": "", "text": "not appropriate because plaintiff has failed to show that transfer is necessary for the convenience of the parties or witnesses or due to choice of law issues. See Def. Resp. at 2-4. As for transfer under 28 U.S.C. § 1406(a), defendant argues that because venue is proper in the Eastern District of North Carolina, transfer is not proper under section 1406(a). See Def. Resp. at 4. • The court concludes that transfer is appropriate under both section 1404(a) and section 1406(a). As for section 1404(a), the question of transfer under section 1404(a) is committed to the sound discretion of the district court. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1257 (4th Cir.1991). In exercising its discretion, the court finds that the alleged negligent acts occurred in New Mexico; therefore, any witnesses to the repair and documents related to the repair are in New Mexico. Defendant also is a New Mexico citizen and its principal place of business is in New Mexico. See Chase Aff. Thus, litigation in New Mexico will be much more convenient for defendant. Although plaintiff .will have to travel to New Mexico, plaintiff (as the party requesting a transfer) obviously is willing to travel there for purposes of this case. Moreover, given that the accident happened in Indiana, if testimony is needed from any witness in Indiana, such testimony may be obtained by deposition. The same holds true if plaintiff needs to obtain testimony from any treating physicians in North Carolina. As for choice of law, the parties apparently agree that the substantive law of Indiana will govern this negligence action. See Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849, 854 (1988) (North Carolina applies lex loci delicti choice of law rule in negligence cases); Torres v. State, 119 N.M. 609, 894 P.2d 386, 390 (1995) (generally, New Mexico applies lex loci delicti choice of law rule in negligence cases); Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362, 363 (1961). Assuming that Indiana law applies," }, { "docid": "21588580", "title": "", "text": "was foreclosed by the Florida statute of repose which bars product liabili ty actions brought twelve years after the date of delivery of the completed product to its original purchaser. Fla.Stat. § 95.031(2) (1985) (amended 1986). Plaintiff then brought the present action against Ford and two of its officers in the District Court for the Eastern District of Michigan, pursuant to the court’s diversity jurisdiction. 28 U.S.C. § 1332. Plaintiff alleged that defendants breached an implied warranty of fitness and negligently designed, manufactured, and tested the vehicle’s fuel system and rear-end structure. Defendants filed a motion to dismiss, maintaining that the law of Florida, the place of the accident, controlled, and that Florida’s statute of repose barred plaintiff’s suit. Plaintiff responded that Michigan, not Florida, law governed the question of the timeliness of the lawsuit in the federal court. The district court, relying upon Hampshire v. Ford Motor Co., 155 Mich.App. 143, 399 N.W.2d 36 (1986), Iv. denied, 428 Mich. 852 (1987), determined that Florida law was controlling and that its statute of repose, as substantive law, barred plaintiff's products liability action. This appeal followed. The sole issue before us is whether Michigan’s choice-of-law rules would require that Florida’s statute of repose be applied in favor of a Michigan manufacturer, thus barring plaintiff’s products liability claim. II. It is elemental that when jurisdiction is based on diversity of citizenship, a federal court must apply the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Since plaintiffs action was brought in the United States District Court for the Eastern District of Michigan, Michigan choice-of-law rules apply. Prior to 1982, Michigan courts, in deciding choice-of-law issues, applied the substantive law of the jurisdiction where the wrong occurred, the so-called lex loci delicti rule. Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969). However, in Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 320 N.W.2d 843 (1982), a majority of the court, speaking through multiple opinions, was critical of the rigidities of lex loci" }, { "docid": "11538717", "title": "", "text": "MEMORANDUM OPINION MIHM, District Judge. Plaintiff’s Complaint sounds in negligence, strict liability and breach of implied warranty. Defendants filed a Motion for Summary Judgment on all three counts, premised on North Carolina’s substantive law. A hearing was held at which the Court heard arguments by the parties and ruled that the Motion for Summary Judgment as to the strict liability claim was granted but denying the Motion as to the negligence and breach of warranty claims. The Court indicated it would memorialize its ruling in a written opinion; this is that opinion. Plaintiff's count in strict liability alleges that Defendants’ use of a tempered glass sunroof created an ultrahazardous condition and that the sunroof shattered when the vehicle rolled over and caused the Plaintiff to be seriously injured when she was ejected from the vehicle. Plaintiff further alleges that the ultrahazardous condition existed when the vehicle left the manufacturer’s control. North Carolina substantive law does not recognize the doctrine of strict tort liability. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504, 509-10 (1980); Holley v. Burroughs Wellcome Co., 74 N.C.App. 736, 330 S.E.2d 228 (1985); Byrd Motor Lines v. Dunlop Tire & Rubber, 63 N.C.App. 292, 304 S.E.2d 773, 778 (1983). Accordingly, summary judgment is granted as to the claim sounding in strict liability. The Plaintiff’s negligence allegations claim that Defendants breached a duty to warn of dangerous qualities inherent in the Ford Escort in which she was a passenger, which was designed, manufactured, and installed with a tempered glass sunroof that shattered when the vehicle rolled over, allegedly causing Plaintiff to be ejected from the vehicle. In essence, Plaintiff alleges that the vehicle was not crashworthy. In Plaintiff’s breach of warranty allegations, she asserts that Defendants impliedly warranted that the vehicle was crashworthy and suitable for its intended use. Plaintiff further alleges that she relied upon that implied warranty and that Defendants’ breach of the warranty caused her injury. The North Carolina Supreme Court has not ruled on whether allegations that a vehicle was crashworthy or that the condition of a vehicle enhanced a Plaintiff’s injuries" }, { "docid": "8006088", "title": "", "text": "persuasive data; [it] predicts] that the [North Carolina Supreme Court] would hold otherwise.” Id. at 30. It did so without recognizing that here, the Supreme Court of North Carolina had already spoken to this issue (in Wilson), whereas in National Surety Corp. there had been no New Jersey Supreme Court decision which had dealt with the question that was in controversy there. It was only after the district court’s decision in this case, but during the pendency of this appeal, that the North Carolina Supreme Court in Smith v. Fiber Control Corp., 800 N.C. 669, 268 S.E.2d 504 (1980), refused to adopt the principle of strict liability in tort. In Smith, a personal injury action had been brought against the manufacturer of a machine which was responsible for injuring an employee who was working in a textile mill. The issue deemed dispositive by the Supreme Court of North Carolina was “whether there was sufficient evidence to carry the case to the jury on the question of contributory negligence.” Id. at 507. In concluding that contributory negligence was properly submitted to the jury, the Court specifically addressed the issue of strict liability in product liability actions. Because the North Carolina Supreme Court’s statement in this respect answers the arguments urged upon us by Seese, we quote this portion of Smith in full: Finally, plaintiff and amicus curiae urge this Court to adopt the doctrine of strict liability in product liability actions. In response to this request, we note that recent comprehensive legislation in this area by the General Assembly does not adopt strict liability in product liability cases. See G.S. 99B-1, et seq. (the 1979 Products Liability Act). Significantly, the Products Liability Act specifically reaffirms the applicability of contributory negligence as a defense in product liability actions. G.S. 99B-4(3). Suffice it to say, that given the recent legislative activity in this area, we are not presently inclined to consider adoption of the rule of strict liability in product liability cases. 268 S.E.2d at 509-10. Seese, on appeal, attempts to distinguish the clear impact of Smith. He argues that in Smith the" }, { "docid": "14216926", "title": "", "text": "v. Schmutz Mfg. Co., 734 F.2d 1218, 1220 (7th Cir.1984), by extrapolation from the rule that requires a potential injurer to take special precautions when children are known to be in the vicinity. Prosser and Keeton on the Law of Torts § 33, at pp. 199-200 (W. Page Keeton et al. eds. 5th ed. 1984). But this is just to say that Ford’s evidence that it had provided a seatbelt system as its main defense against the type of injury that occurred in this case was not conclusive on the issue of due care. The question is whether it was barred by the North Carolina rule. It was not. Either the rule is a substantive rule, and inapplicable because limited to the (partial) defense of avoidáble consequences, or an evidentia-ry rule and therefore inapplicable to proceedings in federal courts. Either way, the seatbelt evidence was admissible. The plaintiff complains separately that Ford harped on the seatbelt issue unmercifully, for example by asking the plaintiff whether she had taken a driver’s education course in which the use of seatbelts had been explained (her answer was yes). But the plaintiff’s lawyer set her up for this damaging line of inquiry. An auxiliary theory of her case was that Ford should have warned occupants of the car that the sunroof wouldn’t hold them in and that they should therefore fasten their seat-belts. Stegall v. Catawba Oil Co., 260 N.C. 459, 464, 133 S.E.2d 138, 142 (1963); Ziglar v. E.I. du Pont de Nemours & Co., 53 N.C.App. 147, 151, 280 S.E.2d 510, 513 (1981). It was relevant to this issue for Ford to show that Barron didn’t need any warnings about the dangers of not fastening her seatbelt because she had learned all about that in the driver’s ed course. Another issue is whether the judge should have allowed the plaintiff’s lawyer to rehabilitate one of the plaintiff’s witnesses, a former employee of Ford who testified that for safety’s sake the sunroof should have been made of laminated glass. On cross-examination Ford brought out the fact that this employee had been fired, which—the" }, { "docid": "14216910", "title": "", "text": "case to the Central District of Illinois, and her request was granted and the case transferred. Applying Florida’s rules on conflict of laws (and thus anticipating Ferens v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990), which holds that the transferee court must apply the conflict of laws rules of the transferor jurisdiction whether the defendant or the plaintiff requested the transfer), Judge Mihm ruled that the law of North Carolina — as it happens, the only state in the United States not to recognize strict liability in products cases, Smith v. Fiber Controls Corp., 300 N.C. 669, 678, 268 S.E.2d 504, 509-10 (1980); Warren v. Colombo, 93 N.C.App. 92, 102, 377 S.E.2d 249, 255 (1989)—governed the substantive issues in the case. 716 F.Supp. 377 (C.D.Ill.1989). A two-week jury trial, in which the plaintiff tried to prove that she had been ejected through the sunroof and that Ford had been negligent in making the sunroof out of tempered rather than laminated glass, ended in a verdict for Ford. Barron argues to begin with that the judge should have applied Illinois law, which imposes strict liability in products cases, rather than North Carolina law, which requires the plaintiff to prove negligence. It is not easy to see what difference this would have made to the outcome of the case; and before entangling itself in messy issues of conflict of laws a court ought to satisfy itself that there actually is a difference between the relevant laws of the different states. International Administrators, Inc. v. Life Ins. Co., 753 F.2d 1373, 1376 n. 4 (7th Cir.1985). There might seem to be all the difference in the world between negligence and strict liability, but in a products liability case this often is not true. The plaintiff must prove either that the product was defective or that it was unreasonably dangerous, and in determining whether a product is “defective” or “unreasonably” dangerous the court weighs costs and benefits just as it would do in a negligence case. See Flaminio v. Honda Motor Co., 733 F.2d 463, 467 (7th Cir.1984)," } ]

[ { "docid": "19163964", "title": "", "text": "we must adhere to the law of our circuit unless that law conflicts with a decision of the Supreme Court. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc). There is another reason why we should not decide whether Boumediene portends application of the Due Process Clause and the Cruel and Unusual Punishment Clause to Guantanamo detainees— and it is on this ground we will rest our decision on remand. The doctrine of qualified immunity shields government officials from civil liability to the extent their alleged misconduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Our initial opinion followed the requirement of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), that courts must first determine whether the alleged facts make out a violation of a constitutional right; if the plaintiff satisfies this first step, then the court must determine whether the asserted right was “clearly established” at the time of the violation. Id. at 201, 121 S.Ct. 2151. After our initial decision, the Supreme Court handed down Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Pearson ruled that the Saucier sequence is optional and that lower federal courts have the discretion to decide only the more narrow “clearly established” issue “in light of the circumstances in the particular case at hand.” Id. at 818. Considerations of judicial restraint favor exercising the Pearson option with regard to plaintiffs’ Bivens claims in Counts 5 and 6. The immunity question is one that we can “rather quickly and easily decide,” Pearson, 129 S.Ct. at 820 — and already have. See Rasul I, 512 F.3d at 665-67. We thus follow the “older, wiser judicial counsel ‘not to pass on questions of constitutionality ... unless such adjudication is unavoidable.’ ” Pearson, 129 S.Ct. at 821 (quoting Scott v. Harris, 550 U.S. 372, 388, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (Breyer, J., concurring) (quoting Spector Motor Service, Inc. v." } ]

[ { "docid": "20691372", "title": "", "text": "223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity considers the state of the law not with 20-20 hindsight, but at the time of the challenged conduct. See, e.g., Kalka v. Hawk, 215 F.3d 90, 94 (D.C.Cir.2000). And a right will be held to have been clearly established at the time of an alleged violation if it would have been “clear to a reasonable officer that his conduct was unlawful in the situation that he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If the right in question was not clearly established, we need not broach the question of whether a constitutional violation occurred because the officers are entitled to qualified immunity regardless. See Pearson, 555 U.S. at 236, 129 S.Ct. 808. In reviewing a grant of qualified immunity, we must consider the right asserted “not as a broad general proposition, but in a particularized sense so that the contours of the right are clear[.]” Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2094, 182 L.Ed.2d 985 (2012) (internal citations and quotation marks omitted). So the right we must consider in this case is “not the general right to be free from retaliation for one’s speech,” but rather “the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause.” Id. The Supreme Court has “never held that there is such a right.” Reichle, 132 S.Ct. at 2094. Nor was there in February 2012 (nor is there now) any settled consensus view in this court or other federal courts of appeals such that “the statutory or constitutional question” has been placed “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011); see also Bame v. Dillard, 637 F.3d 380, 384 (D.C.Cir.2011) (to determine clearly established law, “we look to cases from the Supreme Court and this court, as well as to cases from other courts exhibiting a consensus view — if there is" }, { "docid": "22502518", "title": "", "text": "in violation of Bonivert's constitutional rights. The district court granted summary judgment in favor of the defendants on the basis of qualified immunity. ANALYSIS I. FRAMEWORK FOR QUALIFIED IMMUNITY ANALYSIS Our de novo review of a grant of summary judgment based on qualified immunity involves two distinct steps: government officials are not entitled to qualified immunity if (1) the facts \"[t]aken in the light most favorable to the party asserting the injury ... show [that] the [defendants'] conduct violated a constitutional right\" and (2) \"the right was clearly established\" at the time of the alleged violation. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), rev'd on other grounds by Pearson v. Callahan , 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; see also Saucier , 533 U.S. at 202, 121 S.Ct. 2151 (\"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.\"). Both prongs entail questions of law that we may answer in either order. Pearson , 555 U.S. at 236, 129 S.Ct. 808. If a \"genuine issue of material fact exists that prevents a determination of qualified immunity at summary judgment, the case must proceed to trial.\" Serrano v. Francis , 345 F.3d 1071, 1077 (9th Cir. 2003). Since the Fourth Amendment guarantees the right to be free from \"unreasonable searches and seizures,\" U.S. Const. amend. IV, the first question-whether the officer violated a constitutional right-will typically turn on the \"reasonableness\" of the officer's actions. See Mattos , 661 F.3d at 442. But notably, the reasonableness standard governing violations of a Fourth Amendment right is distinct from the reasonableness standard governing whether the right was \"clearly established.\" Saucier , 533 U.S. at 204-05, 121 S.Ct. 2151. The former protects an officer who reasonably, but mistakenly, perceives facts that would have made his actions lawful had they been true. See id. at 206, 121 S.Ct. 2151 (\"Officers can have reasonable, but mistaken, beliefs as to the facts establishing" }, { "docid": "10614160", "title": "", "text": "Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014)). The doctrine “exists to protect officers ‘firom undue interference with their duties and from potentially disabling threats of liability.’ ” Lash, 786 F.3d at 5 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity ‘gives government officials breathing room to make reasonable but mistaken judgments’ and ‘protects all but the plainly incompetent or those who knowingly violate the law.’” Messerschmidt v. Millender, — U.S. —, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)). Consequently, whether qualified immunity applies “ ‘generally turns on the objective legal reasonableness of the [official’s] action, assessed in light of the legal rules that were clearly established at the time.’ ” Id. at 1245 (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The Supreme Court in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), mandated a two-step protocol for evaluating a government officials’ qualified immunity defense to a § 1983 claim. First, the court must determine whether the plaintiff has “alleged facts showing a violation of a constitutional right,” and, second, the court must decide “whether the constitutional right was clearly established at the time of the incident.” Fox v. District of Columbia, 794 F.3d 25, 29 (D.C.Cir.2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The test is flexible in that a court may address either of the two steps first. Pearson, 555 U.S. at 242, 129 S.Ct. 808; Fox, 794 F.3d at 29 (same). A right is “clearly established” if it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Taylor v. Barkes, — U.S. —, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (quoting Reichle v. Howards, — U.S. —, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)). “ ‘Ordinarily, in order for the law to be" }, { "docid": "1421632", "title": "", "text": "accepting as true the facts that the district court found were adequately supported, as well as the facts the district court likely assumed.” Brown, 574 F.3d at 496. Determining the question of qualified immunity involves the following two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right; and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that Saucier’s two-step sequence is not mandatory). “Under the rule established in Pearson, we have the discretion to decide ‘which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.’ ” Fields v. Abbott, 652 F.3d 886, 890 (8th Cir.2011) (quoting Pearson, 555 U.S. at 236, 129 S.Ct. 808). A. Excessive Force When confronted with a claim of excessive force alleging a violation of the Eighth Amendment, the core judicial inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). “The Supreme Court recently clarified that the extent of any resulting injury, while material to the question of damages and informative as to the likely degree of force applied, is not in and of itself a threshold requirement for proving this type of Eighth Amendment claim.” Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir.2010) (citing Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175, 1178-79, 175 L.Ed.2d 995 (2010) (per curiam)). Santiago’s amended complaint alleges that Blair, Williford, Fox, and Parsons used excessive force during the July 26, 2008, incident. In addressing Santiago’s Eighth Amendment excessive force claim, the district court applied the Fourth Amendment excessive force legal" }, { "docid": "20350405", "title": "", "text": "interests related to speech and petition, and because those associational interests are not implicated in this case, I find that Plaintiffs’ claim must be examined under the Fourteenth Amendment, rather than the First Amendment.”). McGarr’s claim seems to fit under the Fourteenth Amendment, as McGarr has not alleged any retaliatory action based on Deskovic’s First Amendment activities. Stephens argues that he is entitled to qualified immunity as to McGarr’s claim, as it was objectively reasonable in 1990 for Stephens to believe that his actions did not violate McGarr’s right to familial association. (Addendum of Defs. in Further Supp. of Mot. for Summ. J. 4 (Dkt. No. 285 (07-CV-9488 docket)).) The Court begins, not with an analysis of whether a constitutional right was violated, but by examining whether a reasonable law enforcement officer in Stephens’ position would have believed his or her conduct would violate McGarr’s right to familial association. See Pearson, 555 U.S. at 236, 129 S.Ct. 808 (overruling Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), and explaining that judges are no longer required to begin by deciding whether a constitutional right was violated but are instead “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first”). The Supreme Court instructs that [t]o be clearly established, a right must be sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate.... [T]he right allegedly violated must be estab lished, not as a broad general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official. Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093-94, 182 L.Ed.2d 985 (2012) (second alteration in original) (citations and internal quotation marks omitted). Otherwise stated, to determine whether a right is clearly established, courts must determine “whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of" }, { "docid": "7549230", "title": "", "text": "have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Supreme Court has laid out a two-step inquiry to determine if qualified immunity protects an official’s actions: (1) whether, “[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer’s conduct violated a constitutional right[],” and (2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson, 555 U.S. at 236, 129 S.Ct. 808. Courts may “exercise then-sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236,129 S.Ct. 808. 1. Fourth Amendment Right The right at issue is the Fourth Amendment right to be free of “unreasonable searches and seizures.” U.S. Const. Amend. IV. “[A] search conducted without a warrant issued upon probable cause is ‘per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (omission in original) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One of these specifically established exceptions is a search pursuant to consent, which must be voluntarily given. Id. “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Id. at 227, 93 S.Ct. 2041. This includes considering the characteristics of the individual giving consent, such as “age, intelligence, and education”; whether the questioner engaged in “coercive or punishing conduct”; and the presence of “more subtle forms of coercion that might flaw an individual’s judgment.” United States v. Beauchamp, 659 F.3d 560, 572 (6th Cir.2011) (alteration, citations, and internal quotation marks" }, { "docid": "5772127", "title": "", "text": "is not protected by the doctrine. See Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir.2006). To determine if an officer is entitled to qualified immunity, the Supreme Court has established a two-prong test. First, the reviewing court “must decide whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). Second, the court “must decide if the right at issue was clearly established at the time of the defendant’s alleged misconduct.” Id. (internal quotation marks omitted). For a right to be clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In other words, preexisting law must “dictate, that is truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances.” Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir.2002) (emphasis in original) (citation and internal quotation marks omitted); see also Akers v. McGinnis, 352 F.3d 1030, 1042 (6th Cir.2003) (noting that the right must be “so clearly established when the acts were committed that any officer in the defendant’s position, measured objectively, would have clearly understood that he was under an affirmative duty to have refrained from such conduct”). “If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. Pursu ant to Pearson, “the courts of appeals [are] permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808. As the Supreme Court" }, { "docid": "17922524", "title": "", "text": "a right must be sufficiently clear “that every reasonable official would [have understood] that what he is doing violates that right.” Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citation and internal quotation marks omitted). “[T]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151; see also Walker v. Gomez, 370 F.3d 969, 978 (9th Cir.2004). This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. at 201, 121 S.Ct. 2151. “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Because the answer to the second question may be dispositive, a court may address it first. See Pearson, 555 U.S. at 242, 129 S.Ct. 808. The Court has already determined, as discussed above, that for the purposes of summary judgment Plaintiffs have established the violation of a constitutional right. Thus, the Court turns to the second prong, whether the right was clearly established. See id. Prior to May 7, 2013, the date of the subject incident, clearly established case law existed that gave Defendants fair notice that using the force described above against a nonviolent misdemeanor suspect would be unconstitutional. See Graveletr-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir.2013) (“The right to be free from the application of non-trivial force for engaging in mere passive resistance was clearly established pri- or to 2008.”) (original emphasis) (citing Nelson, 685 F.3d at 881 (same)). Moreover, because when viewing the facts as alleged in the light most favorable to the injured party the alleged force may constitute deadly force, Plaintiffs meet their burden to demonstrate that prior to" }, { "docid": "10617220", "title": "", "text": "they are entitled to qualified immunity with respect to McDonald’s Fourth Amendment claim. “The doctrine of qualified immunity protects government officials ‘from [personal] liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). To determine if an official is protected by qualified immunity and therefore entitled to dismissal of the claims against him, a court must ask “whether the plaintiff has alleged the deprivation of an actual constitutional right,” and “whether that right was clearly established at the time of the alleged violations.” Int’l Action Ctr. v. United States, 365 F.3d 20, 24 (D.C.Cir.2004) (quotations and citations omitted). Courts may “exercise their sound discretion in deciding which of the two prongs ... should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. The second inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.... ‘The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). A court must determine whether “it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151. Officials are presumed to have knowledge of all developments in constitutional law at the time the alleged violation occurred. Harris v. District of Columbia, 932 F.2d 10, 13 (D.C.Cir.1991). Ignorance of the law is not a defense, since a “ ‘reasonably competent public official should know the law governing his conduct.’ ” Barham v. Ramsey, 338 F.Supp.2d 48, 55 (D.D.C.2004) (quoting Harlow, 457 U.S. at 818-19, 102" }, { "docid": "20907921", "title": "", "text": "“hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151. When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009). 1. Procedural Approach to Qualifíed Immunity. The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz — by which a court first decides if the defendant’s actions violated the Constitution, and then the court determines if the right violated was clearly established — will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting the prior mandatory approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that the prior mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (affirming Pearson v. Callahan’s procedure and noting that deciding qualified immunity issues on the basis of a right" }, { "docid": "9807532", "title": "", "text": "accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine protects government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). An official asserting the defense of qualified immunity bears the burden of proof with respect to that defense. Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir.2013) (citation omitted). In reviewing a district court’s decision rejecting a defendant’s assertion of qualified immunity, we apply the analysis set forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), as modified by the Court’s later decision in Pearson. See Meyers, 713 F.3d at 731. The Court’s holding in Saucier requires a two-step approach, under which a court first must decide whether the undisputed facts show that the government official’s actions violated the plaintiffs constitutional rights. Id. (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). When the plaintiff has satisfied this initial step, a court must determine whether the right at issue was “clearly established” at the time of the events in question. Id. (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151); see Pearson, 555 U.S. at 236, 129 S.Ct. 808 (modifying the Saucier approach such that courts are no longer required to conduct the analysis in the sequence set forth in Saucier). In this case, we focus our analysis on the first prong of the Saucier test, namely, whether Danser has established for purposes of summary judgment that the defendants violated one of his constitutional rights. The constitutional right at issue is Danser’s Eighth Amendment right to be protected from violence committed by other prisoners. See Farmer, 511 U.S. at 833-35, 114 S.Ct. 1970. This constitutional right derives from the Supreme Court’s holdings that the treatment an inmate" }, { "docid": "7850058", "title": "", "text": "Cir. 2005) (quoting Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994)). In determining the applicability of qualified immunity, courts examine two prongs. First, whether the facts alleged (in the context of a motion to dismiss or for judgment on the pleadings) or shown (in the context of a motion for summary judgment or a trial) “make out a violation of a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Second, “whether the right at issue was ‘clearly established’ at the time of defendants’ alleged misconduct.” Id (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). A right is “clearly established” when its “contours ... [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quotation marks omitted). Courts need not evaluate the two prongs sequentially, Pearson, 555 U.S. at 236, 129 S.Ct. 808, and the failure of either prong will result in application of qualified immunity, James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). A. Earns and Parker first argue that the officers were not entitled to qualified immunity on their selective enforcement claim under the First and Fourteenth Amendments. Upon reviewing the record and considering the evidence in the light most favorable to the plaintiffs, we agree with the District Court that Earns and Parker failed to establish a selective enforcement claim adequate to survive a motion for summary judgment. Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”). A plaintiff seeking to establish a selective enforcement claim must demonstrate (1) that he was treated differently from other similarly situated individuals; and (2) that this selective treatment was based on an unjustifiable standard, such as race, religion, some other arbitrary factor or to prevent the exercise of a fundamental right. Dique v. N.J." }, { "docid": "7549229", "title": "", "text": "grant of summary judgment de novo. Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir.2010). Summary judgment is appropriate when the materials in the record “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the non-moving party.” Sailing v. Budget Rent-A-Car Sys., Inc., 672 F.3d 442, 444 (6th Cir.2012) (internal quotation marks omitted). B. Warrantless Search Claims of Stol, Ray, and Werksma The Stols, Ray, and Werksma claim that their consent allowing Bartók and White into their homes to inspect their water meters was involuntary, resulting in an illegal search prohibited by the Fourth Amendment. Defendants claim them actions are protected by qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Supreme Court has laid out a two-step inquiry to determine if qualified immunity protects an official’s actions: (1) whether, “[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer’s conduct violated a constitutional right[],” and (2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson, 555 U.S. at 236, 129 S.Ct. 808. Courts may “exercise then-sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236,129 S.Ct. 808. 1. Fourth Amendment Right The right at issue is the Fourth Amendment right to be free of “unreasonable searches and seizures.” U.S. Const. Amend. IV." }, { "docid": "7865959", "title": "", "text": "construction such that they would recognize this statute’s potential constitutional invalidity. Thus, it was objectively reasonable for the officers to believe the ordinance valid when they removed and later arrested Acosta for violating § 2-61. B “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). Assessing whether an official is entitled to immunity is a two prong inquiry. Under the first prong we ask whether, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under the second prong we examine whether the right was clearly established. Id. To be “clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal quotation marks omitted). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). We may examine either prong first, considering the circumstances presented on appeal. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Acosta presents two arguments that the officers are not entitled to qualified immunity for seizing or arresting him: (1) he was arrested in retaliation for questioning the officers about why his time to speak was cut short and why he was asked to leave the council meeting; and (2) the officers lacked the requisite level of suspicion to seize or arrest him. Resolution of both contentions turns on whether probable cause existed to seize Acosta. Assuming Acosta’s contention accurately reflects why he was arrested, Acosta’s claim still fails under prong two of Saucier. In Reichle, the Supreme Court held that" }, { "docid": "7340539", "title": "", "text": "Cir.1997) (quoting Wilson v. Formigoni, 42 F.3d 1060, 1064 (7th Cir.1994)) (internal quotation marks omitted). Qualified immunity can be grounds for a Rule 12(b)(6) dismissal when the allegations of the complaint, taken as true, fail to allege the violation of a clearly established right. Landstrom v. Ill. Dep’t of Children & Family Servs., 892 F.2d 670, 675 (7th Cir.1990). The Supreme Court has set out a two-pronged inquiry to guide courts in resolving this issue: (1) determining whether the facts alleged make out a constitutional violation; and (2) determining whether the constitutional standards were clearly established at the time of the alleged misconduct. Pearson, 555 U.S. at 232-42, 129 S.Ct. 808 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In Pearson, the Supreme Court held that district courts have the discretion to address these questions in whatever order they deem appropriate. 555 U.S. at 236, 129 S.Ct. 808. Courts often address the second prong first in order to avoid having to pass on the constitutionality of an officer’s particular actions — for if a right is not clearly established, a reasonable officer cannot be said to have known about it. See Forman v. Richmond Police Dep’t, 104 F.3d 950, 958 (7th Cir.1997). Addressing the second prong first allows courts to dismiss cases on qualified immunity grounds pursuant to Rule 12(b)(6). See Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir.2011) (Post-Pearson, “[i]f it is plain that a constitutional right is not clearly established, a court may grant the requested immunity without undertaking the essentially academic exercise of ascertaining whether the specific facts depict a constitutional violation.”) (quoting Pearson, 555 U.S. at 236-37, 129 S.Ct. 808) (internal quotation marks omitted). The plaintiff has the burden of proving that the right allegedly violated was clearly established. Id. at 957-58. To meet this burden, the plaintiff need not point to a case finding the same exact action to be unlawful or a case that is “on all fours” with the present set of facts and circumstances. Id. at 958. A “clearly analogous” case decided" }, { "docid": "17922523", "title": "", "text": "affirmative defense, the defendant bears the burden of establishing entitlement to it. Gomez, 446 U.S. at 640, 100 S.Ct. 1920. The burden shifts to Plaintiffs to prove “that the right allegedly violated was clearly established at the time of the official’s allegedly impermissible conduct.” Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir.1993). To determine whether officers are entitled to qualified immunity is a two-step inquiry. “The threshold inquiry in a qualified immunity analysis is whether the plaintiffs allegations, if true, establish a constitutional violation.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir.2003) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If the alleged conduct would not be considered violative, the inquiry stops and the defense of qualified immunity applies. See id. “Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ’clearly established’ at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 231, 129 S.Ct. 808. To be a clearly established constitutional right, a right must be sufficiently clear “that every reasonable official would [have understood] that what he is doing violates that right.” Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citation and internal quotation marks omitted). “[T]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151; see also Walker v. Gomez, 370 F.3d 969, 978 (9th Cir.2004). This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. at 201, 121 S.Ct. 2151. “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Because" }, { "docid": "7850057", "title": "", "text": "Crowe and Shanahan in their individual capacities. Earns and Parker specifically alleged that the officers violated: (1) the First and Fourteenth Amendments by selectively enforcing N.J. Admin. Code § 16:83-1.4; (2) the First Amendment by arresting them in retaliation for their protected speech; (3) the Fourth Amendment by arresting them without probable cause; and (4) the First Amendment by curtailing their right to record police officers during an investigative detention. The District Court concluded that Crowe and Shanahan were entitled to qualified immunity as to each of these claims. For the following reasons, we agree. A plaintiff seeking relief under 42 U.S.C. § 1983 must demonstrate “that the defendants, acting under color of law, violated the plaintiffs federal constitutional or statutory rights, and thereby caused the complained of injury.” Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005). The doctrine of qualified immunity, however, insulates government officials from lawsuits, shielding them “from undue interference with their duties and from potentially disabling threats of liability.” Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005) (quoting Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994)). In determining the applicability of qualified immunity, courts examine two prongs. First, whether the facts alleged (in the context of a motion to dismiss or for judgment on the pleadings) or shown (in the context of a motion for summary judgment or a trial) “make out a violation of a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Second, “whether the right at issue was ‘clearly established’ at the time of defendants’ alleged misconduct.” Id (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). A right is “clearly established” when its “contours ... [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quotation marks omitted). Courts need not evaluate the two prongs sequentially, Pearson, 555 U.S. at 236, 129 S.Ct. 808, and" }, { "docid": "11168452", "title": "", "text": "We exercise de novo review of a district court’s denial of a motion to dismiss on qualified immunity grounds as it involves a pure question of law. McLaughlin v. Watson, 271 F.3d 566, 570 (3d Cir.2001) (citing Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir.1994)). Ill The doctrine of qualified immunity insulates government, officials who are performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Supreme Court has established a two-part analysis that governs whether an official is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We ask: (1) whether the facts alleged by the plaintiff show the violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of the alleged misconduct. Id.; Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.2010). Courts may address the two Saucier prongs in any order, at their discretion. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). If the plaintiff fails to satisfy either prong, the defendant is entitled to judgment as a matter of law. See id. at 232, 129 S.Ct. 808. A The first question of the Saucier analysis is whether a constitutional violation occurred. This “is not a question of immunity, but whether there is any wrong to address.” Ray v. Twp. of Warren, 626 F.3d 170, 174 (3d Cir.2010) (citing Curley v. Klem, 499 F.3d 199, 207 (3d Cir.2007)). Here, the Complaint alleges that Officer Marshall falsely arrested and imprisoned Mrs. James when he insisted that she accompany her daughter to the hospital in an ambulance. B To state a claim for false arrest under the Fourth Amendment, a plaintiff must establish: (1) that there was an arrest; and (2) that the arrest was made without probable cause. See Groman v. Twp. of Manalapan, 47 F.3d 628, 634" }, { "docid": "2383212", "title": "", "text": "would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted); accord Messerschmidt v. Millender, — U.S. -, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officers from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). It gives public officials “breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)); see also Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (“The general rule of qualified immunity is intended to provide government officials with the ability ‘reasonably to anticipate when their conduct may give rise to liability for damages.’ ” (brackets and citation omitted)). To overcome the defendant’s invocation of qualified immunity, the plaintiffs must show both (1) that the facts make out a constitutional violation, and (2) that the constitutional right was “clearly established” at the time of the official’s alleged misconduct. E.g., al-Kidd, 131 S.Ct. at 2080; Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir.2008). Though once required to determine whether a violation occurred before determining whether the right was clearly established, see Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), courts now have discretion to grant immunity on the basis that the right was not clearly established without determining whether there was a violation in the first place, see Pearson, 555 U.S. at 227, 129 S.Ct. 808, abrogating Saucier, 533 U.S. at 200-01, 121 S.Ct. 2151. A We begin with the Abbotts’ false-arrest and false-imprisonment claims. The existence of probable cause to arrest is an absolute defense to any §" }, { "docid": "8498933", "title": "", "text": "v. Setter, 858 F.2d 1171, 1173 (6th Cir.1988) (“The law of qualified immunity was dramatically changed by the Court in Harlow v. Fitzgerald.”). Pursuant to Harlow, “government officials performing discretionary functions generally are' shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818, 102 S.Ct. 2727. This standard presupposes two things: first, that the facts alleged by the plaintiff are sufficient to state a constitutional claim; and second, that the constitutional right which the officer has purportedly violated was clearly established at the time of the harm giving rise to the action. Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), abrogated by Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that although the two-step inquiry-set out in Saucier “is often beneficial,” courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first”). Having already found that the Deputy Chiefs effectuated an unconstitutional heckler’s veto, we need only decide whether their actions violated law that was clearly established at the time of the 2012 Festival. Whether a point of law is clearly established necessarily turns on its breadth — i.e., the level of specificity at which it is defined. See Reichle v. Howards, - U.S. -, 132 S.Ct. 2088, 2094, 182 L.Ed.2d 985 (2012) (“[T]he right allegedly violated must be established not as a broad general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official.” (citations and internal quotation marks omitted)). Although “existing precedent must have placed the ... constitutional question beyond debate,” “[a] case directly on point,” is not a prerequisite to finding that a law is clearly established. Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). Deputy Chief Defendants Richardson and Jaafar contend that, “no ‘clearly established’ law existed on the subject of correct law enforcement .response to" } ]

[ { "docid": "7375451", "title": "", "text": "for rust damage in the bill of lading, a statutory exemption from liability for damage arising from an inherent vice of the goods and from insufficiency of packing, failure to give notice of claim as required by law, absence of exceptions on the tally sheets upon discharge of the cargo, lack of knowledge by respondents as to the actual condition of the inside bars of steel in each bundle which were not visible at the time of loading, and delivery of the steel in a condition not substantially different from its condition upon loading. All of these defenses were raised at the trial. Libelant, a manufacturer of steel window frames, began importing steel late in 1948 when shipments arrived on three vessels, including the S.S. Alwaki. This shipment was next and was followed by another on the S.S. Prins Frederik Hendrik which arrived about two weeks later. All steel shipments to that date resulted in rust damage claims and led to some litigation. See Copco Steel and Engineering Co. v. The Prins Frederik Hendrik, D.C., 129 F.Supp. 469, and Copco Steel & Engineering Co. v. S/S Alwaki, D.C., 131 F.Supp. 332. As to the rust damage these cases are identical on facts except that the tulip bulb and steel cargo combination was not involved in the Alwaki case and in the Hendrik case the crates of tulip bulbs and the steel in one of the holds were found to be dripping of moisture while in this case both the bulbs and the steel were dry upon unloading. When this ease was at issue proctors requested that the court await the disposition of the above cases, which would determine some of the issues present here before scheduling a pretrial. The case was pretried in May and tried in August, 1956, some six years after filing of suit and almost seven years after discharge of the cargo. The hot-rolled steel shapes in this case, which were approximately 20 feet long, were nested in tiers and several nested tiers were tightly banded with metal straps to form a compact bundle or lift, but" } ]

[ { "docid": "22117343", "title": "", "text": "In addition, sixty-four of the Interstate coils were found to be excessively rusted and pitted. The coils were discharged by Pittston Stevedoring Corp., which used bare wire slings without spreader bars or other protective devices. As many as three coils were included in one lift, causing the edges of the coils to cut into one another. In addition, some coils were dropped on other coils, and some were dropped onto the cement pier. Complaints were made about the way the coils were being discharged, but Pittston took no corrective action. Demsey and Interstate sued in admiralty in the United States District Court for the Southern District of New York to recover damages against Sea Star (in rem), World Bulk, Atlantic and Pittston. Jordan was impleaded by Atlantic and World Bulk, and Jordan, in turn, filed cross-claims against World Bulk, Atlantic and Pittston. Atlantic and World Bulk, moreover, asserted cross-claims against each other and against Pittston. In an interlocutory order, reported at 321 F.Supp. 663 (S.D.NY.1970), Judge Bonsai held: 1. Plaintiffs are entitled to recover from World Bulk and Sea Star (in i rem) for all the damage to the coils, with the exception of normal atmospheric rust. 2. Interstate is entitled to recover from Pittston for the damage to the coils suffered during discharge in Chicago. 3. World Bulk is entitled to indemnity from Atlantic for any damages it must pay Demsey as a result of the harm suffered by the coils stowed in the ’tween deck. 4. Atlantic is entitled to indemnity from World Bulk for any damages it must pay either plaintiff as a result of the harm suffered by the coils stowed in the lower hold. 5. Atlantic and World Bulk are entitled to indemnity from Pittston to the extent Interstate recovers from either of them for harm done to the coils during discharge in Chicago. 6. Jordan has waived its right to have its dispute with World Bulk resolved by arbitration. 7. World Bulk is not entitled to indemnity from Jordan for damages it must pay either plaintiff as a result of improper loading and stowing" }, { "docid": "22117366", "title": "", "text": "District Court and by this Court in attempting to unravel the maze of conflicting contentions in this complicated case and the relatively small amount of money involved, we think it proper to repeat Judge Bonsai’s excellent suggestion that the amounts due to Demsey and Interstate and the amounts to be paid by Jordan for the overall damage and for excessive rust and pitting of the sixty-four coils and by Pittston for the damage caused by the unloading at Chicago, be stipulated. Affirmed in part and reversed in part. The case is remanded to the District Court for further proceedings not inconsistent with this opinion. . Pittston also asserts that it was error not to admit its Exhibit F into evidence. This exhibit was an undated letter, addressed “to whom it may concern,” describing the condition of the coils prior to discharge in Chicago. Pittston failed to demonstrate that the letter was a business record made in the regular course of business. See Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Furthermore, the deposition of the author of the letter was received in evidence at the trial and was given due consideration. We find no error in .this ruling. . World Bulk contends that because the bills of lading were signed in connection with the voyage charter, at Jordan's request, Jordan was the COGSA carrier. We disagree. The bills of lading were issued in return for the letter of indemnity hy Jordan already referred to. We are of the view that Jordan induced World Bulk prematurely to issue the bills by offering indemnity in return. Tender COGSA, Sections 1301(a) and (b), a charterer who issues bills of lading is the carrier. . World Bulk, of course, also had the duty to load and stow under the time charter. This duty runs in favor of Atlantic and in no way affects World Bulk’s rights and duties under either the voyage charter or under COGSA. . The ruling below was apparently based on the assumption that the Sea Star was intended to be a beneficiary of Jordan’s letter" }, { "docid": "22117349", "title": "", "text": "plaintiffs’ prima facie case. We hold that there was ample evidence to support this finding, and we affirm it. The hatch boards on the ’tween deck were old and dry, and therefore incapable of supporting the weight of the coils. Consequently, the Sea Star was to this extent unseaworthy with respect to carrying coils in the ’tween deck. Furthermore, as stated above, the coils were not properly and carefully stowed in the ’tween deck due to inadequate chocking and shoring and the stowage in the hold was in various respects improper. Finally, the discharge at Chicago was conducted in an improper manner. Accordingly, we agree with Judge Bonsai that, with the exception of the rust, defendants have not rebutted plaintiffs’ prima facie case by demonstrating that the damage to the coils was not due to defendants’ negligence. We therefore affirm the holding that Demsey and Interstate are entitled to recover from World Bulk and Sea Star (in rem) for all damage to the coils, with the exception of the rust. Interstate, however, also claims that it is entitled to recover for rust damage. We affirm the District Court’s finding that the normal atmospheric rust found on all the Interstate coils was due to inherent vice, and that consequently, Interstate may not recover for this damage. Pan American Trade Development Corp. v. M/V Helga Howaldt, 257 F.Supp. 721 (S.D.Fla.1966). Sixty-four of the Interstate coils, however, were excessively rusted and pitted. Judge Bonsai held, and we agree, that this excessive rust was not due to inherent vice. Copco Steel & Engineering Co. v. The Prins Willem Van Oranje, 159 F.Supp. 79 (E.D.Mich.1957); Copco Steel & Engineering Co. v. S/S Alwaki, 131 F.Supp. 332 (S.D.N.Y.1955); Copco Steel & Engineering Co. v. The Prins Frederik Hendrik, 129 F.Supp. 469 (E.D.Mich.1955). Whereas the sixty-four coils may have been excessively rusted and pitted at the time of loading, defendants are estopped from asserting this because Interstate had no knowledge of this condition, and clean bills of lading were issued. The Carso, 43 F.2d 736, 744 (S.D.N.Y.1930), aff’d in part and rev’d in part, 53 F.2d 374" }, { "docid": "22117344", "title": "", "text": "World Bulk and Sea Star (in i rem) for all the damage to the coils, with the exception of normal atmospheric rust. 2. Interstate is entitled to recover from Pittston for the damage to the coils suffered during discharge in Chicago. 3. World Bulk is entitled to indemnity from Atlantic for any damages it must pay Demsey as a result of the harm suffered by the coils stowed in the ’tween deck. 4. Atlantic is entitled to indemnity from World Bulk for any damages it must pay either plaintiff as a result of the harm suffered by the coils stowed in the lower hold. 5. Atlantic and World Bulk are entitled to indemnity from Pittston to the extent Interstate recovers from either of them for harm done to the coils during discharge in Chicago. 6. Jordan has waived its right to have its dispute with World Bulk resolved by arbitration. 7. World Bulk is not entitled to indemnity from Jordan for damages it must pay either plaintiff as a result of improper loading and stowing in Tampico, and improper discharge in Chicago. World Bulk is entitled to indemnity from Jordan for any damages it must pay Interstate for the sixty-four coils which were excessively rusted and pitted. 8. Atlantic is not entitled to indemnity from Jordan to the extent plaintiffs recover in rem from Sea Star for damage caused by improper loading, stowing and discharge. Atlantic is entitled to indemnity from Jordan to the extent Interstate recovers in rem from Sea Star for excessive rusting and pitting to the sixty-four coils. We shall discuss these findings seriatim. 1. Upon the issuance of bills of lading at Tampico, the loading, stowing, transport and discharge of the coils became subject to the Carriage of Goods by Sea Act of 1936 (COGSA), 46 U.S.C. Section 1300 et seq. (1970). COGSA Section 1305. COGSA, Section 1301(a) defines “carrier” as “the owner or the charterer who enters into a contract of carriage with a shipper.” According to Section 1301(b), a bill of lading is a contract of carriage. Because World Bulk’s agent, Representaciones, signed the" }, { "docid": "22117351", "title": "", "text": "(2d Cir. 1931); Copco Steel & Engineering Co. v. S/S Alwaki, supra, 131 F.Supp. 332, 334 (S.D.N.Y.1955); Levatino Company v. S. S. Norefjell, 231 F.Supp. 307, 318 (S.D.N.Y.1964). Accordingly, we affirm Judge Bonsai’s holding that Interstate is entitled to recover from World Bulk and Sea Star (in rem) for the excessive rusting and pitting of the sixty-four coils. 2. Stevedores are liable for damage caused by their negligence. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959); Luigi Serra, Inc. v. S. S. Francesco C., 1965 A.M.C. 2029 (S.D.N.Y.1965), aff’d, 379 F.2d 540 (2d Cir. 1967). The evidence is sufficient to establish negligent discharge by Pittston. Bare wire slings were used without protective devices. Testimony by witnesses to the discharge disclosed that coils were dumped onto the cement pier, and onto one another, and that there were as many as three coils in a sling at one time. Complaints were made about the manner of discharge, but to no avail. Pittston contends, however, that any additional damage was unavoidable because of the damaged condition of the coils prior to discharge. Judge Bonsai held that Pittston should have notified Interstate of this fact before attempting to discharge the coils, citing United States v. The Bull Steamship Line, 274 F.2d 877 (2d Cir. 1960); O’Brien Bros, v. United States, 171 F.2d 586 (2d Cir. 1948); The Robert R., 255 F. 37 (2d Cir. 1918). Pittston maintains that this doctrine only applies in cases where the defect can be cleared up prior to discharge. See Judith Ann Liberian Transport Corp. v. Crawford, 399 F.2d 924 (9th Cir. 1968). We believe that it is unnecessary for us to pass on this point because Pittston has not shown how the pre-existing damage forced it to use bare wire slings, lift three coils in one sling, and drop the coils onto the cement pier and onto one another. Consequently, we affirm the holding below that Pittston is liable to Interstate for the additional damage to the coils caused by improper discharge. 3 and 4. Under the terms of" }, { "docid": "3474512", "title": "", "text": "the estoppel theory as an alternative to. the position taken by the libellant throughout most of the trial. This estop-pel theory is predicated upon the factual premise that the apples were overripe and bruised at the time of loading and that the carrier, having issued clean bills of lading, is estopped from now asserting that the cargo was other than as represented by the carrier in its bills of lading. The libellant’s factual position during most of the trial was that the apples were in good order and condition at the time of loading. To cover the alternative theories, libellant has submitted alternative sets of proposed findings. Compare Libellant’s Proposed Findings of Fact After Trial [September 23, 1963] Nos. 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 with Nos. 46, 47, 48, 49, 50, 51, 52. This action is governed by the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq. Under COGSA, the establishment of a prima facie ease requires proof by the libellant, first, that its goods were loaded in good condition and, second, that its goods were out-turned in a poor or damaged condition. See M. W. Zack Metal Company v. S.S. Birmingham City, 311 F.2d 334, 337 (2d Cir. 1962) cert. denied, 375 U.S. 816, 84 S.Ct. 50, 11 L.Ed.2d 51 (1963); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449, 450 (2d Cir. 1951), cert. denied, American Tobacco Co. v. Hadji-pateras, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952); Copco Steel & Engineering Company v. S/S Alwaki, 131 F.Supp. 332, 333 (S.D.N.Y.1955); Gilmore & Black, The Law of Admiralty, § 3-43, p. 162 (1957). As part of its proof to establish the first element, libellant offered in evidence the eight bills of lading issued by the carrier, acknowledging receipt of the cargo of boxes of apples in apparent good order and condition. A clean bill of lading is initial proof “of freedom from open and visible damage prior to transportation.” Copco Steel & Engineering Company v. S/S Alwaki, supra; see Stirnimann v. The" }, { "docid": "3474513", "title": "", "text": "that its goods were loaded in good condition and, second, that its goods were out-turned in a poor or damaged condition. See M. W. Zack Metal Company v. S.S. Birmingham City, 311 F.2d 334, 337 (2d Cir. 1962) cert. denied, 375 U.S. 816, 84 S.Ct. 50, 11 L.Ed.2d 51 (1963); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449, 450 (2d Cir. 1951), cert. denied, American Tobacco Co. v. Hadji-pateras, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952); Copco Steel & Engineering Company v. S/S Alwaki, 131 F.Supp. 332, 333 (S.D.N.Y.1955); Gilmore & Black, The Law of Admiralty, § 3-43, p. 162 (1957). As part of its proof to establish the first element, libellant offered in evidence the eight bills of lading issued by the carrier, acknowledging receipt of the cargo of boxes of apples in apparent good order and condition. A clean bill of lading is initial proof “of freedom from open and visible damage prior to transportation.” Copco Steel & Engineering Company v. S/S Alwaki, supra; see Stirnimann v. The San Diego, 148 F.2d 141, 142 (2d Cir. 1945); The Bencleuch, 10 F.2d 49, 52 (2d Cir. 1925) cert. denied 271 U.S. 680, 46 S.Ct. 631, 70 L.Ed. 1148 (1926). As Judge Hand said in The Bencleuch, the admission represented by a recital of “apparent good order and condition” in a bill of lading goes no further than “to create prima facie proof that to the eye the boxes were secure and sufficient, and that the lemons, so far as visible, were not damaged.” While the contents of the vast majority of the containers were actually not discernible to the carrier prior to loading in the sense of the carrier’s being able to make a visual determination of the boxed apples, the carrier did employ a fruit expert (Ollivier) who test-sampled and inspected the shipment on the Buenos Aires pier. This inspection by the carrier was conducted independently of the official inspection by the Argentine Government inspectors. T.R. pp. 167— 169, 248, 250, 254, 257. In addition, continuously throughout the loading period, the carrier’s representatives" }, { "docid": "22117364", "title": "", "text": "1936). But, in a proceeding of this character, we see no point in an elaborate and wholly unnecessary circuity of action. As Atlantic is entitled to indemnity from World Bulk for the damage caused by improper loading and stowing and as World Bulk is entitled to indemnity for the same damage from Jordan, the result is that Jordan must pay the principal amount of loss for cargo damage involved in this case. By parity of reasoning if Atlantic is liable for the damage caused by Pittston’s negligence in the unloading at Chicago and is entitled to indemnity from Pittston or from Jordan, Pittston’s employer, this loss must be paid by Pittston. We affirm the ruling below that Atlantic is entitled to be indemnified by Jordan to the extent Interstate recovers, in rem, from Sea Star for the excessive rust damage to the sixty-four coils. Thus we have disposed of the legal questions affecting liability as between the parties to this litigation. There remains a congeries of factual issues which Judge Bonsai made no attempt to resolve as this would normally be the task of a Commissioner or Master who has not yet been named. For example: (1) Most of the damage to the steel coils was caused by the failure to shore and chock coils in the ’tween deck and the failure properly to stow the coils in the hold. Because of this negligence many coils rolled around the ’tween deck and others in the hold hit against one another. There must be a factual determination in terms of dollars of the total amount of the damage caused by failure to properly load and properly stow the cargo. (2) The damage caused by Pittston in the unloading at Chicago must be fixed in terms of dollars vis-a-vis the total damage, most of which was caused during the voyage from Tampico. (3) There must be a determination in terms of dollars of the damage to the sixty-four Interstate coils found to be excessively rusted and pitted. In view of the unusual expenditure of time and effort by counsel and by the" }, { "docid": "22117350", "title": "", "text": "it is entitled to recover for rust damage. We affirm the District Court’s finding that the normal atmospheric rust found on all the Interstate coils was due to inherent vice, and that consequently, Interstate may not recover for this damage. Pan American Trade Development Corp. v. M/V Helga Howaldt, 257 F.Supp. 721 (S.D.Fla.1966). Sixty-four of the Interstate coils, however, were excessively rusted and pitted. Judge Bonsai held, and we agree, that this excessive rust was not due to inherent vice. Copco Steel & Engineering Co. v. The Prins Willem Van Oranje, 159 F.Supp. 79 (E.D.Mich.1957); Copco Steel & Engineering Co. v. S/S Alwaki, 131 F.Supp. 332 (S.D.N.Y.1955); Copco Steel & Engineering Co. v. The Prins Frederik Hendrik, 129 F.Supp. 469 (E.D.Mich.1955). Whereas the sixty-four coils may have been excessively rusted and pitted at the time of loading, defendants are estopped from asserting this because Interstate had no knowledge of this condition, and clean bills of lading were issued. The Carso, 43 F.2d 736, 744 (S.D.N.Y.1930), aff’d in part and rev’d in part, 53 F.2d 374 (2d Cir. 1931); Copco Steel & Engineering Co. v. S/S Alwaki, supra, 131 F.Supp. 332, 334 (S.D.N.Y.1955); Levatino Company v. S. S. Norefjell, 231 F.Supp. 307, 318 (S.D.N.Y.1964). Accordingly, we affirm Judge Bonsai’s holding that Interstate is entitled to recover from World Bulk and Sea Star (in rem) for the excessive rusting and pitting of the sixty-four coils. 2. Stevedores are liable for damage caused by their negligence. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959); Luigi Serra, Inc. v. S. S. Francesco C., 1965 A.M.C. 2029 (S.D.N.Y.1965), aff’d, 379 F.2d 540 (2d Cir. 1967). The evidence is sufficient to establish negligent discharge by Pittston. Bare wire slings were used without protective devices. Testimony by witnesses to the discharge disclosed that coils were dumped onto the cement pier, and onto one another, and that there were as many as three coils in a sling at one time. Complaints were made about the manner of discharge, but to no avail. Pittston contends, however, that any additional damage" }, { "docid": "22117339", "title": "", "text": "appeared that the letter of credit arranged by Interstate in favor of Eastern would expire, Jordan asked World Bulk to issue clean-on-board bills of lading in return for indemnity against any consequences arising from the issuance of such bills. Accordingly, on August 16, 1963, Representaciones, World Bulk’s agent, issued three bills of lading (two with respect to the coils ordered by Interstate and one with respect to the coils ordered by Demsey). Each bill of lading was signed by Representa-ciones, “for the Master,” and stated that the coils were shipped at Tampico “in apparent good order and condition” and were “received on board — clean on board.” This was done in spite of the fact that the coils were in a rusted condition. Moreover, neither World Bulk nor Representaciones had the authority to sign bills of lading on behalf of the Master. After the issuing of the bills of lading, Jordan wrote World Bulk a letter, dated August 19, 1963, stating that Jordan agreed to be fully responsible for all consequences arising out of the release of clean onboard Bills of Lading by you to us, notwithstanding: a) any rust which may be on the outside and on the inside of the coils, b) the premature release of these Bills of Lading inasmuch as loading is expected to be completed only-on August 20th or 21st. The plaintiffs were unaware of the rusted condition of the coils at the time of loading. The Sea Star sailed from Tampico on August 21, 1963, and arrived in Cleveland on September 27, 1963. When the hatches were opened, substantial damage to the Demsey coils was found, such as crimping, bending, telescoping and the breaking and loosening of the bands in both the ’tween deck and the lower hold. An inspection by a marine surveyor revealed that improper chocking and stowing caused the coils to shift during the voyage, and that much of the damage was caused by coils rolling into one another. Further damage was caused by one or more coils falling through the defective ’tween deck hatch covers into the hold below. There" }, { "docid": "22117342", "title": "", "text": "except rust and the damage caused by the discharge of cargo at Chicago by Pittston, was caused by improper stowage in the ’tween deck and in the hold. Whether there should be some additional indemnity or contribution between some of the parties with respect to the specific damage caused by the falling of one or two coils through the defective hatch covers into the hold by reason of the unseaworthiness of the defective hatch covers must be left to the remand. We have nothing before us to warrant a definitive ruling on this point. It may prove so difficult to ascertain the extent of this particular damage or it may be of so minor a character that the parties may decide to overlook it. Following the survey, the Demsey coils were discharged and the vessel proceeded to Chicago. Upon the arrival of the Sea Star in Chicago, on October 1, 1963, the coils were inspected prior to discharge. This inspection revealed that the Interstate coils suffered damage similar to that suffered by the Demsey coils. In addition, sixty-four of the Interstate coils were found to be excessively rusted and pitted. The coils were discharged by Pittston Stevedoring Corp., which used bare wire slings without spreader bars or other protective devices. As many as three coils were included in one lift, causing the edges of the coils to cut into one another. In addition, some coils were dropped on other coils, and some were dropped onto the cement pier. Complaints were made about the way the coils were being discharged, but Pittston took no corrective action. Demsey and Interstate sued in admiralty in the United States District Court for the Southern District of New York to recover damages against Sea Star (in rem), World Bulk, Atlantic and Pittston. Jordan was impleaded by Atlantic and World Bulk, and Jordan, in turn, filed cross-claims against World Bulk, Atlantic and Pittston. Atlantic and World Bulk, moreover, asserted cross-claims against each other and against Pittston. In an interlocutory order, reported at 321 F.Supp. 663 (S.D.NY.1970), Judge Bonsai held: 1. Plaintiffs are entitled to recover from" }, { "docid": "22117365", "title": "", "text": "resolve as this would normally be the task of a Commissioner or Master who has not yet been named. For example: (1) Most of the damage to the steel coils was caused by the failure to shore and chock coils in the ’tween deck and the failure properly to stow the coils in the hold. Because of this negligence many coils rolled around the ’tween deck and others in the hold hit against one another. There must be a factual determination in terms of dollars of the total amount of the damage caused by failure to properly load and properly stow the cargo. (2) The damage caused by Pittston in the unloading at Chicago must be fixed in terms of dollars vis-a-vis the total damage, most of which was caused during the voyage from Tampico. (3) There must be a determination in terms of dollars of the damage to the sixty-four Interstate coils found to be excessively rusted and pitted. In view of the unusual expenditure of time and effort by counsel and by the District Court and by this Court in attempting to unravel the maze of conflicting contentions in this complicated case and the relatively small amount of money involved, we think it proper to repeat Judge Bonsai’s excellent suggestion that the amounts due to Demsey and Interstate and the amounts to be paid by Jordan for the overall damage and for excessive rust and pitting of the sixty-four coils and by Pittston for the damage caused by the unloading at Chicago, be stipulated. Affirmed in part and reversed in part. The case is remanded to the District Court for further proceedings not inconsistent with this opinion. . Pittston also asserts that it was error not to admit its Exhibit F into evidence. This exhibit was an undated letter, addressed “to whom it may concern,” describing the condition of the coils prior to discharge in Chicago. Pittston failed to demonstrate that the letter was a business record made in the regular course of business. See Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943)." }, { "docid": "3562167", "title": "", "text": "not exceed a maximum measured from its cost of the goods. Upon the findings, including the calculation, stated earlier, this maximum will be awarded. In addition, plaintiff will recover interest at the rate of six percent from July 22, 1964. Judgment will be entered (1) awarding a recovery to plaintiff against Universal of $10,890.64 with interest at six percent from July 22, 1964, plus costs, and (2) dismissing Universal’s third-party complaint, with costs to McGrath. . The Court’s findings as to the condition of the goods when lifted rest in part upon the bill of lading, but also upon the inferences drawn from their damaged condition upon delivery to plaintiff. . There has been some gingerly effort by the defense to suggest reliance upon the standard provision in the bill of lading that “superficial rust, oxidation or any like condition due to moisture is not a condition of damage and acknowledgment of the receipt of the goods in apparent good order and condition is not a representation that such conditions of rust, oxidation and the like did not exist on receipt.” The findings, reflecting the evidence, are that the severe rust substantially destroying the tubes occurred as a result of events long after lifting. The damage is unrelated to any “superficial rust” which may or may not have existed at the time of delivery to the carrier and which would not, in any event, have impaired the essential soundness of the cargo. Cf. Copco Steel & Eng. Co. v. The Prins Willem Van Oranje, 159 F.Supp. 79, 82, 83, 90 (E.D.Mich.1957) ; Copco Steel & Eng. Co. v. The Prins Frederik Hendrik, 129 F.Supp. 469, 471 (E.D.Mich.1955). . Nobody questions the court’s power to award such interest. Petition of City of New York, 332 F.2d 1006, 1007-1008 (2d Cir. 1964). Defendant appeals to discretion for a different ruling. The appeal is not moving. The long delay in paying this claim was not strongly defensible." }, { "docid": "22117348", "title": "", "text": "in personam,. United Nations Children’s Fund, supra; The Poznan, 276 F. 418 (S.D.N.Y.1921); Scrutton on Charterparties and Bills of Lading 51 (17th ed. 1964). We therefore affirm the District Court’s finding that a prima facie case has been made out against World Bulk and the Sea Star (in rem). Once a prima facie case has been established, the burden of proof is on the defendants to establish that the damage was not due to their negligence, or that it was occasioned by one of the “excepted causes” in Section 1304(2) of COGSA. Daido Line v. Thomas P. Gonzalez Corp., supra, 299 F.2d 669 (9th Cir. 1962); Mamiye Bros. v. Barber Steamship Lines, Inc., supra, 241 F.Supp. 99 (S.D.N.Y.1965), aff’d, 360 F.2d 774 (2d Cir.), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449 (2d Cir. 1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952). Judge Bonsai found that, with the exception of the rust, defendants failed to rebut plaintiffs’ prima facie case. We hold that there was ample evidence to support this finding, and we affirm it. The hatch boards on the ’tween deck were old and dry, and therefore incapable of supporting the weight of the coils. Consequently, the Sea Star was to this extent unseaworthy with respect to carrying coils in the ’tween deck. Furthermore, as stated above, the coils were not properly and carefully stowed in the ’tween deck due to inadequate chocking and shoring and the stowage in the hold was in various respects improper. Finally, the discharge at Chicago was conducted in an improper manner. Accordingly, we agree with Judge Bonsai that, with the exception of the rust, defendants have not rebutted plaintiffs’ prima facie case by demonstrating that the damage to the coils was not due to defendants’ negligence. We therefore affirm the holding that Demsey and Interstate are entitled to recover from World Bulk and Sea Star (in rem) for all damage to the coils, with the exception of the rust. Interstate, however, also claims that" }, { "docid": "22117362", "title": "", "text": "1303 (2) of COGSA, the carrier has the duty to load, stow and discharge the cargo. Section 1303(8) voids any provision relieving the carrier of liability for failure to perform its duties under this Section. Jordan contends that Clause 17 of the voyage charter is just such an exculpatory provision. We disagree. Section 1303(2) made it World Bulk’s duty to the plaintiffs to load, stow and discharge the cargo. The fact that Jordan owes this same duty to World Bulk, under the voyage charter, in no way affects World Bulk’s responsibility to Demsey and Interstate. Consequently, we hold that World Bulk is entitled to indemnity from Jordan to the extent plaintiffs or Atlantic recover from World Bulk for damage that was caused by improper loading and stowing. We also disagree with the ruling below that World Bulk is not entitled to indemnification from Jordan for any damages it must pay Interstate as a result of Pittston’s negligence. This ruling was based on a finding that World Bulk hired Pittston. Judge Bonsai held, however, that it was Jordan’s duty to discharge the cargo and that Jordan had, in fact, paid for Pittston’s services. In light of these facts we decide and find that Jordan, not World Bulk, was Pittston’s employer. Accordingly, World Bulk is entitled to be indemnified by Jordan to the extent it must pay Interstate for damage that occurred during discharge in Chicago. We affirm the lower court holding that, because of the letter of indemnity written by Jordan, World Bulk is entitled to indemnification from Jordan for excessive rust damage to sixty-four of the Interstate coils. 8. Judge Bonsai held that Atlantic was not entitled to indemnity from Jordan because Representaciones “coordinated” the loading of the Sea Star and because World Bulk hired Pittston. As we have seen, the “coordination” by Rep-resentaciones did not relieve Jordan of its responsibilities under the voyage charter. Atlantic, however, was a stranger to the voyage charter. There is no privity between Atlantic and Jordan. The Banes, 221 F. 416 (2d Cir. 1915); Flat-Top Fuel Co. v. Martin, 85 F.2d 39 (2d Cir." }, { "docid": "22117345", "title": "", "text": "in Tampico, and improper discharge in Chicago. World Bulk is entitled to indemnity from Jordan for any damages it must pay Interstate for the sixty-four coils which were excessively rusted and pitted. 8. Atlantic is not entitled to indemnity from Jordan to the extent plaintiffs recover in rem from Sea Star for damage caused by improper loading, stowing and discharge. Atlantic is entitled to indemnity from Jordan to the extent Interstate recovers in rem from Sea Star for excessive rusting and pitting to the sixty-four coils. We shall discuss these findings seriatim. 1. Upon the issuance of bills of lading at Tampico, the loading, stowing, transport and discharge of the coils became subject to the Carriage of Goods by Sea Act of 1936 (COGSA), 46 U.S.C. Section 1300 et seq. (1970). COGSA Section 1305. COGSA, Section 1301(a) defines “carrier” as “the owner or the charterer who enters into a contract of carriage with a shipper.” According to Section 1301(b), a bill of lading is a contract of carriage. Because World Bulk’s agent, Representaciones, signed the bills of lading, World Bulk is the COGSA carrier. Under COGSA, plaintiffs established a prima facie case by proving receipt of the coils by the ship in good order, and delivery at destination in a damaged condition. Daido Line v. Thomas P. Gonzalez Corp., 299 F.2d 669 (9th Cir. 1962); Mamiye Bros. v. Barber Steamship Lines, Inc., 241 F.Supp. 99 (S.D.N.Y.1965), aff’d, 360 F.2d 774 (2d Cir.), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966); Interstate Steel Corp. v. S. S. “Crystal Gem,” 317 F.Supp. 112 (S.D.N.Y.1970). COGSA, Section 1303(4) makes the bill of lading prima facie evidence of the receipt by the carrier of the goods as described in the bill. Under Sections 1303(1) and (2) of COGSA, the carrier is bound to exercise due diligence to make the ship seaworthy, to make the ship fit and safe for the reception, carriage and preservation of the cargo, and to properly load, handle, stow and discharge the goods being shipped. Every claim for cargo damage creates a maritime lien against the" }, { "docid": "22117347", "title": "", "text": "ship which may be enforced by a libel in rem. Gilmore & Black, The Law of Admiralty Section 3-45 at 165 (1957). COGSA, Section 1303(8) prohibits a shipowner from contracting out of this liability. The fact that the Sea Star was operated under charter to World Bulk does not affect the liability of the vessel. Pioneer Import Corp. v. The Lafcomo, 49 F.Supp. 559 (S.D.N.Y.), aff’d, 138 F.2d 907 (2d Cir. 1943), cert. denied sub nom. Black Diamond Lines, Inc. v. Pioneer Import Corp., 321 U.S. 766, 64 S.Ct. 523, 88 L.Ed. 1063 (1944). The Sea Star became liable to the plaintiffs once the coils were aboard. Pioneer Import Corp., supra. Although the Master did not sign the bills of lading, the sailing of the Sea Star with the coils aboard constituted a ratification of the bills of lading. The Muskegon, 10 F.2d 817 (S.D.N.Y.1924); United Nations Children’s Fund v. S/S Nordstern, 251 F.Supp. 833 (S.D.N.Y.1966). Because, however, Atlantic did not authorize World Bulk’s agent to issue the bills of lading, Atlantic is not liable in personam,. United Nations Children’s Fund, supra; The Poznan, 276 F. 418 (S.D.N.Y.1921); Scrutton on Charterparties and Bills of Lading 51 (17th ed. 1964). We therefore affirm the District Court’s finding that a prima facie case has been made out against World Bulk and the Sea Star (in rem). Once a prima facie case has been established, the burden of proof is on the defendants to establish that the damage was not due to their negligence, or that it was occasioned by one of the “excepted causes” in Section 1304(2) of COGSA. Daido Line v. Thomas P. Gonzalez Corp., supra, 299 F.2d 669 (9th Cir. 1962); Mamiye Bros. v. Barber Steamship Lines, Inc., supra, 241 F.Supp. 99 (S.D.N.Y.1965), aff’d, 360 F.2d 774 (2d Cir.), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449 (2d Cir. 1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952). Judge Bonsai found that, with the exception of the rust, defendants failed to rebut" }, { "docid": "22117363", "title": "", "text": "was Jordan’s duty to discharge the cargo and that Jordan had, in fact, paid for Pittston’s services. In light of these facts we decide and find that Jordan, not World Bulk, was Pittston’s employer. Accordingly, World Bulk is entitled to be indemnified by Jordan to the extent it must pay Interstate for damage that occurred during discharge in Chicago. We affirm the lower court holding that, because of the letter of indemnity written by Jordan, World Bulk is entitled to indemnification from Jordan for excessive rust damage to sixty-four of the Interstate coils. 8. Judge Bonsai held that Atlantic was not entitled to indemnity from Jordan because Representaciones “coordinated” the loading of the Sea Star and because World Bulk hired Pittston. As we have seen, the “coordination” by Rep-resentaciones did not relieve Jordan of its responsibilities under the voyage charter. Atlantic, however, was a stranger to the voyage charter. There is no privity between Atlantic and Jordan. The Banes, 221 F. 416 (2d Cir. 1915); Flat-Top Fuel Co. v. Martin, 85 F.2d 39 (2d Cir. 1936). But, in a proceeding of this character, we see no point in an elaborate and wholly unnecessary circuity of action. As Atlantic is entitled to indemnity from World Bulk for the damage caused by improper loading and stowing and as World Bulk is entitled to indemnity for the same damage from Jordan, the result is that Jordan must pay the principal amount of loss for cargo damage involved in this case. By parity of reasoning if Atlantic is liable for the damage caused by Pittston’s negligence in the unloading at Chicago and is entitled to indemnity from Pittston or from Jordan, Pittston’s employer, this loss must be paid by Pittston. We affirm the ruling below that Atlantic is entitled to be indemnified by Jordan to the extent Interstate recovers, in rem, from Sea Star for the excessive rust damage to the sixty-four coils. Thus we have disposed of the legal questions affecting liability as between the parties to this litigation. There remains a congeries of factual issues which Judge Bonsai made no attempt to" }, { "docid": "22117338", "title": "", "text": "Paramount.” The voyage charter between World Bulk and Jordan provided that the cargo was “to be loaded, stowed and discharged free of risk and expense to the vessel,” and that the “U.S. Clause Paramount” and the “New York Produce Exchange Arbitration Clause” were to be incorporated therein. The coils were shipped by rail from Mexico City and Monclova to Tampico, where the Sea Star was waiting, in August, 1963. At time of loading, the coils were properly and adequately strapped for the voyage, but they were in a rusted condition. The stowage plan, prepared by Rep-resentaciones Marítimas, S. A., World Bulk’s agent, provided that the coils consigned to Interstate were to be stowed in Nos. 1-5 lower holds, and the coils consigned to Demsey were to be stowed in Nos. 1-5 lower holds, above the Interstate coils, and in Nos. 1, 2, 4, 5 ’tween deck. The ’tween deck hatch covers were old and dry, so the chief officer instructed the stevedores not to stow any coils on top of the hatch covers. When it appeared that the letter of credit arranged by Interstate in favor of Eastern would expire, Jordan asked World Bulk to issue clean-on-board bills of lading in return for indemnity against any consequences arising from the issuance of such bills. Accordingly, on August 16, 1963, Representaciones, World Bulk’s agent, issued three bills of lading (two with respect to the coils ordered by Interstate and one with respect to the coils ordered by Demsey). Each bill of lading was signed by Representa-ciones, “for the Master,” and stated that the coils were shipped at Tampico “in apparent good order and condition” and were “received on board — clean on board.” This was done in spite of the fact that the coils were in a rusted condition. Moreover, neither World Bulk nor Representaciones had the authority to sign bills of lading on behalf of the Master. After the issuing of the bills of lading, Jordan wrote World Bulk a letter, dated August 19, 1963, stating that Jordan agreed to be fully responsible for all consequences arising out of the" }, { "docid": "7375450", "title": "", "text": "KOSCINSKI, District Judge. This is an action in Admiralty for rust damage to steel shipped from Antwerp, Belguim, on August 16, 1949, on board the S. S. Prins Willem Van Oranje for delivery to libelant at Detroit, Michigan, where it was outturned on September 11, 1949. Suit was filed on July 31, 1950. The libel and complaint alleges that 158 lifts (290 tons) of structural steel shapes were delivered to respondents in good order and condition for transportation and delivery in like condition, under the terms of the bill of lading, but were delivered seriously damaged by rust, to libelant’s damage of $5,000, as nearly as the damage could then be estimated. At the pretrial hearing libelant particularized its damage as the cost of pickling 261 tons (143 lifts) of the steel at $17 a ton, or $4,437. At that time libelant also charged improper stowage, directly above the steel, of many crates of tulip bulbs which it claims are productive of moisture. The answer denies liability and alleges as defenses an exemption from liability for rust damage in the bill of lading, a statutory exemption from liability for damage arising from an inherent vice of the goods and from insufficiency of packing, failure to give notice of claim as required by law, absence of exceptions on the tally sheets upon discharge of the cargo, lack of knowledge by respondents as to the actual condition of the inside bars of steel in each bundle which were not visible at the time of loading, and delivery of the steel in a condition not substantially different from its condition upon loading. All of these defenses were raised at the trial. Libelant, a manufacturer of steel window frames, began importing steel late in 1948 when shipments arrived on three vessels, including the S.S. Alwaki. This shipment was next and was followed by another on the S.S. Prins Frederik Hendrik which arrived about two weeks later. All steel shipments to that date resulted in rust damage claims and led to some litigation. See Copco Steel and Engineering Co. v. The Prins Frederik Hendrik, D.C.," } ]

[ { "docid": "5906864", "title": "", "text": "conduct itself sufficiently negative and pervasive to create an adverse employment action. We agree with the district court that “such treatment without more did not materially affect the terms and conditions of [Mr. Amro’s] employment. It was not severe or pervasive enough to be an adverse employment action.” Amro, 65 F.Supp.2d at 1188. Moreover, Mr. Amro fails to demonstrate that his transfer took any longer than any other transfer at Boeing or was in any way different from other lateral transfers. In sum, Mr. Amro fails to establish a prima facie case of discrimination in connection with his transfer. II. 1997 pay raise Mr. Amro also alleges his pay raise in 1997 was too low. A person alleging a Title VII wage discrimination claim must show, as part of his prima facie burden, that he was paid less, or given a lesser raise, than other similarly situated non-protected class employees. See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1363 (10th Cir.1997). Mr. Amro fails to do so. He asserts that his pay raise was less than the raises received by 92% of the engineers in his classification. However, he fails to demonstrate that there were in fact other similarly situated engineers outside his protected class who received higher raises. After carefully reviewing the record, we agree with the district court that “although [Mr. Amro] has identified others who allegedly are similarly situated engineers, he has not provided any evidence of their performance, training, education or skills. [Mr. Amro’s] own opinion that his performance is excellent does not raise a fact question as to how his performance compares to others.” Amro, 65 F.Supp.2d at 1186; see also Jones v. Denver Post Corp., 203 F.3d 748, 754 (10th Cir.2000) (“ ‘It is the manager’s perception of the employee’s performance that is relevant, not plaintiffs subjective evaluation of his own relative performance.’ ”) (quoting Furr v. Seagate Tech, Inc., 82 F.3d 980, 988 (10th Cir.1996)). In essence, Mr. Amro alleges “[t]he simple fact that [he] did not receive as high a raise as [he] feels he is worth.” Murphy v. Yellow Freight" } ]

[ { "docid": "1033265", "title": "", "text": "satisfactory work; (3) he was discharged despite the adequacy of his work; and (4) there is some evidence the employer intended to discriminate against him in reaching its RIF decision. Beaird, 145 F.3d at 1165; see also Rea v. Martin Marietta Corp., 29 F.3d 1450, 1454 (10th Cir.1994). This fourth element may be established “through circumstantial evidence that the plaintiff was treated less favorably than younger employees during the [RIF].” Beaird, 145 F.3d at 1165 (quotation omitted). If Plaintiff establishes a prima facie case, the burden of production shifts to the Defendant to rebut this presumption of discriminatory intent by asserting a legitimate, nondiscriminatory reason for the employment decision. Id. Once the Defendant meets this burden of production, “the burden shifts back again to the plaintiff to show that the defendant’s proffered reasons were a pretext for discrimination.” Rea, 29 F.3d at 1455. In other words, Plaintiff must then resist summary judgment by presenting evidence that the proffered reason was “ ‘unworthy of belief.’ ” Beaird, 145 F.3d at 1165 (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995)). At this point, the presumption of discrimination established by the prima facie showing simply “drops out of the picture,” and the analysis shifts to the plaintiff’s ultimate burden of showing that the defendant discriminated on the illegal basis of age. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). There is no dispute that the first two steps of this analysis are satisfied here. Pippin at least- met expectations as a Senior Engineer, and he was arguably treated less favorably than younger engineers— including Bobby Goodwin, thirty-three, who testified he picked up Pippin’s paperwork and “made it my own and continued what he did.” Defendant’s nondiscriminatory reason for terminating Pippin is similarly satisfied as Burlington asserts Pippin was terminated due to the RIF and Pippin’s substandard performance. Thus, the only issue before us is “whether Plaintiff has presented specific facts significantly probative to support an inference that Defendant’s proffered justifications were a pretext for discrimination.” Rea, 29 F.3d at 1455;" }, { "docid": "22603489", "title": "", "text": "may not excuse his failure to exhaust his administrative remedies with respect to his pre-1995 retaliation claims. We affirm the district court’s grant of summary judgment in favor of defendant on these claims. II. Race Discrimination Claim— Pretext Analysis In determining whether to grant summary judgment on a Title VII claim, we apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this approach, the plaintiff initially bears the burden of production to establish a prima facie case of a Title VII violation. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. “To carry the initial burden of establishing a prima facie case of race discrimination for a failure to promote claim, the plaintiff must typically show that he or she (1) belongs to a minority group; (2) was qualified for the promotion; (3) was not promoted; and (4) that the position remained open or was filled with a non-minority.” Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1534 (10th Cir.1995). Once a plaintiff has met this burden, discriminatory intent on the part of the defendant is presumed and the burden shifts to the defendant to “articulate a facially nondiscriminatory reason for the challenged employment action.” Id. at 1533; see also Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1165 (10th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 617, — L.Ed.2d -, 67 U.S.L.W. 2182 (1998). If the defendant provides a nondiscriminatory reason for the employment action, the plaintiff may defeat summary judgment by presenting sufficient evidence such that a reasonable jury could conclude that the proffered nondiscriminatory reason for the employment action is pre-textual, that is, “unworthy of belief.” See Beaird, 145 F.3d at 1165 (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995)). But cf. id. at 1176 (Tacha, J., concurring in part, dissenting in part) (“Not only must the plaintiff produce evidence of pretext, but the jpretextual evidence must be of the nature or quality from which a reasonable jury could infer illegal discrimination.”). Evidence of" }, { "docid": "2024044", "title": "", "text": "trial is necessary. Id. at 250, 106 S.Ct. 2505. III. DISCUSSION Midland presents three arguments in its motion for summary judgment. First, Midland claims Smith was not a “qualified individual with a disability” because the representations he made to the SSA were inconsistent with the ability to perform any available job at Midland, with or without reasonable accommodation. Second, Midland argues that Smith’s ADA claims are barred for failure to timely file a charge of discrimination with the appropriate administrative agency. Finally, Midland argues that the ADA does not apply retroactively to alleged discriminatory acts which arose prior to the ADA’s effective date of July 26,1992. A. Effect of Sworn Statements to SSA The Tenth Circuit has adopted the burden-shifting format set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as a framework for analyzing ADA claims when no direct evidence of discrimination exists. White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). To survive summary judgment, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Once-the plaintiff has established a prima facie case, the burden of production shifts to,the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. If the defendant employer meets this burden, “ ‘it then becomes the plaintiffs burden to show that there is a genuine dispute of material fact as, to whether the employer’s proffered reason for the challenged action is pretextual- — i.e. unworthy of belief.’ ” Marx v. Schnuck Markets, Inc., 76 F.3d 324, 327 (10th Cir.1996) (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1996)). To establish a prima facie case on a ADA claim of failure to accommodate by offering reassignment to a vacant position, the employee must show that: (1) The employee is a disabled person within the meaning of the- ADA and has made any resulting limitations from his or her disability known to the employer; (2) The preferred option of accommodation within the employee’s existing job cannot reasonably be accomplished." }, { "docid": "10966147", "title": "", "text": "Cir.1992). However, the McDonnell Douglas format is modified in an action for reverse, disparate treatment discrimination. Generally, to establish a prima facie showing of disparate treatment for violation of a work rule, plaintiff must show that: 1) he belongs to a protected group; 2) he was discharged for violating a work rule; and 3) similarly situated non-members of the protected group were treated differently. See McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1260 (10th Cir.1988). The burden of production then shifts to the employer to show a facially legitimate, nondiscriminatory reason for its employment decision. Ofelia Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). If the employer meets this burden, plaintiff must rebut the employer’s showing by demonstrating that the proffered justification is a pretext—i.e. “unworthy of belief.” Id.; Ingels v. Thiokol Corp, 42 F.3d 616, 622 (10th Cir.1994). If the plaintiff is able to show a prima facie case and presents evidence the employer’s proffered reason is unworthy of belief, the plaintiff can withstand a summary judgment motion. Ofelia Randle, 69 F.3d at 451. In this case, there is no dispute that Bel-lairs was discharged for violating a work rule. Whether CBC is entitled to summary judgment turns on analysis of the first and third prongs of the requisite prima facie showing. Bellairs fails on both counts. As to the first prong, under the modified McDonnell Douglas analysis, a reverse discrimination claimant may substitute the requirement that he be a member of a protected group with evidence that “the defendant is one of those unusual employers who discriminates against the majority.” Notari v. Denver Water Dept., 971 F.2d 585, 589 (10th Cir.1992); see Livingston v. Roadway Exp., Inc., 802 F.2d 1250 (10th Cir.1986). As to the third prong, a reverse discrimination plaintiff may present “direct evidence of discrimination, or indirect evidence sufficient to support a reasonable probability that but for the plaintiff’s status, the challenged employment decision would have favored the plaintiff.” Notari, 971 F.2d at 590. There is no genuine dispute that in 1992, CBC discharged for gross misconduct an hispanic male and" }, { "docid": "22603490", "title": "", "text": "1534 (10th Cir.1995). Once a plaintiff has met this burden, discriminatory intent on the part of the defendant is presumed and the burden shifts to the defendant to “articulate a facially nondiscriminatory reason for the challenged employment action.” Id. at 1533; see also Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1165 (10th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 617, — L.Ed.2d -, 67 U.S.L.W. 2182 (1998). If the defendant provides a nondiscriminatory reason for the employment action, the plaintiff may defeat summary judgment by presenting sufficient evidence such that a reasonable jury could conclude that the proffered nondiscriminatory reason for the employment action is pre-textual, that is, “unworthy of belief.” See Beaird, 145 F.3d at 1165 (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995)). But cf. id. at 1176 (Tacha, J., concurring in part, dissenting in part) (“Not only must the plaintiff produce evidence of pretext, but the jpretextual evidence must be of the nature or quality from which a reasonable jury could infer illegal discrimination.”). Evidence of pretext may include, but is not limited to, the following: prior treatment of plaintiff; the employer’s policy and practice regarding minority employment (including statistical data); disturbing procedural irregularities (e.g., falsifying or manipulating hiring criteria); and the use of subjective criteria. See Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir.1984); see also Beaird, 145 F.3d at 1168. Plaintiff has made a prima facie showing of race-based discrimination. He was qualified for the position of Fire and Safety Officer Supervisor, but DMHSAS awarded the job to Mr. Valley, a non-minority. However, DMHSAS has advanced a nondiscriminatory reason for its decision to promote Mr. Valley over Mr. Simms: Mr. Valley was more qualified because he had significantly greater supervisory experience. Indeed, the record reflects that Mr. Valley’s supervisory experience far exceeds that of Mr. Simms. Consequently, the issue becomes whether Mr. Simms has provided sufficient evidence that the reason advanced by DMHSAS is pretex-tual. Mr. Simms offers a variety of evidence that he claims shows pretext. Although he does not directly attack the truthfulness of defendant’s nondiscriminatory" }, { "docid": "23023827", "title": "", "text": "judgment on a circumstantial case, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the plaintiff carries that burden, the burden shifts to the defendant to articulate a facially nondiscriminatory reason for the challenged employment action. EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 & n. 4 (10th Cir.1992). If the defendant makes such a showing, the burden reverts to the plaintiff to prove that the proffered nondiscriminatory reason is pretextual, from which a jury may infer discriminatory intent. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; see also St. Mary’s Honor Center v. Hicks, - U.S. -, ---, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993) (“[Rejection of the defendant’s proffered reasons [ ] will permit the trier of fact to infer the ultimate fact of intentional discrimination.”) (emphasis in original); Ingels v. Thiokol Corp., 42 F.3d 616, 621-22 (10th Cir.1994) (same); Durham, 18 F.3d at 839-40 (same). The Tenth Circuit has recently, in Randle v. City of Aurora, 69 F.3d 441, (10th Cir.1995), expressed en banc approval of the proposition of law that “a civil rights plaintiff may withstand a motion for summary judgment and is entitled to present his claim to the factfinder if the plaintiff establishes a prima facie case and presents evidence that the defendant’s proffered nondiscriminatory reason was pretextual—i.e., unworthy of belief.” Id., 69 F.3d at 452-53. Thus, evidence of pretext (plus a prima facie case) is enough to avoid summary judgment for the defendant without requiring the plaintiff to present direct evidence of an illegal discriminatory motive. To carry the initial burden of establishing a prima facie case of race discrimination for a failure to promote claim, the plaintiff must typically show that he or she (1) belongs to a minority group; (2) was qualified for the promotion; (3) was not promoted; and (4) that the position remained open or was filled with a non-minority. See Mohammed v. Callaway, 698 F.2d 395, 398 (10th Cir.1983). For her constructive discharge claim, Reynolds must establish as the third element" }, { "docid": "3191899", "title": "", "text": "The evidence is viewed in a light most favorable to the nonmoving party. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.1998). However, the nonmoving party cannot rely solely on the allegations in the pleadings and must supply evidence of a question of fact for the case to go to the jury. See Aramburu 112 F.3d at 1402. III. Kelley alleges Goodyear did not hire him because he is African-American. To survive summary judgment, a plaintiff must first demonstrate that he has a prima facie case. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). Goodyear admits Kelley can establish a prima facie case. Under the McDonnell Douglas burden-shifting analysis, the employer is then required to show a facially non-discriminatory reason for the adverse employment action. See id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Kelley admits Goodyear has met this burden by offering two nondiscriminatory reasons for not hiring him: his poor interview and his incomplete application. Once again the burden shifts, now back to the plaintiff to demonstrate the proffered reasons for the employment action are mere pretext. See Randle, 69 F.3d at 451. Kelley puts forth, three reasons to disbelieve Goodyear’s explanation that Kelley was not hired due to his poor interview. First, Kelley asserts he performed well in the interview.. Second, Kelley claims Stott’s memory of the interview is muddled. Third, Kelley asserts Stott’s assessment of the interview is based on subjective factors. None of these reasons demonstrate that Goodyear’s explanation is pretextual. Kelley’s assertion that he performed well in the interview is without support. A plaintiff cannot create a triable issue of fact by making an assertion without supporting facts. See Thomas v. IBM, Corp., 48 F.3d 478, 485 (10th Cir.1995). Kelley claims he was not nervous during the interview, nor did he talk too much about football as Stotts claims. Kel ley’s opinion of the interview is simply irrelevant, “[i]t is the manager’s perception of the employee’s performance that is relevant, not plaintiffs subjective evaluation of his own" }, { "docid": "9443394", "title": "", "text": "that Seaboard’s proffered reason is pretextual, that is, “unworthy of belief.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.1998) (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995)). 1. Prima Facie Case Generally, to establish a prima facie case of age discrimination in termination from employment, plaintiff must show: (1) she was a member of the protected age group, over age 40; (2) she was performing satisfactorily; (3) Seaboard terminated her employment; and (4) she was replaced by a younger person. BUI v. IBP, Inc., 171 F.Supp.2d 1168, 1173 (D.Kan.2001) aff'd 34 Fed.Appx. 353 (10th Cir.2002). This test has been modified in a reduction-in-force context because the discharged employee is not always replaced with another employee. Thus, courts have modified the fourth element by requiring plaintiff to “produc[e] evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.” Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th Cir.1988) (alteration in original) (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.1988)). Because Seaboard eliminated plaintiffs position, this modified fourth element is applicable. Of the four elements on her termination claim, the only one that Seaboard contests is the fourth. The fourth element may be established through circumstantial evidence that the plaintiff was treated less favorably than younger employees during the reduction-in-force. See Carter v. Newman Mem’l County Hosp. 49 Fed.Appx. 243, 245 (10th Cir.2002); Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir.1994). “Evidence that an employer fired qualified older employees but retained younger ones in similar positions is sufficient to create a rebuttable presumption of discriminatory intent.” Branson, 853 F.2d at 771. Plaintiff makes no allegation that anyone replaced her, but she argues that Seaboard discriminated against her by deciding to keep younger employees in similar positions and terminating her employment when she declined less desirable jobs at a substantially lower rates of pay. Seaboard claims that it eliminated plaintiffs position and that it did not treat plaintiff less favorably than similarly situated employees." }, { "docid": "8908016", "title": "", "text": "at 1226 & n. 4; see also Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1536 (10th Cir.1995). Therefore, although English's Title VII, § 1981 and § 1983 claims rest on separate legal foundations, we review the sufficiency of his evidence of intentional discrimination for each under the McDonnell Douglas standard. In order, to survive summary judgment, a plaintiff relying on McDonnell Douglas bears an initial burden of establishing a prima facie case intended to eliminate the most common nondiscriminatory reasons that might account for the adverse employment action. See, e.g., Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089. Once the plaintiff has established a prima facie case, the burden then \"shift[s] to the employer to articulate some legitimate, nondiscriminatory reason\" for taking an adverse employment action against the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the defendant successfully meets its burden of production, the burden shifts back to the plaintiff to put forth evidence sufficient to allow a jury to find that the defendant's reason is pretextual, e.g., that it is unworthy of belief. See id. at 804, 93 S.Ct. 1817. English argues that the district court erred in finding that he had not met his burden of establishing a prima facie case because he had not demonstrated by a preponderance of the evidence that non-protected, similarly situated DOG employees were treated differently for committing similar infractions. In Kendrick, we recently clarified the plaintiffs primafacie burden in disciplinary discharge cases, and we held that a plaintiff does not have to show differential treatment of persons outside the protected class to meet the initial prima facie burden under McDonnell Douglas. See Kendrick, 220 F.3d at 1228-29. This is because comparison to a person outside of the protected class . is unnecessary to create an inference of discriminatory discharge.... The firing of a qualified minority employee raises the inference of discrimination because it is facially illogical to randomly fire an otherwise qualified employee and thereby incur the considerable expense and loss of productivity associated with hiring and training a replacement. Id. at 1229 (citation and quotations" }, { "docid": "4426397", "title": "", "text": "through credible evidence that plaintiff is qualified even if employer disputes evidence; burden may be met through plaintiffs own testimony or that of co-workers); see also Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 342 (10th Cir.) (subjective qualifications best evaluated at third stage of McDonnell Douglas analysis, not at prima facie stage), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982); Zahorik v. Cornell Univ., 729 F.2d 85, 93-94 (2d Cir.1984) (plaintiff may show she is qualified by showing that “some significant portion of the departmental faculty, referrants or other scholars in the particular field hold a favorable view on the question”). After plaintiff has established a prima facie case, the burden shifts to defendant to produce evidence that it took the adverse employment action for a legitimate nondiscriminatory reason. See Greene, 98 F.3d at 558; Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). Defendant must articulate and produce some evidence that it did not hire plaintiff for the Associate Professor position for a “facially legitimate and nondiscriminatory reason.” Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir.1997). Here, defendant has met this burden by stating that it did not select plaintiff because of deficiencies in her research, teaching and service. As defendant has met its burden, the presumption of discrimination drops from the case and plaintiff must establish by a preponderance of the evidence “that the proffered reason was not the true reason for the employment decision.” Id. Plaintiff may show pretext by establishing either that a discriminatory reason more likely motivated defendant or that its explanations are unworthy of credence. See Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994). A. Plaintiff’s Prior Evaluations Plaintiff claims that her favorable annual reviews and positive third-year (pre-tenure) review indicate that defendant’s proffered reason is a pretext for discrimination. A change in management’s evaluation of employee performance does not by itself, however, raise an inference of pretext. See Valdivia v. University of Kan. Med. Ctr., 24 F.Supp.2d 1169, 1174 (D.Kan.1998); see also Viola v. Philips Med. Sys. of" }, { "docid": "17608771", "title": "", "text": "L.Ed.2d 668 (1973); Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005). . McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. . EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 & n. 5 (10th Cir.2007) (discussing how elements of prima facie case in discrimination cases vary depending on context.) . Id.; Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir.2007). . Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.1998) (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995)). . See PVNF, L.L.C., 487 F.3d at 800 & n. 5. . See, e.g., Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.2005). . See, e.g., Klindt v. Honeywell Int’l, Inc., 303 F.Supp.2d 1206, 1215 (D.Kan.2004) (assuming that the plaintiff was qualified when she merited an interview in a traditional failure to promote case). . See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1192-93 (10th Cir.2000) (explaining that a defendant cannot defeat the plaintiff's prima facie case by offering the proffered reason for discharge). . EEOC v. C.R. England, Inc., 644 F.3d 1028, 1040 (10th Cir.2011). . Id. (quotation omitted). . Taher v. Wichita State Univ., 526 F.Supp.2d 1203, 1218 (D.Kan.2007) (citing Amro v. Boeing Co., 232 F.3d 790, 798 (10th Cir.2000)). As discussed more fully in the pretext analysis, Robinson does come forward with evidence that he was paid less than similarly situated employees with the same job responsibilities. . See, e.g., Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.2005). . Id. at 1102 (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997)). . Id. at 1102-03 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994)). . Danville v. Regional Lab Corp., 292 F.3d 1246, 1250 (10th Cir.2002). . Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir.2006). . Id. (quotation omitted). . Id. . Id. . In 2007 and 2008, the Labor Foreman classification did not require an Associate's degree. . Doc. 154-2, Ex. B. . It is also notable that after the Mediation Committee’s decision Robinson was apparently reprimanded for performing" }, { "docid": "16608853", "title": "", "text": "McDonnell Douglas framework, plaintiff first must establish a prima facie case of discrimination. If plaintiff succeeds, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decisions. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). Assuming defendant meets that burden, all presumptions of discrimination drop from the case. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). The burden then shifts back to plaintiff to prove by a preponderance of the evidence that defendant’s proffered reasons for the challenged actions are merely a pretext for discrimination. Randle, 69 F.3d at 451. To establish a prima facie case of race discrimination, plaintiff must show that: (1) he is a member of a racial minority; (2) his job performance was satisfactory; (3) he was adversely affected by defendant’s employment decisions; and (4) he was treated differently than similarly situated non-minority employees. See Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir.1993); McAlester v. United Air Lines, Inc., 851 F.2d 1249,1260 (10th Cir.1988). The Postal Service suggests that plaintiff is unable to meet the second and fourth prongs of the prima facie test. With respect to the second prong, the Postal Service contends that plaintiff failed to demonstrate adequate competency as a PTF City Carrier during his probationary period. The Tenth Circuit, however, has held that an employer’s proffered reason for taking an adverse employment action is not to be considered in assessing the sufficiency of plaintiff’s prima facie ease. Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1470 (10th Cir.1992) (citing MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1119— 20 (10th Cir.1991)). To the contrary, a plaintiff may make out a prima facie case of discrimination in a discharge case by credible evidence that [he] continued to possess the objective qualifications [he] held when [he] was fired, or by [his] own testimony that [his] work was satisfactory, even wjien disputed by [his] employer, or by evidence that [he] held [his] position for a significant period of time." }, { "docid": "2535234", "title": "", "text": "discrimination such that the court should consider the incidents that occurred prior to the 300-day filing limitations period. Accordingly, the court grants defendant’s motion for summary judgment with respect to plaintiffs Title VII failure-to-promote claims arising before December 20, 1995. 2. Substantive Considerations Having determined that only those claims arising within the applicable limitations period are properly before the court, the court now turns to address the merits of those claims. The court analyzes plaintiffs remaining failure-to-promote claims under the familiar burden-shifting framework first' pronounced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In the summary judgment context, plaintiff initially must raise a genuine issue of material fact on each element of her prima facie case of discrimination. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). Once plaintiff establishes her prima facie case, the burden shifts to defendant to offer a legitimate, nondiscriminatory reason for its employment decision. Id. (citing McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; EEOC v. Flasher Co., 986 F.2d 1312, 1317-19 (10th Cir. 1992)). If the defendant comes forward with a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff “to show that there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is. pretextual — i.e., unworthy of belief.” Id. (citing Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir.1994)). If the plaintiff proffers such evidence, the motion for summary judgment must be denied. Id. To establish a prima facie case in the failurerto-promote context, plaintiff must show that she “(1), belongs to a minority group; (2) was qualified for the promotion; (3) was not promoted; and (4) that the position remained open or was filled with a non-minority.” Simms v. State of Oklahoma, 165 F.3d 1321, 1328 (10th Cir.1999) (quoting Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir.1995)), petition for cert. filed, 67 U.S.L.W. 3733 (U.S. May 24, 1999) (No. 98-1884). For purposes of its motion, defendant concedes that plaintiff has adequately" }, { "docid": "9443393", "title": "", "text": "dozen and that he could hire somebody half the age [at] half the salary.” Creason Deposition at 18, Exhibit B1 to Defendant’s Suggestions (Doc. #51). Plaintiff also cites the fact that in April of 2002, Steer referred to a new administrative assistant as a “good young woman.” Plaintiffs Response (Doc. #63) at 13. This statement, made over a year after plaintiffs employment ended, does not relate to plaintiffs claim of discrimination, nor does it constitute direct evidence of discrimination. The Court therefore evaluates plaintiffs claim under McDonnell Douglas. B. McDonnell Douglas Burden-Shifting Approach Under McDonnell Douglas, plaintiff initially bears the burden of production to establish a prima facie case of discrimination. 411 U.S. at 802, 93 S.Ct. 1817. If plaintiff establishes a prima facie case, the burden shifts to Seaboard to articulate a facially nondiscriminatory reason for its actions. See Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir.1995). If Seaboard articulates a legitimate nondiscriminatory reason, the burden shifts back to plaintiff to present evidence from which a reasonable jury might conclude that Seaboard’s proffered reason is pretextual, that is, “unworthy of belief.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.1998) (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995)). 1. Prima Facie Case Generally, to establish a prima facie case of age discrimination in termination from employment, plaintiff must show: (1) she was a member of the protected age group, over age 40; (2) she was performing satisfactorily; (3) Seaboard terminated her employment; and (4) she was replaced by a younger person. BUI v. IBP, Inc., 171 F.Supp.2d 1168, 1173 (D.Kan.2001) aff'd 34 Fed.Appx. 353 (10th Cir.2002). This test has been modified in a reduction-in-force context because the discharged employee is not always replaced with another employee. Thus, courts have modified the fourth element by requiring plaintiff to “produc[e] evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.” Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th Cir.1988) (alteration in original) (quoting Branson v." }, { "docid": "23267343", "title": "", "text": "The plaintiff may then resist summary judgment if she can present evidence that the proffered reason was pretextual, \"i.e. unworthy of belief,\" see Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995), or \"otherwise introduces evidence of illegal discriminatory motive,\" id. at 453. Autoliv does not dispute the first three elements required for the showing of a prima facie case for the purposes of its summary judgment motion. Rather, it contends Stone does not meet the fourth factor of the prima facie test because he cannot establish that he was treated less favorably than younger employees during the RIF. Stone argues younger employees were placed, respectively, in a position that he previously held in the company and in other positions for which he was qualified, and that Autoliv \"refused to even consider bumping the less senior person.\" (Appellant's Br. at 20.) Thus, he claims there were two adverse employment actions: losing his job and not having the opportunity to compete for positions during the reorganization. Stone asserts many other employees knew of the reorganization while he did not. The standards applicable to the fourth element of a prima facie case of discrimination in the context of a RIF are not fully defined. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1166 (10th Cir.1998). Although \"[e]vidence that an employer fired qualified older employees but retained younger ones in similar positions is sufficient to create a rebuttable presumption of discriminatory intent[,]\" Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.1988), questions such as \"whether a single younger employee retained in a similar position is sufficient to establish the fourth element, or how similar a position must be in order to be relevant under Branson,” remain unanswered. Beaird, 145 F.3d at 1166. As explained in Beaird, we look to the purpose of the McDonnell Douglas framework to determine how to apply the framework to fit the unique nature of RIF eases: [A] prima facie case simply eliminates the most common nondiscriminatory reasons for plaintiffs rejection, namely lack of qualifications or the absence of a vacancy in the" }, { "docid": "11199729", "title": "", "text": "of discrimination. If she sets forth facts to establish a prima facie case, the burden then shifts to defendant to rebut the presumption of discrimination by articulating a legitimate, nondiseriminatory reason for the adverse employment decision. See Burdine, 450 U.S. at 254-56, 101 S.Ct. 1089; Ackerman, 956 F.2d at 947. “At the summary judgment stage, it then becomes the plaintiffs burden to show that there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pretextual-i.e. unworthy of belief.” Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). If plaintiff makes out a prima facie case of discrimination and creates an issue of fact whether defendant’s reasons are pretextual, plaintiffs claim withstands summary judgment. Id. The Court first addresses the question whether plaintiff produced direct evidence of discrimination. Plaintiff points to her testimony that Todd forecast “problems with me working there” because “there had been in the past with other women that had become pregnant,” and predicted that “they probably wouldn’t let me work.” Plaintiffs Memorandum In Opposition To Defendant’s Motion For Summary Judgment (Doc. #20) filed July 22, 1998 (citing Plaintiff depo. p. 36:7-22). Defendant points out that comments by a non-decisionmaker are not evidence of discrimination. See Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir.1994); see also Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir.1994). But the eases on which defendant relies deal with discriminatory comments by non-decisionmakers; Todd’s comments, by contrast, relate to a worker’s observation regarding how management has treated pregnant women in the past. Athough his comments suggest that Todd might have been able to provide a factual foundation for a lay opinion that Gill Studios had a discriminatory practice toward pregnant women, such testimony is not in the record on summary jüdgment. Plaintiff has failed to point to any direct evidence of discrimination. Without direct evidence of discrimination, in order to make out a prima facie case of sex discrimination based on pregnancy, plaintiff must show that (1) she belonged to the protected class, e.g., she" }, { "docid": "5440624", "title": "", "text": "each element of his prima facie case of discrimination. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). The Tenth Circuit Court of Appeals has set forth two sets of elements to establish a prima facie case of discriminatory discharge. Compare Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir.1997) (listing the elements as (1) member of a protected class; (2) discharged for violating a work rule; and (3) that similarly situated non-minority employees were treated differently) with Martin v. Nannie & The Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir.1993) (listing the elements as (1) member of a protected class; (2) qualified and satisfactorily performing job; and (3) terminated under circumstances giving rise to an inference of discrimination). Martin appears to better state the elements, when similarly situated persons are not present. See Rawlins-Roa v. United Way of Wyandotte County, Inc., 977 F.Supp. 1101, 1105 n. 2 (D.Kan.1997) (finding the Martin test “to be the correct standard, particularly because ‘similarly situated persons’ are not present in every case of discrimination”). In this case no party presents evidence of any non-minority similarly situated to plaintiff being treated differently. He was a probationary, supervisory employee during his employment. The court will apply the three-part test set forth in Martin to determine whether plaintiff has established a prima facie case for a wrongful termination claim. If he has established his prima facie case, the burden shifts to defendant to offer a legitimate, nondiscriminatory reason for its employment decision. Randle, 69 F.3d at 451 (citing McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; EEOC v. Flasher Co., 986 F.2d 1312, 1317-19 (10th Cir.1992)). If defendant presents a nondiscriminatory reason for its actions, the burden then reverts to plaintiff “to show that there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pre-textual — i.e., unworthy of belief.” Id. (citing Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir.1994)). If plaintiff proffers such evidence, the motion for summary judgment must be denied. Id. “At the summary judgment stage," }, { "docid": "16608852", "title": "", "text": "discrimination charge in November 1993. A. Race Discrimination To prevail on his race discrimination claim, plaintiff must establish that defendant had a discriminatory motive or intent. Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1236 (10th Cir.1991). Plaintiff need not prove that defendant’s employment actions were motivated solely by race, but he must show that his race was “the factor that made a difference.” Elmore v. Capstan, Inc., 58 F.3d 525, 530 (10th Cir.1995). In other words, plaintiff must establish that he was treated in a manner which, but for his race, would have been different. Clark v. Atchison, Topeka & Santa Fe Ry. Co., 731 F.2d 698, 702 (10th Cir.1984). Plaintiff offers no direct evidence that defendant discriminated against him on the basis of race, but relies instead on circumstantial evidence to prove defendant’s discriminatory intent. To insure an efficient presentation of circumstantial evidence, the Tenth Circuit has adopted the burden shifting scheme originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, plaintiff first must establish a prima facie case of discrimination. If plaintiff succeeds, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decisions. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). Assuming defendant meets that burden, all presumptions of discrimination drop from the case. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). The burden then shifts back to plaintiff to prove by a preponderance of the evidence that defendant’s proffered reasons for the challenged actions are merely a pretext for discrimination. Randle, 69 F.3d at 451. To establish a prima facie case of race discrimination, plaintiff must show that: (1) he is a member of a racial minority; (2) his job performance was satisfactory; (3) he was adversely affected by defendant’s employment decisions; and (4) he was treated differently than similarly situated non-minority employees. See Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir.1993); McAlester v. United" }, { "docid": "9394629", "title": "", "text": "1547, 1549 (10th Cir.1987) (holding that managers’ statements that plaintiffs were too old to learn new technologies and too old to be in supervisory positions were not direct evidence of discrimination; rather, remarks were “specific instances of discriminatory statements” from which the reasons for the adverse employment decision would have to be inferred). Because Dughman’s remarks were statements of personal opinion and not statements directly relating to Shorter’s termination, we conclude that Shorter has failed to present any direct evidence of discrimination. B. Indirect Evidence of Discrimination In the alternative, Shorter argues that she can establish her claim of intentional discrimination indirectly by relying on circumstantial evidence of discrimination. We evaluate Shorter’s claim under the familiar burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, the plaintiff initially bears the burden of establishing a prima facie case of discrimination. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir.1995). If the plaintiff establishes her pri-ma facie case, the burden shifts to her employer to proffer a facially nondiscriminatory reason for the challenged employment action. See id. If the employer offers a nondiscriminatory reason, the burden shifts back to the employee to show that there is a genuine issue of material fact as to whether the employer’s proffered reason is merely pretextual. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). A plaintiff can establish pretext by showing “either that a discriminatory reason more likely motivated the employer ... or that the employer’s proffered explanation is unworthy of credence.” Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994) (quotation marks omitted) (alteration in original). We assume without deciding that Shorter established a prima facie case of race discrimination in her termination. Thus, we consider whether ICG proffered a facially nondiscriminatory reason for Shorter’s termination. See Reynolds, 69 F.3d at 1533. ICG’s proffered reason for terminating Shorter is inadequate job performance. In support of this reason, ICG offered extensive" }, { "docid": "9443392", "title": "", "text": "302, 121 L.Ed.2d 225 (1992); see Carney v. Pena, 992 F.Supp. 1285, 1290 (D.Kan.1998). “Statements which on their face are expressions of personal opinion, however, can only support an inference of discrimination if the trier of fact finds the inference reasonable, and so constitute only circumstantial or indirect evidence of discrimination against the plaintiff.” Mosley, 100 F.3d at 1519-20 (quoting Ramsey, 907 F.2d at 1008). Plaintiff has not presented direct evidence of age discrimination. She does not point to any express policy. She relies on actions and statements, but on their face they do not show that Seaboard acted on discriminatory beliefs. Plaintiffs theory is that Bresky and Steer agreed to hire her after Rodrigues retired — but that they instead opted to hire “younger, cheaper, less experienced” employees to perform her job responsibilities. Plaintiff argues that Steer was well known for hiring employees “half the age for half the salary.” The record does not support plaintiffs assertions. Plaintiffs testimony is that according to Rodrigues, Steer’s “philosophy was that support people were a dime a dozen and that he could hire somebody half the age [at] half the salary.” Creason Deposition at 18, Exhibit B1 to Defendant’s Suggestions (Doc. #51). Plaintiff also cites the fact that in April of 2002, Steer referred to a new administrative assistant as a “good young woman.” Plaintiffs Response (Doc. #63) at 13. This statement, made over a year after plaintiffs employment ended, does not relate to plaintiffs claim of discrimination, nor does it constitute direct evidence of discrimination. The Court therefore evaluates plaintiffs claim under McDonnell Douglas. B. McDonnell Douglas Burden-Shifting Approach Under McDonnell Douglas, plaintiff initially bears the burden of production to establish a prima facie case of discrimination. 411 U.S. at 802, 93 S.Ct. 1817. If plaintiff establishes a prima facie case, the burden shifts to Seaboard to articulate a facially nondiscriminatory reason for its actions. See Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir.1995). If Seaboard articulates a legitimate nondiscriminatory reason, the burden shifts back to plaintiff to present evidence from which a reasonable jury might conclude" } ]

[ { "docid": "14445884", "title": "", "text": "began in 1989, long before the limitations period, it presented evidence from which a rational jury could conclude that the unlawful agreements continued in effect through the time of trial in 2002. Toledo seeks damages only for acts committed in furtherance of the conspiracy from 1998 to 2002, within the limitations period, but it is entitled to present evidence from outside that period to sustain its burden of proof. The Supreme Court has held that “[generally, a cause of action under § 1 ■accrues and the statute of limitations begins to run when a defendant commits an act that injures the plaintiffs business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (citation omitted). However, “[i]n the context of a continuing conspiracy to violate the antitrust laws, ... each time a plaintiff is injured by an act of the defendant ] a cause of action accrues to [it] to recover the damages caused by that act ... and ... as to those damages, the statute of limitations runs from the commission of the act.” Id. (citations omitted); see also Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968) (concluding that the plaintiff could bring a § 1 claim in 1955 for conduct which first began in 1912 because the defendant’s actions were “conduct which con stituted a continuing violation of the Sherman Act, and which inflicted continuing and accumulating harm on [the plaintiff]”). Consistent with that precedent, we have stated that “a conspiracy’s refusal to deal, which began outside the limitations period, may be viewed as a continuing series of acts upon which successive causes of action may accrue.” In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1173 (3d Cir.1993) (citation and internal quotation marks omitted). Therefore, we hold that Toledo was not required to prove an illegal conspiracy with evidence restricted to the limitations period. Its burden was, rather, to present evidence sufficient to allow a rational jury to conclude that Mack and its" } ]

[ { "docid": "3607047", "title": "", "text": "this title shall be forever barred unless commenced within four years after the cause of action accrued. 15 U.S.C. § 15b. The primary question in this appeal is when the appellants’ cause of action “accrued.” We assume for purposes of this issue, as the district court did, that appellants’ complaints state a valid cause of action. It follows, then, that appellants could have raised their antitrust claim as soon as the allegedly unlawful agreements were executed and they suffered harm therefrom. But this does not mean their cause of action necessarily “accrued” only at that time. In Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236 n. 15, 20 L.Ed.2d 1231 (1968), the Supreme Court held that although an unlawful lease-only policy first affected the plaintiff in 1912, a suit instituted in 1955 was not barred by Pennsylvania’s six year statute of limitations, since the lease-only policy was “conduct which constituted a continuing violation of the Sherman Act . .. [and] inflicted continuing and accumulating harm on Hanover.” Id. The “continuing violation” exception to the rule that the action accrues at the time the initial violation first injures the plaintiff was further delineated by the Court in Zenith Radio Corp. v. Hazeltine, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77, which stated: [i]n the context of a conspiracy to violate the anti-trust laws, ... each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. Id. at 338, 91 S.Ct. at 806. Under Zenith and Hanover Shoe, then, any act within the limitation period that effectuates an antitrust injury pursuant to the conspiracy [or in this case the agreement] gives rise to an action for damages. For their action to survive, plaintiff-appellants had to show an “overt act” pursuant to the original tying arrangement by the appellees within the limitation period which caused them an antitrust" }, { "docid": "14014316", "title": "", "text": "areas of the law, where each act in furtherance of the wrongful scheme or pattern begins a new limitations period but does not reach back to render timely claims based on acts outside the statutory limitation period. E.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502, 88 S.Ct. 2224, 2236, 20 L.Ed.2d 1231 (1968) (continuing antitrust violation); Singleton v. City of New York, 632 F.2d 185 (2d Cir.1980); Rutkin v. Reinfeld, 229 F.2d 248 (2d Cir.), cert. denied sub nom. Kaplow v. Reinfeld, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956) (continuing conspiracy); II Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 338(b), at 149 (rev.ed.1995) (continuing antitrust violation). .There are important differences between Title VII cases and actions based on claims under Sections 1981 and 1985(3) that may warrant different treatment with respect to continuing violations. The limitation period in Title VII cases is 180 to 300 days, recovery of back pay is capped at two years, and compensatory and punitive damages are capped at legislatively determined amounts, even in continuing violation cases. 42 U.S.C. §§ 1981a, 2000e-5(g) (1988 & Supp.1993). The limitation period in Section 1981 and 1985(3) cases is much longer. Even more important, there is no cap on the period for which monetary damages may be awarded. Hence, simple transplantation of the continuing violation doctrine from Title VII to Sections 1981 and 1985(3) may produce unintended consequences. In view of this Court’s conclusion that the requirements of the continuing violations doctrine, as it is applied in Title VII cases, are not satisfied here, this issue need not be decided. . See Purrington v. University of Utah, 996 F.2d 1025 (10th Cir.1993); Selan v. Kiley, 969 F.2d 560 (7th Cir.1992); Haithcock v. Frank, 958 F.2d 671 (6th Cir.1992); Johnson v. Rodriguez, 943 F.2d 104 (1st Cir.1991); Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472 (9th Cir. 1989); Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C.Cir. 1988); EEOC v. Westinghouse Electric Corp., 725 F.2d 211 (3d Cir.1984); Berry v. Board of Supervisors of Louisiana" }, { "docid": "22773335", "title": "", "text": "of an affirmative defense to it, which would make the granting of a Rule 12(b)(6) dismissal proper. Generally, an antitrust cause of action accrues, and the four-year statute of limitations begins to run, when a defendant commits an act that injures a plaintiff’s business. There are two grounds for allowing an antitrust suit to be brought more than four years after the events that initially created a cause of action. These grounds are derived from Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) and Hanover Shoe, Inc. v. United Shoe Machinery Corp. 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). The first ground is the continuing conspiracy or continuing violation exception that permits a cause of action to accrue whenever the defendant commits an overt act in furtherance of an antitrust conspiracy or, in the absence of an antitrust conspiracy, commits an act that by its very nature is a continuing antitrust violation, See Zenith, supra, 401 U.S. at 338-40, 91 S.Ct. at 806-07; Hanover Shoe, supra, 392 U.S. at 501 n. 15, 88 S.Ct. 2236 n. 15. The second ground involves situations where the defendant’s antitrust act is “revived” outside the limitations period, as a basis for damages, because when the act originally occurred, the plaintiff’s damages were speculative or unprovable. See Zenith, supra, 401 U.S. at 339^0, 91 S.Ct. at 806-07. In the present case, Avondale invokes two versions of the continuing violation argument, as well as the speculative damages argument. Although these exceptions are ostensibly separate, there is some relation between them. Our decision in City of El Paso v. Darbyshire Steel Company, Inc., 575 F.2d 521, 523 (5th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), established a relationship between the continuing violation exception in Zenith and Hanover Shoe and the speculative damage exception in Zenith. In El Paso, we made application of one version of the continuing violation exception — the continuing benefits exception (receipt of benefits under the contract is a continuing violation of the antitrust laws)" }, { "docid": "14916437", "title": "", "text": "injury, which relates to the chain of causation between the injury and the unlawful conduct). Although courts have used the term “direct” with some latitude, under Second Circuit precedent, an injury is direct where plaintiffs harm arises from defendant’s misrepresentations to the plaintiff and not from an injury to a third party. See Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 237-39 (2d Cir.1999) (collecting cases). Analysis requires considering plaintiffs’ contention that they are both the direct victims and the intended targets of defendants’ fraud. Illinois Brick doctrine does not bar plaintiffs’ claims under either theory. The cases relied on by defendants do not involve indirect purchasers who are direct victims or intended targets of fraud. Barring plaintiffs’ claims would negate the long-standing principle underlying the Illinois Brick doctrine that the victim who is in the best position to uncover violations gets the full recovery. See Carter, 777 F.2d at 1176. i. Illinois Brick The Illinois Brick doctrine originated in the context of antitrust law. In Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), the Supreme Court rejected an antitrust defendant’s claim that the plaintiff buyer did not suffer a cognizable injury because it passed on the illegal overcharges to his customers. In that case, a shoe manufacturer sued a manufacturer and distributor of shoe machinery on the theory that the defendant monopolized the shoe industry through its practice of leasing shoe equipment, instead of selling it. Id. at 483-84, 88 S.Ct. 2224. Plaintiff sought to recover the difference between the price of rentals and the amount he would have paid, had defendant been willing to sell the shoe machinery. Id. The Supreme Court held that so long as the seller continued to charge the illegal price, the buyer was not barred from recovery even if he had recouped the overcharge by charging higher prices to his customers. Id. at 489, 88 S.Ct. 2224. The Court’s first concern was that allowing defendant to assert that plaintiff passed on the overcharges would make it virtually" }, { "docid": "12746523", "title": "", "text": "Under the continuing-violation doctrine, “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.2001) (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991)). Plaintiffs allege that this doctrine applies, inter alia, on the ground that Abbott and AbbVie continued to sell Niaspan to consumers at an above-market price “at least through the beginning of 2014.” DP Compl. ¶ 95. The Court agrees with plaintiffs that Abbott/AbbVie’s alleged ongoing sales of Niaspan at a supracompetitive price constitute a continuing violation. Every court to have considered this issue in the pay-for-delay context has held that a new cause of action accrues to purchasers upon each overpriced sale of the drug. See, e.g., In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 549 (D.N.J.2004) (“Plaintiffs’ claims are not barred by the statute of limitations to the extent that they bought and overpaid for K-Dur within the applicable time limitations.”); In re Buspirone Patent Litig., 185 F.Supp.2d 363, 378 (S.D.N.Y.2002) (“[I]f a party commits an initial unlawful act that allows it to maintain market control and overcharge purchasers for a period longer than four years, purchasers maintain a right of action for any overcharges paid within the four years prior to their filings.”); In re Skelaxin (Metaxalone) Antitrust Litig., No. 12-md-2343, 2013 WL 2181185 (E.D.Tenn. May 20, 2013) (holding that the plaintiffs’ claims were timely because they were “overcharged for metaxalone well into the limitations period”). Defendants have cited no persuasive case authority to the contrary. Moreover, while it has yet to consider the issue in the context of a pay-for-delay lawsuit, in other antitrust cases, the U.S. Court of Appeals for the Third Circuit has specifically rejected the argument that an allegedly anticompetitive agreement must have occurred within the limitations period for the continuing-violation doctrine to apply. For instance, in In re Lower Lake Erie Iron Ore Antitrust Litigation, the Third Circuit rejected a “narrow" }, { "docid": "22471982", "title": "", "text": "process rights. Br. of Appellants at 23-24. The continuing violations doctrine is an “equitable exception to the timely filing requirement.” West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). Thus, “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991). In order to benefit from the doctrine, a plaintiff must establish that the defendant’s conduct is “more than the occurrence of isolated or sporadic acts.” West, 45 F.3d at 755 (quotation omitted). Regarding this inquiry, we have recognized that courts should consider at least three factors: (1) subject matter — whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency— whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence — whether the act had a degree of permanence which should trigger the plaintiffs awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. See id. at 755 n. 9 (citing Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983)). The consideration of “degree of permanence” is the most important of the factors. See Berry, 715 F.2d at 981. The continuing violations doctrine has been most frequently applied in employment discrimination claims. See, e.g., West v. Philadelphia Electric Co., 45 F.3d 744; Bronze Shields, Inc., v. New Jersey Dept. of Civil Serv., 667 F.2d 1074, 1081 (3d Cir.1981); Jewett v. Int’l Tel. and Tel. Corp., 653 F.2d 89, 91 (3d Cir.1981). However, this has not precluded the application of the doctrine to other contexts. See Brenner, 927 F.2d 1283 (applying the doctrine to a claim brought under the National Labor Relations" }, { "docid": "22773334", "title": "", "text": "M. Blythe Motor Lines Corporation v. Blalock, 310 F.2d 77, 78 (5th Cir. 1962); Herron v. Herron, 255 F.2d 589, 593 (5th Cir. 1958). 2. The “Tying” Counterclaim The essence of Avondale’s counterclaim is that it deserves antitrust damages and equitable relief because the contract involves an illegal “tying” arrangement whereby Kaiser conditioned its sale of the insulation spray (the “tying” product) on Avondale’s agreement to permit Kaiser to supply the aluminum tank portion of the cargo containment system (the “tied” product). The alleged tie, Avondale argues, violates sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and section 3 of the Clayton Act, 15 U.S.C. § 14. The difficulty arises because of the four-year statute of limitations provided by the Clayton Act. In its counter claim, Avondale admits that the contract with Kaiser that forms the basis of the present lawsuit filed in 1979 was executed on or about May 25, 1973 — a date ostensibly outside the limitations period. The counterclaim on its face appears to reveal the existence of an affirmative defense to it, which would make the granting of a Rule 12(b)(6) dismissal proper. Generally, an antitrust cause of action accrues, and the four-year statute of limitations begins to run, when a defendant commits an act that injures a plaintiff’s business. There are two grounds for allowing an antitrust suit to be brought more than four years after the events that initially created a cause of action. These grounds are derived from Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) and Hanover Shoe, Inc. v. United Shoe Machinery Corp. 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). The first ground is the continuing conspiracy or continuing violation exception that permits a cause of action to accrue whenever the defendant commits an overt act in furtherance of an antitrust conspiracy or, in the absence of an antitrust conspiracy, commits an act that by its very nature is a continuing antitrust violation, See Zenith, supra, 401 U.S. at 338-40, 91 S.Ct. at 806-07;" }, { "docid": "23090388", "title": "", "text": "it follows that the underpayments constitute an antitrust injury. See Atl. Richfield, 495 U.S. at 334, 110 S.Ct. 1884 (holding that an antitrust injury is an injury that is “attributable to an anti-competitive aspect of the practice under scrutiny”); Brunswick, 429 U.S. at 489, 97 S.Ct. 690; Areeda & Hovenkamp, supra, ¶ 350, at 235 (noting that “sellers receiving illegally low prices ... suffer antitrust injury”). D. Statute of Limitations Highmark argues that the conspiracy claims are time-barred. Under 15 U.S.C. § 15b, a suit to recover damages for a violation of the Sherman Act must be “commenced within four years after the cause of action accrued.” In Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), the Supreme Court declared that an antitrust cause of action generally “accrues and the statute [of limitations] begins to run when a defendant commits an act that injures a plaintiffs business.” Id. at 338, 91 S.Ct. 795. However, “[i]n the context of a continuing conspiracy to violate the antitrust laws, ... each time a plaintiff is injured by an act of the defendants a cause of action accrues to [it] to recover the damages caused by that act and ... as to those damages, the statute of limitations runs from the commission of the act.” Id.; Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968); In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1172 (3d Cir.1993) (“[A]n injurious act within the limitations period may serve as a basis for an antitrust suit.”); see also Klehr v. A.O. Smith Corp., 521 U.S. 179, 189-90, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997). West Penn initiated this lawsuit on April 21, 2009, and so the limitations period extends back to April 21, 2005. See 15 U.S.C. § 15b. The complaint adequately alleges that the defendants performed injurious acts in furtherance of the conspiracy within the limitations period. The complaint alleges, for example, that as part of the conspiracy, Highmark refused to increase" }, { "docid": "23582245", "title": "", "text": "reasonable attorney’s fee.” 15 U.S.C. § 15. The Supreme Court has developed two limitations on Section 4. See Merican, Inc. v. Caterpillar Tractor Co., 713 F.2d 958, 962-63 (3d Cir.1983). The first restriction, the “direct purchaser rule,” limits antitrust actions to suits brought by parties that are the direct purchasers of the product. See generally Illinois Brick v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). The second limitation asks whether the “injuries [are] too remote [from an antitrust violation] to give them standing to sue for damages under § 4.” Blue Shield of Va. v. McCready, 457 U.S. 465, 476, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) (bracketing in original). In this appeal, only the first limitation is at issue. The direct purchaser rule was first considered by the Supreme Court in Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). There, the namesake shoe manufacturer brought suit against a manufacturer and distributor of shoe machinery, alleging that the manufacturer had illegally monopolized the shoe industry, in violation of Section 2 of the Sherman Act. Id. at 483-84, 88 S.Ct. 2224. The defendant argued that the plaintiff lacked standing to sue under Section 4 of the Clayton Act because the plaintiff had effectively “passed on” any injury to its customers. Id. at 488 n. 6, 88 S.Ct. 2224. The Supreme Court rejected that defense, finding that only the direct purchaser of an illegally overcharged good, and not others in the chain of manufacturing or distribution, is the party “injured” within the meaning of Section 4. Id. at 489-91, 88 S.Ct. 2224. The Court based its decision on two conclusions: (1) if indirect purchasers were permitted to bring antitrust suits, the offer of proof alleging injury and the extent of that injury would become extremely complicated, id. at 491-93, 88 S.Ct. 2224, and (2) because indirect purchasers would have “only a tiny stake in a lawsuit” and have fewer incentives to sue, a doctrine that allowed only indirect purchasers to bring suit would enable antitrust violators to “retain" }, { "docid": "9021707", "title": "", "text": "II. RANDALL'S SUIT WAS UNTIMELY Randall claims that his suit was timely because the continuing-violation doctrine delayed the start of the limitations period until his ultimate release. We disagree. Section 1983 has no statute of limitations of its own. See 42 U.S.C. § 1983. Rather, it borrows the underlying state's statute of limitations for personal-injury torts. Wallace v. Kato , 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Pennsylvania, that period is two years. 42 Pa. Stat. and Cons. Stat. Ann. § 5524(1), (7) (2014). But when a Section 1983 claim accrues is a matter of federal law. Wallace , 549 U.S. at 388, 127 S.Ct. 1091. And federal law holds that a malicious-prosecution claim accrues when criminal proceedings end in the plaintiff's favor. Heck v. Humphrey , 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). For Randall, that happened in August 2015, when Pennsylvania dropped the charges against him. So he had until August 2017 to file his suit unless something delayed or tolled the statute of limitations. Randall claims that the continuing-violation doctrine postponed the running of the statute of limitations. This doctrine applies \"when a defendant's conduct is part of a continuing practice.\" Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am. , 927 F.2d 1283, 1295 (3d Cir. 1991). In such cases, \"so long as the last act [in] the continuing practice falls within the limitations period ... the court will grant relief for the earlier related acts that would otherwise be time barred.\" Cowell v. Palmer Twp. , 263 F.3d 286, 292 (3d Cir. 2001). Here, even after Pennsylvania dropped the charges against Randall, he remained detained. He argues that this detention was part of a continuing practice by the defendants. So, he says, his limitations period did not begin to run until his release on December 24, 2015. If that is right, then his suit was timely. Under the Federal Rules, he filed on the last possible day: December 24, 2017, was a Sunday; December 25 was a legal holiday; and he sued on" }, { "docid": "7933415", "title": "", "text": "here is Pennsylvania’s two-year limitations period applicable to tort claims, see 42 Pa. Cons.Stat. Ann. § 5524(7). The date of the claim’s accrual, however, continues to be governed by federal law, see Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), although state law generally governs tolling and its effects, see Chardon v. Soto, 462 U.S. 650, 655, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983). Tearpock-Martini does not dispute that more than two years elapsed between the installation of the church sign by Appellees and the commencement of her lawsuit. Instead, she invokes the continuing-violation doctrine, which “is an ‘equitable exception to the timely filing requirement.’ ” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.2001) (quoting West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir.1995)). In brief, the rule provides that “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991). The doctrine’s focus “is on affirmative acts of the defendants.” Co-well, 263 F.3d at 293. The reach of this doctrine is understandably narrow. We have often applied it in employment discrimination cases, where only in retrospect will a plaintiff recognize that seemingly unconnected incidents were, in fact, part and parcel of a larger discriminatory pattern. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165-67 (3d Cir.2013) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). Under such circumstances, equity demands that so long as the most recent offensive utterance or adverse action occurred within the limitations period, the entire scope of that continuing violation may be considered. Id. We have cautioned, however, that equitable relief from the statutory limitations period is appropriate only where the alleged violation is “ ‘occasioned by continual" }, { "docid": "22471983", "title": "", "text": "in the nature of isolated incidents; and (3) degree of permanence — whether the act had a degree of permanence which should trigger the plaintiffs awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. See id. at 755 n. 9 (citing Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983)). The consideration of “degree of permanence” is the most important of the factors. See Berry, 715 F.2d at 981. The continuing violations doctrine has been most frequently applied in employment discrimination claims. See, e.g., West v. Philadelphia Electric Co., 45 F.3d 744; Bronze Shields, Inc., v. New Jersey Dept. of Civil Serv., 667 F.2d 1074, 1081 (3d Cir.1981); Jewett v. Int’l Tel. and Tel. Corp., 653 F.2d 89, 91 (3d Cir.1981). However, this has not precluded the application of the doctrine to other contexts. See Brenner, 927 F.2d 1283 (applying the doctrine to a claim brought under the National Labor Relations Act); Centifanti v. Nix, 865 F.2d 1422, 1432-33 (3d Cir.1989) (applying the doctrine to a procedural due process claim brought under § 1983). At issue in this case is whether this equitable doctrine should be applied to toll the statute of limitations for the plaintiffs’ substantive due process claim. The plain tiffs appear to offer two theories for application of the continuing violations doctrine here. First, they argue that the two municipal liens were continuing violations of their substantive due process rights until they were either lifted or expunged. Specifically, the $25,000 lien remained in effect until July 13, 1998, when it was expunged by a bankruptcy judge. The $250,000 lien was in place until July 1, 1997 at the earliest, when Eastgate negotiated its bankruptcy reorganization plan which included a $30,000 payment to the Township for settlement of that lien. Therefore, according to the plaintiffs, their substantive due process claim was timely raised because their complaint was filed on June 25, 1999. We disagree with the plaintiffs’ interpretation of a continuing violation and therefore" }, { "docid": "22304552", "title": "", "text": "similarity may be the source of Kodak’s argument. But the serial violation doctrine, like the systemic violation doctrine, stands as an exception to the accrual rule recognized in Johnson. The purpose of this exception is to permit suit on later wrongs where a wrongdoer would otherwise be able to repeat a wrongful act indefinitely merely because the first instance of wrongdoing was not timely challenged. See D. Laycock, Continuing Violations, Disparate Impact in Compensation, and Other Title VII Issues, 49 Law & Contemp. Probs. 53, 55 (1986) (comparing the application of the continuing violation doctrine in employment discrimination cases to its application in an antitrust case, Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), and observing that “[o]bviously, United should not be able to continue its illegal conduct forever because no one challenged it during World War I”); J. MacAyeal, The Discovery Rule and the Continuing Violation Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims, 15 Va. Envtl. L.J. 589, 615-22 (1996) (describing the history and purpose of the continuing violation doctrine); see also Sabree, 921 F.2d at 401 (discussing proper remedy). In the Title VII context, the continuing violation doctrine applies where “a number of discriminatory acts emanat[e] from the same discriminatory animus, [with] each act constituting a separate wrong actionable under Title VII.” Jensen, 912 F.2d at 522. Sexual harassment, failure to promote, and pay inequity cases often fall into this category. Plaintiffs in these cases experience harm from each employer act (e.g., a harassing comment, a denied promotion, or a smaller paycheck), for which they could recover under Title VII. Thus, under the Johnson standard, each act could trigger the running of the statute of limitations. The continuing violation doctrine ensures that these plaintiffs’ claims are not foreclosed merely because the plaintiffs needed to see a pattern of repeated acts before they realized that the individual acts were discriminatory. Thomas’s claim presents a different question: not whether she is permitted to bring suit after many repeated harms, but rather whether harm cognizable" }, { "docid": "8582345", "title": "", "text": "17-18 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992)). Defendants argue that Plaintiffs’ Second Amended Complaint should be dismissed on statute of limitations grounds and/or for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). 1. Statute of Limitations Section 4B of the Clayton Act provides for a four year statute of limitations in private antitrust actions measured from the time the cause of action accrues. 15 U.S.C. § 15b. An antitrust cause of action accrues “when a defendant commits an act that injures a plaintiffs business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 806, 28 L.Ed.2d 77, reh’g denied, 401 U.S. 1015, 91 S.Ct. 1247, 28 L.Ed.2d 552 (1971). Continuing antitrust conduct resulting in a continued invasion of a plaintiffs rights may give rise to continually accruing causes of action, however, a newly accruing claim for damages must be based on some injurious act actually occurring during the limitations period, not merely additional consequences of some pre-limitation action. Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117, 128 (5th Cir.1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976); Delaware and Hudson Railway Company v. Consolidated Rail Corp., 654 F.Supp. 1195, 1204 (N.D.N.Y.1987). See, e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 496 n. 12, 88 S.Ct. 2224, 2233 n. 12, 20 L.Ed.2d 1231 (1968) (an illegal policy first affected the plaintiff in 1912, but a suit instituted in 1955 was not barred by the statute of limitations because the policy was “conduct which constituted a continuing violation of the Sherman Act ... [and] inflicted continuing and accumulating harm on [the plaintiff].”); Poster Exchange, supra, at 126-27 (“Where the violation is final at its impact, for example, where the plaintiffs business is immediately and permanently destroyed, or where an actionable wrong is by its nature permanent at initiation without further acts, then the acts causing damage are unrepeated, and suit must be brought within the limitations period and upon the initial act.”). See" }, { "docid": "21412940", "title": "", "text": "of action ac crued — either at the point the Byrd Amendment was enacted or the point at which the initial ADP lists were published — Plaintiffs contend that their claims are not time-barred because of the existence of a continuing violation. They contend, specifically, that a new cause of action accrued to them annually on the date of the Byrd distributions. As a general matter “[a] cause of action accrues when ‘all events’ necessary to state the claim, or fix the liability of the Government, have occurred.” Mitsubishi Elecs. Am. Inc., 44 F.3d at 977 (quoting United States v. Commodities Exp. Co., 972 F.2d 1266, 1270 (Fed.Cir.1992)); see also Brown Park Estates-F'airfield Dev. Co. v. United States, 127 F.3d 1449, 1455 (Fed.Cir.1997). In the specific context of facial challenges to legislative enactments on constitutional grounds, courts have recognized that some causes of action do not necessarily accrue only upon the date of enactment. According to the continuing violation doctrine (sometimes referred to as the “continuing claim doctrine”) alluded to by Plaintiffs, “each time a plaintiff is injured by an act of the defendant a cause of action accrues to him to recover damages caused by that act and ..., as to those damages, the statute of limitations runs from the commission of the act.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). The doctrine has been applied in various contexts. See, e.g., Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (abrogation of state sovereign immunity where plaintiffs allege discrimination); Zenith, 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (antitrust); Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968) (antitrust); Beebe v. United States, 226 Ct.Cl. 308, 640 F.2d 1283, 1293 (1981) (government pay claim); Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516 (6th Cir.1997) (right to interstate travel); Palmer v. Bd. of Ed., 46 F.3d 682 (7th Cir.1995) (racial discrimination in school assignment plan). For the continuing violation doctrine to apply, “the" }, { "docid": "1481686", "title": "", "text": "v. Envirotech Corp., 939 F.2d 1271, 1274-75 (5th Cir.1991); Korody-Colyer Corp. v. General Motors Corp., 828 F.2d 1572, 1578-79 (Fed.Cir.1987); Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 239 (9th Cir.1987); Lender’s Serv., Inc. v. Dayton Bar Ass’n, 758 F.Supp. 429, 442-43 (S.D.Ohio 1991). Here, it is undisputed that the lawsuits were filed more than four years prior to the filing of the complaints in the instant case. In other words, if the operative “act” for purposes of the limitations statute is merely Smithkline’s filing of the lawsuit, the instant cases would likely be barred, as were the claims in the cases cited above. The analysis, however, does not end here. B. Statute of Limitations Exceptions The Supreme Court has delineated at least two distinct exceptions to the four-year statute of limitations in antitrust actions. First, a plaintiff may recover for a defendant’s “conduct which constitute^] a continuing violation of the Sherman Act and which inflicted continuing and accumulating harm,” notwithstanding the four-year limitations statute. Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968); accord Klehr v. A.O. Smith Corp., 521 U.S. 179, 189, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997). Second, where damages flowing from anti-competitive conduct are unascertainable at the time the defendant engages in the conduct, “the cause of action for future damages ... will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted.” Zenith Radio Corp., 401 U.S. at 339, 91 S.Ct. 795. 1. Continuing Antitrust Violation The continuing violation exception is not applicable in the instant case. The cases involving “continuing violations” generally have comprised defendants who have repeatedly invaded the plaintiffs’ interests. See, e.g., DXS, Inc. v. Siemens Med. Sys. Inc., 100 F.3d 462, 467 (6th Cir.1996). Such cases are typically price-fixing conspiracies that endure over periods of time. See Julian O. von Kalinowski, Antitrust Laws and Trade Regulation § 162.02[2] (2d ed.2003). As the Second Circuit has noted, a monopolist" }, { "docid": "193088", "title": "", "text": "restricted to injury purportedly sustained as a result of private sector conduct. C. Affirmative Defenses Pertaining to the Timeliness of the Filing of this Action Bobrick has raised statute of limitations defenses to each of the discrete claims asserted by Santana. In addition, Bobrick contends that Santana’s Lanham Act claim should be dismissed under the doctrine of laches. The timeliness of the Sherman Act, Lanham Act, and tortious interference with prospective contractual relations claims will each be addressed separately. 1. Timeliness of the Sherman Act Claims A four-year statute of limitations governs claims under the Sherman Act. See 15 U.S.C. § 15b. Santana brought this action on October 1, 1996. The dispositive question on Bobrick’s statute of limitations defense is whether Santana’s claims accrued prior to October 1,1992. “Generally, a cause of action [under the antitrust laws] accrues and the statute begins to run when a defendant commits an act that injures a plaintiffs business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Contending that the alleged conspiracy was created and acts in furtherance of the conspiracy were taken before October 1, 1992, Bobrick maintains that Santana’s claim under § 1 of the Sherman Act is time-barred and Santana’s claim under § 2 of the Sherman Act is barred to the extent it relates to actions taken by Bobrick and others prior to October 1, 1992. Santana counters by arguing that Bobrick’s conduct was part of a continuing conspiracy to violate the antitrust laws, so that Santana is entitled to recover at least those damages incurred within four years of the filing of this lawsuit. In Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 20 L.Ed.2d 1281 (1968), the Court held that, in the context of a continuing violation of the Sherman Act, a plaintiff may recover damages sustained within the limitations period. In Zenith, the Court explained: In the context of a continuing conspiracy to violate the antitrust laws, ... each time a plaintiff is injured by an act of" }, { "docid": "23560575", "title": "", "text": "only of damages resulting from “injury-causing overt acts” that occurred within the. limitations period; therefore, it would follow that the district court misapplied the statute of limitations by not requiring the jury to link damages to specific overt acts. The Supreme Court has considered and rejected the argument that, in the context of a defendant’s’ continuing violation of the Sherman Act, the statute of limitations runs from the violation’s earliest impact on a plaintiff. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236 n. 15, 20 L.Ed.2d 1231 (1968). In Hanover Shoe, the defendant had initiated an-illegal policy in 1912, some forty-three years before the plaintiff sued in 1955. The Court allowed damages within the limitations period, opining: We are not dealing with a violation which,if it occurs at all, must occur’within some specific and limited time span. Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing and accumulating harm.... Although [the plaintiff] could have sued in 1912 for the injury then being inflicted, it was equally entitled to sue in 1955. Id. (citation omitted). To the extent that the steel companies’ continued shipment of ore on Lower Lake Erie resembles the continued rents paid to the defendants in Hanover Shoe, the cases are indistinguishable. The main thrust of B & LE’s limitations argument has not been to distinguish Hanover Shoe, to which it refers briefly only in its reply brief. Rather, B & LE first argues that another Supreme Court decision, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-42, 91 S.Ct. 795, 806-08, 28 L.Ed.2d 77 (1971), applies. B & LE contends that Zenith generally requires proof that a newly accruing claim be based on an injurious act within the limitations period, then further argues that Zenith allows recovery of only those damages attributable to overt acts occurring within the limitations period. In Zenith, the Court articulated an exception to the general rule that a cause of action accrues each time an act causes an injury. The" }, { "docid": "21412941", "title": "", "text": "plaintiff is injured by an act of the defendant a cause of action accrues to him to recover damages caused by that act and ..., as to those damages, the statute of limitations runs from the commission of the act.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). The doctrine has been applied in various contexts. See, e.g., Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (abrogation of state sovereign immunity where plaintiffs allege discrimination); Zenith, 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (antitrust); Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968) (antitrust); Beebe v. United States, 226 Ct.Cl. 308, 640 F.2d 1283, 1293 (1981) (government pay claim); Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516 (6th Cir.1997) (right to interstate travel); Palmer v. Bd. of Ed., 46 F.3d 682 (7th Cir.1995) (racial discrimination in school assignment plan). For the continuing violation doctrine to apply, “the plaintiffs claim must be inherently susceptible to being broken down into a series of independent and distinct events or wrongs, each having its own associated damages.” Brown Park Estates, 127 F.3d at 1456. The doctrine is not applicable to a claim that is “based upon a single distinct event, which may have continued ill effects later.” Id.; see also Nat’l Advertising, 947 F.2d at 1166 (“A continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.”) (quotation marks and citation omitted). We conclude that for those of Plaintiffs’ claims that make facial challenges to the Byrd Amendment on constitutional grounds, Plaintiffs in effect have alleged a series of violations that occurred each year in which payments were made to ADPs. The Byrd Amendment takes anti-dumping duties collected under an anti-dumping duty order and pays them to certain domestic producers who satisfied the support requirement. Plaintiffs essentially challenge the discriminatory aspect of the Byrd Amendment. They argue that the Byrd Amendment on its face discriminates against Plaintiffs by excluding them" }, { "docid": "12746522", "title": "", "text": "Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). To satisfy the plausibility standard, a plaintiffs allegations must show that defendant’s liability is more than “a sheer possibility.” Id. “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.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). IV. ANALYSIS A. Statute of Limitations The Court first addresses defendants’ argument that plaintiffs’ federal antitrust claims are time-barred. Plaintiffs do not dispute that the applicable limitations period is four years, however, they argue that their claims are nonetheless timely under the continuing-violation and/or fraudulent-concealment doctrines. The Court addresses each doctrine in turn. 1. Continuing-Violation Doctrine Under the continuing-violation doctrine, “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.2001) (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991)). Plaintiffs allege that this doctrine applies, inter alia, on the ground that Abbott and AbbVie continued to sell Niaspan to consumers at an above-market price “at least through the beginning of 2014.” DP Compl. ¶ 95. The Court agrees with plaintiffs that Abbott/AbbVie’s alleged ongoing sales of Niaspan at a supracompetitive price constitute a continuing violation. Every court to have considered this issue in the pay-for-delay context has held that a new cause of action accrues to purchasers upon each overpriced sale of the drug. See, e.g., In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 549 (D.N.J.2004) (“Plaintiffs’ claims are not barred by the statute of limitations to the extent that they bought" } ]

[ { "docid": "21551180", "title": "", "text": "the preclusion ruling was based, i.e., that Conte acted: (1) with knowledge that the Gautams faced a high probability of harm, and (2) with reckless indifference to the consequences, does not constitute a finding of “willful and malicious injury” within the meaning of § 523(a)(6). An injury is willful and malicious under the Code only if the actor purposefully inflicted the injury or acted with substantial certainty that injury would result. Thus, we will vacate the order of the district court and direct it to remand the case to the bankruptcy court to conduct an adversary proceeding on whether the injury was willful and malicious within this frame of reference. I. The Gautams hired Conte to represent them in a medical malpractice action. Conte failed to comply with discovery requests, and the New Jersey Superior Court eventually dismissed the case for that reason. Conte, however, did not inform the Gautams of this dismissal, and, by the time they became aware of it, the time had passed to have the case reinstated. The Gautams sued Conte for legal malpractice and a New Jersey Superior Court jury found for the Gautams. It awarded them $520,000 in compensatory damages and $1 million in punitive damages. The jury’s award of punitive damages was grounded on its affirmative answer to the following interrogatory: It has been admitted by Mr. Conte that as of June 1980 he was aware that his client’s case against Dr. Gerry Brown had been dismissed by the court. Do you find that he deliberately omitted informing his clients of the fact that their ease was dismissed with knowledge of a high degree of probability of harm to Mr. and Mrs. Gautam and reckless indifference to the consequences of his omission? Four months after the jury’s verdict, Conte filed a Chapter 7 bankruptcy petition. The Gautams then filed an adversary complaint asserting that the debt was nondis-chargeable under § 523(a)(6) of the Bankruptcy Code, which excepts from discharge any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6)." } ]

[ { "docid": "4304447", "title": "", "text": "HISTORY The Debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code on December 22, 2011, and the case was converted to chapter 11 on March 28, 2012. The Debtor seeks to discharge his personal liability on the Judgment in this bankruptcy. In this adversary proceeding, the Plaintiff seeks to have the entire Judgment debt excepted from discharge pursuant to section 523(a)(6) of the Bankruptcy Code, based on the collateral estoppel effect of the underlying Judgment and the findings of fact upon which it is based. The Plaintiff filed a motion for summary judgment on May 29, 2012, and the Debtor filed a cross motion on July 6, 2012. A hearing was held on July 18, 2012 at which time this matter was taken under submission. This Memorandum Decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Bankruptcy Rule 7052. JURISDICTION A proceeding to determine discharge-ability under section 523(a)(6) of the Bankruptcy Code is a core proceeding over which this Court has jurisdiction. See 28 U.S.C. §§ 157 and 1334. DISCUSSION In relevant part, section 523(a)(6) provides that: “A discharge under section 727 [or] 1141 ... of this title does not discharge an individual debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6) (2012) (emphasis added). The critical issue presented by the cross motions of the parties is whether the factual and/or legal issues determined by the ALJ in imposing liability for discrimination and retaliation under New York law should be given preclusive effect on the issue of willful and malicious injury under section 523(a)(6) such that summary judgment in the Plaintiffs favor would be appropriate. 1. Summary judgment Rule 56 of the Federal Rules of Civil Procedure states, in pertinent part, 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). In ruling upon a summary judgment motion" }, { "docid": "4532735", "title": "", "text": "debtors to reorder their financial affairs and obtain a “fresh start,” unburdened by the weight of preexisting debt. See In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); In re Marques, 358 B.R. 188, 193 (Bankr.E.D.Pa.2006). Exceptions to the discharge of debts are construed strictly against creditors and liberally in favor of debtors. E.g., Cohn, 54 F.3d at 1113; In re Glunk, 455 B.R. 399, 415 (Bankr.E .D.Pa.2011). The burden of proof in nondis-chargeability proceedings is on the objecting creditor. Cohn, 54 F.3d at 1113; In re Stamou, 2009 WL 1025161, *3 (Bankr. D.N.J. Mar. 19, 2009); In re Marcet, 352 B.R. 462, 468 (Bankr.N.D.I11.2006). The elements under § 523(a) must be established by a preponderance of the evidence. See Grogan, 498 U.S. at 291, 111 S.Ct. 654; In re August, 448 B.R. 331, 357 (Bankr. E.D.Pa.2011) (citations omitted). Section 523(a)(6) excepts from discharge any debt for “willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). ‘Willful” and “malicious” are distinct elements. See In re Coley, 433 B.R. 476, 497 (Bankr.E.D.Pa.2010); see also In re DiGiovanni, 446 B.R. 709, 716 n. 8 (Bankr.E.D.Pa.2011) (discussing analytic difficulties in construing term “willful and malicious” under existing case law), aff'd 2011 WL 4359990 (E.D.Pa. Sept. 16, 2011). Cf. In re Williams, 337 F.3d 504, 509 (5th Cir.2003) (condensing “willful and malicious” into a single inquiry). The term “willful” refers to a deliberate or intentional injury, not just a deliberate or intentional act that leads to injury. E.g., Coley, 433 B.R. at 497 (citing Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998)). The plaintiff must establish that the debtor “purposefully inflict[ed] the injury or act[ed] in such a manner that he is substantially certain that injury will result.” In re Singer, 2010 WL 3732944, at *5 (D.N.J. Sept. 17, 2010) (citing In re Conte, 33 F.3d 303, 305 (3d Cir.1994)). In Conte, the Third Circuit did not expressly resolve an important issue: whether the “substantial certainty of producing injury” standard is measured objectively (ie., whether there was" }, { "docid": "12987935", "title": "", "text": "CARL L. BUCKI, Bankruptcy Judge. On this motion for summary judgment, the issue presented to the Court is whether a consumer-debtor’s conversion of proceeds from the sale of secured assets gives rise to a liability that is per se nondischargeable. Ross David Contella, the debtor herein, purchased a John Deere lawn and garden tractor, together with various accessories, on August 28, 1989. At the time of purchase, Mr. Contella executed a retail installment security agreement whereby he granted to the seller a purchase money security interest in the equipment. Because the collateral consisted of consumer goods, New York law did not require perfection by means of a UCC-1 filing. N.Y. U.C.C. § 9-302(1)(d). Approximately two weeks after the purchase, the seller assigned its lien to Deere & Company, the moving party herein. Thereafter, without the consent or knowledge of the secured creditor, on a date not stated in plaintiffs moving papers, Mr. Contella sold the collateral for value. Although he claims to have continued for some time to pay on account of his indebtedness, Mr. Contella neglected to remit the entire proceeds of sale to Deere & Company. Then, on March 31, 1993, he filed a petition for relief under Chapter 7 of the Bankruptcy Code. This Court issued its order of discharge on July 8, 1993. Deere & Company commenced the present adversary proceeding under section 523 of the Bankruptcy Code to obtain a determination, that its claim is nondischargeable. Specifically, it alleged under subdivision (a)(6) of this section that the debtor inflicted a willful and malicious injury to the property interests of Deere & Company. Alternatively, it asserted that the liability arises out of an embezzlement, as described in subdivision (a)(4) of section 523. In addition, Deere & Company sought a writ of replevin to permit its recovery of the collateral. Upon the statement of facts as set forth above, Deere & Company now moves for summary judgment. WiUful and Malicious Injury Section 523(a)(6) of the Bankruptcy Code provides that an order of discharge does not discharge an individual debtor from any debt “for willful and malicious injury" }, { "docid": "12987936", "title": "", "text": "Contella neglected to remit the entire proceeds of sale to Deere & Company. Then, on March 31, 1993, he filed a petition for relief under Chapter 7 of the Bankruptcy Code. This Court issued its order of discharge on July 8, 1993. Deere & Company commenced the present adversary proceeding under section 523 of the Bankruptcy Code to obtain a determination, that its claim is nondischargeable. Specifically, it alleged under subdivision (a)(6) of this section that the debtor inflicted a willful and malicious injury to the property interests of Deere & Company. Alternatively, it asserted that the liability arises out of an embezzlement, as described in subdivision (a)(4) of section 523. In addition, Deere & Company sought a writ of replevin to permit its recovery of the collateral. Upon the statement of facts as set forth above, Deere & Company now moves for summary judgment. WiUful and Malicious Injury Section 523(a)(6) of the Bankruptcy Code provides that an order of discharge does not discharge an individual debtor from any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” Key to this exception are the concepts of willfulness and malice. Plaintiff is entitled to summary judgment only if there is no issue of material fact as to both of these requirements. Fed.R.Bankr.P. 7056(c), In re Kaufmann, 57 B.R. 644, 647 (Bkrtey.E.D.Wis.1986). The very nature of willfulness and malice indicates that this exception to discharge applies only to exceptional situations and not to ordinary ones. The concept of willfulness requires not merely an intent to commit the wrongful act but an actual intent to inflict the resulting injury upon the affected creditor. 3 Collier on Bankruptcy ¶523.16[1] 523-129 (15th ed.1979). Malice requires conduct that is not merely tortious, but which is also wrongful and without just cause or excuse. Id. The debtor appears not to dispute that Deere & Company possesses a valid unsecured claim. When viewed most favorably to the debtor, however, the present facts do not establish willful and malicious conduct. At most, they may indicate that the debtor intentionally" }, { "docid": "17577639", "title": "", "text": "OPINION ERIC L. FRANK, Chief Judge. I. INTRODUCTION In 2008, Debtor Danielle Rezykowski (“the Debtor”) purchased a retail apparel store known as Circles, LLC (“Circles”) from Robin Nakonetschny (“the Plaintiff’). The Debtor signed a promissory note for most of the purchase price. The note was secured by the assets of the business. In approximately late 2010 and early 2011, the Debtor conducted a “blow out” sale and closed the business. The Debtor opened a separate account for the proceeds from the blow out sale, but later took the money for herself, ostensibly for her own back wages. Shortly thereafter, the Debtor filed for individual chapter 7 bankruptcy relief. The Plaintiff instituted this adversary proceeding against the Debtor requesting a determination that the Debtor’s use of the proceeds from the blow out sale gave rise to a debt for willful and malicious injury that is excepted from discharge under 11 U.S.C. § 523(a)(6). The crux of this dispute is whether the Debtor’s payment to herself caused a “willful and malicious” injury to the Plaintiff; i.e., whether the Debtor’s conduct was wrongful and whether she purposefully inflicted the injury or acted in such a manner that she was substantially certain that injury would result. See In re Singer, 2010 WL 3732944, at *5 (D.N.J. Sept. 17, 2010) (citing In re Conte, 33 F.3d 303, 305 (3d Cir.1994)). Based on the evidence presented at trial, I find, by a preponderance of the evidence, that: the Debtor’s appropriation of the sale proceeds was wrongful; she caused a willful and malicious injury to the Plaintiffs property rights; and the debt to the Plaintiff arising therefrom is nondischargeable under § 523(a)(6). II. PROCEDURAL HISTORY The Debtor filed her chapter 7 bankruptcy petition on December 23, 2011. The § 341 meeting of creditors was set for January 25, 2012. Thus, the deadline for filing objections to discharge or discharge-ability was March 26, 2012. See Fed. R. Bankr.P. 4007(c). The Plaintiff filed a complaint in the main bankruptcy case entitled “Third Party Complaint” on March 26, 2012. (Ex. P-2). On April 13, 2013, the Plaintiff initiated this adversary" }, { "docid": "1452639", "title": "", "text": "filed a voluntary petition for relief under Chapter 7. Little’s Schedule F (“Creditors Holding Unsecured Nonpriority Claims”) includes Citifinancial (denoted as “Successor in Interest to Conseco Bank Inc.”) for an amount of $10.00, and notes that the claim was entered “For Precautionary Purposes only.” On February 24, 2005, the Chapter 7 Trustee filed a No-Asset Report. Accordingly, no proofs of claims were filed by any creditors, including CMEA. CMEA commenced the above captioned adversary proceeding on March 4, 2005, seeking to determine the dischargeability of debt pursuant to 11 U.S.C. § 523(a)(6). CMEA alleges that Little owes debts to CMEA arising from a willful and malicious injury resulting from a scheme of misconduct. Specifically, CMEA asserts that pursuant to § 523(a)(6), Little’s debts are nondischargeable because they were obtained by, 1) the willful and malicious conversion of the Real Estate in the sale from Little to Ashraf; and 2) the willful and malicious fraud in connection with Conse-co’s loan to Reynolds. Little denies CMEA’s allegations, and asserts that CMEA’s injury is the result of the malfeasance, misconduct, and willful failure of its own employees to record the mortgage following the sale to Reynolds. “A dischargeability action under 11 U.S.C. § 523(a)(6) encompasses ‘two distinct claims: (1) whether the debtor owes a debt to the plaintiff and (2) whether the debt owed by the debtor to the plaintiff is nondischargeable.’ ” In re Lombardo, 326 B.R. 901 (6th Cir. BAP 2005) (quoting In re Sweeney, 276 B.R. 186, 195 (6th Cir. BAP 2002)). Section 523(a) provides, in relevant part, (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity; 11 U.S.C. § 523(a). The standard of proof for all of the dischargeability exceptions in 11 U.S.C. § 523(a) is a preponderance of the evidence standard. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (holding that the preponderance of the evidence standard applied to" }, { "docid": "4532718", "title": "", "text": "The Debtor contests her liability, asserting that she acted reasonably and in good faith based on the advice she received from her legal counsel. The outcome of this dispute turns on the Debtor’s state of mind at two (2) different points in time. The first is January 2009, when the Mortgage Loan took place, and the second is in the months following the entry of the Injunction on September 25, 2009. For the reasons that follow, I have determined that: • any debt the Debtor may owe arising from her participation in the Mortgage Loan that encumbered the Church Property is dischargeable; • the Debtor knowingly failed to comply with the CP Court Injunction and has not established a defense based on the advice of counsel, rendering the resulting damages suffered by the Synod a debt for “willful and malicious injury” that is nondischargeable under 11 U.S.C. § 523(a)(6). Accordingly, judgment, but only in part, will be entered in favor of the Synod and against the Debtor. II. PROCEDURAL HISTORY The Debtor filed a voluntary chapter 13 bankruptcy petition on June 8, 2010. The case was converted to a chapter 7 on November 18, 2010. The Debtor was granted a discharge on May 23, 2011. On March 2, 2011, the Synod filed this adversary proceeding requesting that the Debtor’s debt to the Synod be held nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2)(A). (Doc. # 1). The Debtor filed an Answer to the Complaint on April 4,2011. (Doc. #5). After a number of continuances, trial was held on February 24, 2012 and February 27, 2012. (Doc. #'s 42, 46). After the close of the Synod’s case in chief, the Debtor moved to dismiss the case. The Synod moved to amend its complaint to include claims under § 523(a)(6). While not consenting to the amendment, the Debtor did not oppose permitting the Synod to go forward under § 523(a)(6), conceding that she could not establish any prejudice from allowing the amendment to the Complaint. At the close of trial, the Synod withdrew its claim under § 523(a)(2)(A) in connection with the Mortgage" }, { "docid": "17577668", "title": "", "text": "injury are nondischargeable. See In re Kates, 485 B.R. 86, 111-12 (Bankr.E.D.Pa. 2012) (collecting cases). The Plaintiff presented no evidence that the original debt itself was created through a willful and malicious injury or that the Debtor acted willfully and maliciously when she breached her obligation to repay the Note. Rather, the conduct that created a debt for willful and malicious injury was the diversion of the proceeds of the sale of the Plaintiffs collateral. As for the Debtor’s fees and costs, it is unclear what the underlying rationale is for the $4,000.00 in attorney’s fees to be excluded from the nondischargeable debt. There is no basis in the Bankruptcy Code to exclude the Debtor’s attorney’s fees when calculating the amount of the nondis-chargeable debt. The same is true for the costs the Debtor incurred in storing the inventory. For these reasons, I find that the Sale Proceeds in the amount of $20,842.25 were converted as a result of the Debtor’s will ful and malicious conduct and that the Plaintiff’s claim in that amount is nondis-chargeable under § 523(a)(6). VII. CONCLUSION For the reasons set forth above, I will enter an order determining that the Debt- or’s debt to the Plaintiff is nondischargeable in the amount of $20,842.25. ORDER AND NOW, after trial in the above adversary proceeding and for the reasons stated in the accompanying Opinion, It is hereby ORDERED and DETERMINED that: The debt owed by the Debtor arising from her failure to remit the proceeds of the Liquidation Sale in the amount of $20,842.25 is DETERMINED to be NON-DISCHARGEABLE pursuant to 11 U.S.C. § 523(a)(6). . March 25, 2012 technically was the deadline, but the date fell on a weekend; therefore, objections were extended to the following business day. See Fed. R. Bankr.P. 9006(a)(1)(c). . The notes of testimony were not transcribed. References to the trial testimony are to the time of day in the digital recording of the hearing. . The Recital to the security agreement states the parties' intent to grant the Plaintiff a security interest in \"the assets of the Buyer.” While this may" }, { "docid": "6885674", "title": "", "text": "do not mean, however, that what was plead in the original complaint would not have supported a conversion claim. To the contrary, upon review of the earlier pleading, the Court concludes that had conversion been plead on those facts, it would likewise have been found to state a claim. Based on that finding, the Court finds that the claim in Count II of the amended complaint relates back in time to the filing of the original pleading. Count II — Legal Sufficiency The Debtor also maintains that Count II fails to state a claim for a debt arising out willful and malicious injury by the Debtor. Subsection (a)(6) of § 523 provides that “[a] discharge under section 727 ... of this title does not discharge an individual debtor from any debt — ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). This type of claim generally relates to torts and not to contracts. 4 Collier on Bankruptcy ¶ 523.12[1] (16th ed.). By its terms, it may apply to a broad range of harmful conduct. Id. To fall within this exception, the injury must have been both willful and malicious. Id., ¶ 523.12[2], The term “willful” refers to a deliberate or intentional injury, not just a deliberate or intentional act that leads to injury. In re Coley, 433 B.R. 476, 497 (Bkrtcy.E.D.Pa.2010) (citing Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998)). The plaintiff must establish that the debtor “purposefully inflict[ed] the injury or act[ed] in such a manner that he is substantially certain that injury will result.” In re Conte, 33 F.3d 303, 305 (3d Cir.1994). “Malice” refers to actions that are wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill-will. 4 Collier, supra, at ¶ 523.12[2]; see also In re Wooten, 423 B.R. 108, 130 (Bankr.E.D.Va.2010) (explaining that malice does not mean the same thing for nondischargeability purposes under § 523(a)(6) as it does in con texts outside of bankruptcy: “In bankruptcy, debtor" }, { "docid": "17577649", "title": "", "text": "9:40:10). 37. The Debtor exhausted the funds a few months after the § 341 Meeting of Creditors was held in her chapter 7 bankruptcy case. (N.T. 10:04:55). 38. The Debtor was aware of the confessed judgment against her and Circles when she withdrew the money from the segregated account. (N.T. 9:24:25). 39. The Debtor also was aware that her conduct would cause injury to the Plaintiffs property rights when she withdrew the money from the segregated account to use for her own benefit. IV. DISCHARGEABILITY UNDER 11 U.S.C. § 523 Generally speaking, the Bankruptcy Code seeks to promote two important policy interests: “to give the debtor a new financial start and to keep creditors on an equal playing field.” In re Calabrese, 689 F.3d 312, 320 (3d Cir.2012). To achieve the objective of a fresh start, the Bankruptcy Code provides debtors a discharge of their prepetition debts. Congress recognized, however, that the policy had to yield in some respects, to balance between the competing interests of debtors and creditors. The discharge is therefore, not absolute. The statutory exceptions to discharge are found in § 523(a). These exceptions are construed strictly against creditors and liberally in favor of debtors. E.g., In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); In re Vidal, 2012 WL 3907847, *15 (Bankr.E.D.Pa. Sept. 7, 2012). A creditor objecting to the dischargeability of a debt bears the burden of proof. Cohn, 54 F.3d at 1113; In re Bittar, 2012 WL 1605160, *2 (Bankr.D.N.J. May 8, 2012). The creditor must establish the nondischargeability of the debt by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re August, 448 B.R. 331, 357 (Bankr.E.D.Pa.2011) (citations omitted). Section 523(a)(6) specifically excepts from discharge any debt for \"willful and malicious injury by the debtor to another entity or to the property of another entity.\" 11 U.S.C. § 523(a)(6). To invoke the 523(a)(6) exception, the creditor must prove not only that injury has resulted, but also that the debtor's conduct was both \"willful\" and \"malicious.\" E.g., In re Vepun, 2009 WL" }, { "docid": "4304463", "title": "", "text": "that the adverse employment actions were wrought with retributivist intent to cause Plaintiffs injury. We now compare the elements of the state causes of action to the elements of section 523(a)(6). (2) Exception to Discharge— 11 U.S.C. § 523(a)(6) As previously stated, section 523(a)(6) of the Bankruptcy Code provides, in relevant part, that “[a] discharge under section 727[or] 1141 ... of this title does not discharge an individual debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity....” 11 U.S.C. § 523(a)(6) (2012) (emphasis added). The burden of establishing this exception to discharge is on the Plaintiff, who must meet the burden by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 289-90, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). “As the consequences to a debtor of finding a debt excepted from discharge are severe, exceptions to discharge are to be narrowly construed and all doubts should be resolved in the debtor’s favor.” In re Wisell, 2011 WL 3607614, at *7 (citing Denton v. Hyman (In re Hyman), 502 F.3d 61, 66 (2d Cir.2007), cert. denied, 555 U.S. 1097, 129 S.Ct. 895, 173 L.Ed.2d 106 (2009)). Courts from time to time have attempted to list or categorize conduct that has risen to the level of “willful and malicious” under section 523(a)(6). See, e.g., Musilli v. Droomers (In re Musilli), 379 Fed.Appx. 494, 498 (6th Cir.2010) (creating non-exclusive list of willful and malicious conduct). While some courts have suggested that the section 523(a)(6) exception is typically appropriate only where the underlying injury rises to the level of intentional tort, see, e.g., Lockerby v. Sierra, 535 F.3d 1038, 1041-42 (9th Cir.2008) (collecting cases), such a bright line distinction is neither conclusive nor favored. See Jendusa-Nicolai v. Larsen, 677 F.3d 320, 322 (7th Cir.2012) (recognizing that “not even all intentional torts are covered [under § 523(a)(6)].”); Kimmel v. State of N.Y., 76 A.D.3d 188, 906 N.Y.S.2d 403, 407 (N.Y.App.Div. 4th Dept.2010) (holding that discrimination claims under NYSHRL are statutory and do not give rise to tort liability). Had" }, { "docid": "4532717", "title": "", "text": "into a bank account that the Debtor and another officer of Redeemer controlled. On September 25, 2009, the CP Court issued an injunction (“the Injunction”) that compelled Redeemer (and the Debtor) to turn over all of its assets to the Synod. Thereafter, the Synod learned of: (1) the January 2009 real estate transfer to the new church entity and the related Mortgage Loan that encumbered the real property; and (2) the existence of a bank account holding the net proceeds from the mortgage loan that was not turned over to the Synod after the issuance of the Injunction. The Synod filed a contempt petition to enforce its newly-acquired injunction. The contempt proceedings were stayed by the filing of the Debtor’s bankruptcy case on June 8, 2010. The Synod filed an adversary complaint against the Debtor in this court on March 2, 2011 asserting that its claims against the Debtor arising from the Mortgage Loan and from the Debtor’s asserted violation of the Injunction are excepted from discharge pursuant to 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(6). The Debtor contests her liability, asserting that she acted reasonably and in good faith based on the advice she received from her legal counsel. The outcome of this dispute turns on the Debtor’s state of mind at two (2) different points in time. The first is January 2009, when the Mortgage Loan took place, and the second is in the months following the entry of the Injunction on September 25, 2009. For the reasons that follow, I have determined that: • any debt the Debtor may owe arising from her participation in the Mortgage Loan that encumbered the Church Property is dischargeable; • the Debtor knowingly failed to comply with the CP Court Injunction and has not established a defense based on the advice of counsel, rendering the resulting damages suffered by the Synod a debt for “willful and malicious injury” that is nondischargeable under 11 U.S.C. § 523(a)(6). Accordingly, judgment, but only in part, will be entered in favor of the Synod and against the Debtor. II. PROCEDURAL HISTORY The Debtor filed a voluntary" }, { "docid": "17577650", "title": "", "text": "The statutory exceptions to discharge are found in § 523(a). These exceptions are construed strictly against creditors and liberally in favor of debtors. E.g., In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); In re Vidal, 2012 WL 3907847, *15 (Bankr.E.D.Pa. Sept. 7, 2012). A creditor objecting to the dischargeability of a debt bears the burden of proof. Cohn, 54 F.3d at 1113; In re Bittar, 2012 WL 1605160, *2 (Bankr.D.N.J. May 8, 2012). The creditor must establish the nondischargeability of the debt by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re August, 448 B.R. 331, 357 (Bankr.E.D.Pa.2011) (citations omitted). Section 523(a)(6) specifically excepts from discharge any debt for \"willful and malicious injury by the debtor to another entity or to the property of another entity.\" 11 U.S.C. § 523(a)(6). To invoke the 523(a)(6) exception, the creditor must prove not only that injury has resulted, but also that the debtor's conduct was both \"willful\" and \"malicious.\" E.g., In re Vepun, 2009 WL 2921305, at *8 (Bankr.E.D.Pa. Mar. 25, 2009). A \"willful\" injury is an injury that is done deliberately or intentionally. In re Coley, 433 B.R. 476, 497 (Bankr.E.D.Pa.2010) (citing Kawaauhan v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (U.S.1998)). In Geiger, the Supreme Court clarified that § 523(a)(6) does not encompass reckless acts that lead to injury: The word “willful” in (a)(6) modifies the word “injury,” indicating that nondis-chargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead “willful acts that cause injury.” Or, Congress might have selected an additional word or words, i.e., “reckless” or “negligent,” to modify “injury.” [T]he (a)(6) formulation triggers in the lawyer’s mind the category “intentional torts,” as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend “the consequences of an act,” not simply “the act itself.” 523 U.S. at 61-62, 118 S.Ct. 974. In the Third Circuit," }, { "docid": "6678053", "title": "", "text": "that, in early 2000, they had conversations regarding the equipment ownership issue. Both testified that they discussed the fact that the shareholders of Mau Farms, Inc. were in the process of dividing the corporation and the equipment on the equipment lists. Additionally, Defendant advised Mr. Stroup that he would be the sole shareholder of Mau Farms, Inc. and would “be running everything through the corporation” as he proceeded with the 2000 crop year. On April 12, 2000, Plaintiff and Mau Farms, Inc. entered into a line of credit note and security agreement in the amount of $200,000. Said line of credit note and security agreement was co-signed by Defendant. On September 25, 2000, Plaintiff entered into a line of credit note and security agreement with Mau Farms, Inc. in the principal amount of $200,000. Said line of credit note and security agreement was cosigned by Defendant. On January 29, 2002, Defendant filed his voluntary Chapter '7 petition in bankruptcy. On the same date, Mau Farms, Inc. also filed a Chapter 7 petition in bankruptcy. According to Plaintiff, as of March 31, 2003, Defendant was indebted to Plaintiff on the April and September, 2000, notes in the amount of $206,018.46 plus $50,436.28 in interest. Ón May 10, 2002, Plaintiff filed a Complaint to Determine Dischargeability of Debt. The Complaint was amended on December 3, 2002. The Amended Complaint is in two counts. Count I is filed pursuant to 11 U.S.C. § 523(a)(2)(A). Count II is filed pursuant to 11 U.S.C. § 523(a)(6). Section 523(a)(6) of the Bankruptcy Code provides: (a) A discharge under section 727... of this title does not discharge an individual debtor from any debb- (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). In order to be entitled to a determination of nondischargeability under § 523(a)(6), a plaintiff must prove three elements by a preponderance of the evidence: (1) that the defendant caused an injury; (2) that the defendant’s actions were willful, and (3) that the defendant’s actions were malicious. In re Carlson, 224" }, { "docid": "3920159", "title": "", "text": "Transportation, 487 F.3d 556, 563 (6th Cir.2006). 11 U.S.C. § 523 identifies certain types of debt that are exceptions to discharge. At issue in this proceeding are subsections (a)(2)(A), (4) and (6), which state the following. (а) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (б) for willful and malicious injury by the debtor to another entity or to the property of another entity; Pursuant to Federal Rule of Bankruptcy Procedure 4005, in a trial on a complaint objecting to a discharge, the plaintiff has the burden of proving that a discharge is unwarranted. The party seeking to have a debt declared nondis-chargeable bears the burden of proving by a preponderance of the evidence that the debt falls within one of the statutory exceptions. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755(1991). Federal Rule of Bankruptcy Procedure 4007 identifies the procedural requirements for determination of dischargeability of a debt. There are three exceptions to discharge pursuant to § 523 that require a creditor to file a complaint to determine dischargeability — subsections (a)(2), (4), and (6). In re Everly, 346 B.R. 791, 796 (8th Cir. BAP 2006). Such a creditor must file a complaint under Fed R. Bankr.P. 4007(c) to determine dis-chargeability no later than sixty (60) days after the first date set for the meeting of creditors. Fed. R. Bankr.P. 4007(c); Id. A failure to timely file such a complaint will result in the discharge of those debts. Id. In the present case, Plaintiffs timely filed their complaint to determine dis-chargeability on September 5, 2006, within sixty (60) days of the first date set for the meeting of creditors on July 11, 2006. Section 523(a)(2)(A) provides, in" }, { "docid": "4532736", "title": "", "text": "In re Coley, 433 B.R. 476, 497 (Bankr.E.D.Pa.2010); see also In re DiGiovanni, 446 B.R. 709, 716 n. 8 (Bankr.E.D.Pa.2011) (discussing analytic difficulties in construing term “willful and malicious” under existing case law), aff'd 2011 WL 4359990 (E.D.Pa. Sept. 16, 2011). Cf. In re Williams, 337 F.3d 504, 509 (5th Cir.2003) (condensing “willful and malicious” into a single inquiry). The term “willful” refers to a deliberate or intentional injury, not just a deliberate or intentional act that leads to injury. E.g., Coley, 433 B.R. at 497 (citing Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998)). The plaintiff must establish that the debtor “purposefully inflict[ed] the injury or act[ed] in such a manner that he is substantially certain that injury will result.” In re Singer, 2010 WL 3732944, at *5 (D.N.J. Sept. 17, 2010) (citing In re Conte, 33 F.3d 303, 305 (3d Cir.1994)). In Conte, the Third Circuit did not expressly resolve an important issue: whether the “substantial certainty of producing injury” standard is measured objectively (ie., whether there was an objective, substantial certainty of the injury resulting as a consequence of the debtor’s deliberate action, that would have been known by a reasonable person) or whether it is measured subjectively (ie., the debtor was aware that the injury was a substantially certain consequence of the deliberate conduct). See In re Conner, 302 B.R. 509, 514 (Bankr.W.D.Pa.2003) (dictum). Most of the courts in this Circuit that have considered the issue have held that Conte mandates application of the subjective standard. See In re Adalian, 481 B.R. 290, 292 (Bankr.M.D.Pa.2012); In re Glenn, 470 B.R. 731, 736 (Bankr.M.D.Pa. 2012); In re Benun, 386 B.R. 59, 77 (Bankr.D.N.J.2008); see also August, 448 B.R. at 358 (quoting In re Su, 290 F.3d 1140, 1144 (9th Cir.2002)) (§ 523(a)(6) renders a debt nondischargeable “when there is either a subjective intent to harm, or a subjective belief that harm was substantially certain”). But see In re Reath, 368 B.R. 415, 426 (Bankr.D.N.J.2006) (dictum); In re Conner, 302 B.R. 509, 515 n. 4 (Bankr.W.D.Pa.2003) (dictum). “Malice” refers to actions that are" }, { "docid": "6678054", "title": "", "text": "to Plaintiff, as of March 31, 2003, Defendant was indebted to Plaintiff on the April and September, 2000, notes in the amount of $206,018.46 plus $50,436.28 in interest. Ón May 10, 2002, Plaintiff filed a Complaint to Determine Dischargeability of Debt. The Complaint was amended on December 3, 2002. The Amended Complaint is in two counts. Count I is filed pursuant to 11 U.S.C. § 523(a)(2)(A). Count II is filed pursuant to 11 U.S.C. § 523(a)(6). Section 523(a)(6) of the Bankruptcy Code provides: (a) A discharge under section 727... of this title does not discharge an individual debtor from any debb- (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). In order to be entitled to a determination of nondischargeability under § 523(a)(6), a plaintiff must prove three elements by a preponderance of the evidence: (1) that the defendant caused an injury; (2) that the defendant’s actions were willful, and (3) that the defendant’s actions were malicious. In re Carlson, 224 B.R. 659, 662 (Bankr.N.D.Ill.1998) (citation omitted), aff'd 2000 WL 226706 (N.D.Ill.2000), aff'd 2001 WL 1313652 (7th Cir.2001). ‘Willful” means intent to cause injury, not merely the commission of an intentional act that leads to injury. Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Under Geiger, to prove nondischargeability of a debt under § 523(a)(6), a plaintiff must show that the defendant actually intended to harm him and not merely that the defendant acted intentionally and he was thus harmed. Id. at 61-62, 118 S.Ct. 974. The defendant must have intended the consequences of his act. Id. Injuries either negligently or recklessly inflicted to not come within the scope, of § 523(a)(6). Id. at 64, 118 S.Ct. 974. The Supreme Court did not define the scope of the term “intent” utilized to describe willful conduct. Subsequent decisions, however, have required either a showing of subjective intent to injure the creditor or a showing of a debtor’s subjective knowledge that injury is substantially certain to result from his acts to establish the" }, { "docid": "20274696", "title": "", "text": "in the complaint, which were admitted in the answer, are uncontested. The procedural and factual history was outlined in the Court’s previous memorandum, dated June 11, 2009. Debtors Richard Blackburn and Victoria Blackburn (“Debtors”) filed a voluntary Chapter 13 bankruptcy petition on April 3, 2007. The meeting of creditors, pursuant to 11 U.S.C. § 341, was held on May 2, 2007 and objections to discharge were due by July 2, 2007, which was subsequently extended to August 17, 2007 by the Court’s order. Plaintiffs served subpoenas to third-parties, accountants Charles J. Motl & Associates and attorney Thomas Young, as well as LegalZoom.com, Inc. for examination and documents, pursuant to Bankruptcy Rule 2004, and, in orders dated May 24, 2007, the Court granted Plaintiffs request for Rule 2004 discovery. On August 14, 2007, Plaintiffs filed adversary complaint number 07-A-00796 to object to Debtors’ discharge under five counts, pursuant to 11 U.S.C. §§ 523(a)(4), (a)(6). In Count I, Muscarello, acting derivatively on behalf of ECRM, sought recovery of a non-dischargeable judgment against Debtors, pursuant to section 523(a)(6), for willful and malicious injury to property. In Count II, Muscarello, acting derivatively on behalf of ECRM, sought recovery of a non-dischargeable judgment against Debtors, pursuant to section 523(a)(4), for fraud or defalcation while acting in a fiduciary capacity. In Count III, Muscarello, acting derivatively on be half of ECRM, sought recovery of a non-dischargeable judgment against Debtors, pursuant to section 523(a)(4) for larceny. In Count IV, Musearello, acting individually, sought recovery of a nondischargeable judgment against Debtors, pursuant to section 523(a)(6), for willful and malicious injury to property. In Count V, Musearel-lo, acting individually, sought recovery of a nondischargeable judgment against Debtors, pursuant to section 523(a)(4), for fraud and defalcation while acting in a fiduciary capacity. Debtors filed an answer on October 5, 2007. Debtors’ modified Chapter 13 plan, filed September 6, 2007, was confirmed on September 10, 2007 and provided 100% payments to unsecured creditors over sixty (60) months. The order dated September 10, 2007 that confirmed Debtors’ plan was vacated on September 20, 2007. Regarding Plaintiffs’ § 523 adversary complaint, the Court" }, { "docid": "14541405", "title": "", "text": "MEMORANDUM DECISION ROBERT D. MARTIN, Bankruptcy Judge. This unusual case asks a bankruptcy court to determine whether an assault (possibly a sexual assault or rape) and a wrongful death (possibly a murder) were the willful and intentional acts of the debt- or, and, whether claims arising from the injuries are dischargeable in the debtor’s bankruptcy. Because no liability for the alleged acts has yet been determined and no damages assessed, this opinion and the decision it explains is to some degree advisory. This court lacks the jurisdiction, or at least the power and authority, to quantify any obligation arising from the debtor’s acts. Those claims are determinations of state law alone. However, a determination that those claims are dischargeable would render any further pursuit of the claims a violation of the injunction under 11 U.S.C. § 524. The plaintiffs have alleged that the debt- or, as a host of an underage drinking party, and as a participant with others in a sexual assault and battery, willfully and maliciously injured Ashley Johnson, one of the under-aged drinkers at the party. The alleged victim did not survive an automobile accident which happened within minutes after she left the drinking party. The defense acknowledges that the claims and the evidence might support a finding of negligence but deny that the injuries to Ashley Johnson were willful or malicious. This matter was tried to the Court on December 6, 7 and 19, 2012; the plaintiffs were represented by Joseph F. Owens and Eliza M. Reyes and the defendant was represented by Vincent J. Guerrero and Jeffery D. Nordholm; the evidence has been closed; and the parties have made closing arguments; so, I make the following: FINDINGS OF FACT 1. Debtor Andrew J. Weihert filed a voluntary Chapter 7 petition on February 23, 2012. 2. Plaintiffs Patricia A. Johnson and Del Johnson filed a complaint against the debtor on May 24, 2012. The plaintiffs are the parents of Ashley Johnson. Then-claims arise out of the circumstances immediately preceding her death on the morning of July 17, 2010. Patricia John son filed both in her individual" }, { "docid": "17577640", "title": "", "text": "the Debtor’s conduct was wrongful and whether she purposefully inflicted the injury or acted in such a manner that she was substantially certain that injury would result. See In re Singer, 2010 WL 3732944, at *5 (D.N.J. Sept. 17, 2010) (citing In re Conte, 33 F.3d 303, 305 (3d Cir.1994)). Based on the evidence presented at trial, I find, by a preponderance of the evidence, that: the Debtor’s appropriation of the sale proceeds was wrongful; she caused a willful and malicious injury to the Plaintiffs property rights; and the debt to the Plaintiff arising therefrom is nondischargeable under § 523(a)(6). II. PROCEDURAL HISTORY The Debtor filed her chapter 7 bankruptcy petition on December 23, 2011. The § 341 meeting of creditors was set for January 25, 2012. Thus, the deadline for filing objections to discharge or discharge-ability was March 26, 2012. See Fed. R. Bankr.P. 4007(c). The Plaintiff filed a complaint in the main bankruptcy case entitled “Third Party Complaint” on March 26, 2012. (Ex. P-2). On April 13, 2013, the Plaintiff initiated this adversary proceeding by filing the same complaint (“the Complaint”). (Ex. D-5). In the preamble to the Complaint, the Plaintiff asserted an objection to the Debt- or’s discharge under § 727(a) in the Complaint. (Ex. D-5). In the numbered counts of her Complaint, however, the Plaintiff cited only to § 523(a)(2) and (a)(6). (Id.). The Debtor filed a motion to dismiss the Complaint, listing numerous deficiencies, including legal insufficiency and lack of service of process. The parties settled the motion by allowing the Plaintiff leave to file an amended complaint. The Plaintiff filed an amended complaint (“the Amended Complaint”) on July 12, 2012, (Doc. #8), asserting claims under 11 U.S.C. § 727(a)(2), (a)(3) and (a)(5). The Debtor filed her Answer to the Amended Complaint on June 18, 2012. (Doc. # 10). Trial of this adversary proceeding was held on February 1, 2013. At the conclusion of the trial, the Plaintiff abandoned her objections to the Debtor’s discharge under § 727(a). (N.T. 10:53:41). The parties agreed, however, to permit the Plaintiff to amend her Amended Complaint orally to" } ]

[ { "docid": "22134632", "title": "", "text": "read literally, is not restrictive.” Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 162 (1995). This reading of §2 and § 43(a) is buttressed by a recently added subsection of § 43(a), § 43(a)(3), which refers specifically to “civil action[s] for trade dress infringement under this chapter for trade dress not registered on the principal register.” 15 U. S. C. § 1125(a)(3) (1994 ed., Supp. V). The text of § 43(a) provides little guidance as to the circumstances under which unregistered trade dress may be protected. It does require that a producer show that the allegedly infringing feature is not “functional,” see §43 (a)(3), and is likely to cause confusion with the product for which protection is sought, see § 43(a)(1)(A), 15 U. S. C. § 1125(a)(1)(A). Nothing in § 43(a) explicitly requires a producer to show that its trade dress is distinctive, but courts have universally imposed that requirement, since without distinctiveness the trade dress would not “cause confusion ... as to the origin, sponsorship, or approval of [the] goods,” as the section requires. Distinctiveness is, moreover, an explicit prerequisite for registration of trade dress under § 2, and “the general principles qualifying a mark for registration under §2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 768 (1992) (citations omitted). In evaluating the distinctiveness of a mark under § 2 (and therefore, by analogy, under § 43(a)), courts have held that a mark can be distinctive in one of two ways. First, a mark is inherently distinctive if “[its] intrinsic nature serves to identify a particular source.” Ibid. In the context of word marks, courts have applied the now-classic test originally formulated by Judge Friendly, in which word marks that are “arbitrary” (“Camel” cigarettes), “fanciful” (“Kodak” film), or “suggestive” (“Tide” laundry detergent) are held to be inher ently distinctive. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 P. 2d 4, 10-11 (CA2 1976). Second, a mark has acquired" } ]

[ { "docid": "6072094", "title": "", "text": "Products mark into the balance of factors, we conclude that a reasonable jury could return a verdict for Marianna. Although the dissimilarities between the marks favor Beautyco, that factor alone is not dispositive. “It is certainly not necessary to use an exact copy of another’s mark for a reasonable buyer to be likely to be confused.” McCarthy on Trademarks § 23.20. Because Marian-na has demonstrated a genuine issue of material fact on the likelihood of confusion, the district court erred in granting summary judgment to Beautyco. B. Trade Dress Infringement The trade dress of a product is its overall image and appearance, and may include features such as size, shape, color or color combinations, texture, graphics, and even particular sales techniques. Two Pesos, 505 U.S. at 764 n. 1, 112 S.Ct. 2753 (quotation omitted). Under § 43(a) of the Lanham Act, a plaintiff has a cause of action against any person whose use of a word, symbol, or device is likely to cause confusion regarding the source or origin of the plaintiffs goods. See 15 U.S.G. § 1125(a)(1)(A); Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 209, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). Protection may extend to a single feature or a combination of features in a trade dress. See Vornado Air Circulation Sys., Inc. v. Duracraft Corp., 58 F.3d 1498, 1502 (10th Cir.1995). In order to demonstrate trade dress infringement for product packaging, the plaintiff must demonstrate (1) that its trade dress is inherently distinctive or has become distinctive through secondary meaning; and (2) likelihood of confusion. See id. at 1502-03. In addition, the party asserting trade dress infringement bears the burden of demonstrating that the trade dress is not functional. 15 U.S.C. § 1125(a)(3); Samara Bros., 529 U.S. at 210, 120 S.Ct. 1339. 1. Distinctiveness and Secondary Meaning A trade dress is inherently distinctive if its “intrinsic nature serves to identify a particular source.” Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753. Such trade dresses “almost automatically tell a customer that they refer to a brand and immediately signal a brand or a product source.”" }, { "docid": "14886892", "title": "", "text": "$3.50 to $7.00); CSC Brands LP, 191 F.Supp.2d at 1152 (“Given that these bev erages are sold in supermarkets and are low cost, the degree of care likely to be exercised by purchasers is minimal.”); K-Swiss, Inc., 291 F.Supp.2d at 1125 (reasonable consumer unlikely to exercise high degree of care in selecting tennis shoes). As such, this final factor also favors a finding of likelihood of confusion. In sum, the court finds that, on balance, application of the Sleekcraft factors demonstrates that plaintiff is likely to be able to show that VPX is using a confusingly similar mark. Accordingly, plaintiff has demonstrated a likelihood of success on the merits of its trademark infringement claim. B. Trade Dress Infringement “A seller’s adoption of a trade dress confusingly similar to a competitor’s constitutes unfair competition that is actionable under section 43(a) of the Lanham Act.” Vision Sports, Inc. v. Melville, Corp., 888 F.2d 609, 613 (9th Cir.1989). “Trade dress protection is broader in scope than trademark protection, both because it protects aspects of packaging and product design that cannot be registered for trademark protection and because evaluation of trade dress infringement claims requires the court to focus on the plaintiffs entire selling image, rather than the narrower single facet of trademark.” Id. More specifically, “[t]rade dress refers generally to the total image, design, and appearance of a product and ‘may include features such as size, shape, color, color combinations, texture or graphics.’ ” Clicks Billiards v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.2001) (quoting Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993)). To sustain a claim for trade dress infringement, a plaintiff must prove: “(1) that its claimed dress is nonfunctional; (2) that its claimed dress serves a source-identifying role either because it is inherently distinctive or has acquired secondary meaning; and (3) that the defendant’s product or service creates a likelihood of consumer confusion.” Clicks, 251 F.3d at 1258 (internal footnotes omitted). 1. Functionality Trade dress protection extends only to design features that are nonfunc tional. As the Supreme Court explained, “A product feature is" }, { "docid": "23221181", "title": "", "text": "Inc. v. K Mart Corp., 754 F.2d 71, 79 (2d Cir.1985). We review a decision denying a preliminary injunction “for an abuse of discretion which, when found, usually consists of the application of an incorrect legal standard or the reliance on clearly erroneous findings of fact.” Chemical Bank v. Haseotes, 13 F.3d 569, 573 (2d Cir.1994). B. Lanham Act Claim Section 43(a) of the Lanham Act, “[t]hough enacted as part of the Trademark Act, ... functions as a federal law of unfair competition for unregistered goods ... [and] extends protection to a product’s ‘trade dress.’ ” Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 168 (2d Cir.1991). It provides a cause of action against any person who “in connection with any goods ... or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof ... which ... is likely to cause confusion, or to cause mistake, or to deceive ... as to the origin, sponsorship, or approval of his or her goods ... by another person.” 15 U.S.C. § 1125(a) (1988). At one time, “trade dress” referred only to the manner in which a product was “dressed up” to go to market with a label, package, display card, and similar packaging elements. However, “trade dress” has taken on a more expansive meaning and includes the design and appearance of the product as well as that of the container and all elements making up the total visual image by which the product is presented to customers. See LeSportsac, 754 F.2d at 75. Thus, trade dress is “essentially [a product’s] total image and overall appearance,” Two Pesos, — U.S. at - n. 1, 112 S.Ct. at 2755 n. 1, “as defined by its overall composition and design, including size, shape, color, texture, and graphics.” AnnTaylor, 933 F.2d at 168. To prevail in an action for trade dress infringement under section 43(a) of the Lanham Act, a plaintiff must prove (1) that its dress is distinctive and (2) that a likelihood of confusion exists between its product and the defendant’s product. See Two Pesos," }, { "docid": "8777113", "title": "", "text": "event, Plaintiffs concede that there is insufficient evidence of the amount of time Brenner spent working on her book, and seek to have the Court award Brenner $1 for Belliard’s alleged conversion of her book, in addition to punitive damages based upon this award of nominal compensatory damages. Punitive damages for this conduct, however, have already been awarded against Belliard in connection with the Court’s finding that he breached his duty of loyalty to Pure Power. To further award punitive damages for conversion would be redundant and excessive. Accordingly, the Court concludes that Plaintiffs are not entitled to damages for conversion of either Pure Power’s business materials, including its client list, or Brenner’s alleged manuscript. VIII. Trade Dress Infringement Plaintiffs allege that “Defendants have willfully copied and employed the distinctive ‘look and feel’ of Pure Power in their own facility and are in violation of Section 43(a) of the Lanham Trademark Act.” (Second Am. Compl. ¶ 96.) Defendants respond that: (1) Plaintiffs do not have a protectable trade dress; (2) Warrior Fitness did not copy Pure Power’s look and feel in any way that could cause confusion; and (3) there is neither a likelihood of confusion, nor is there evidence that there has been any actual confusion. Section 43(a) of the Lanham Act, which protects unregistered trademarks, also extends protection to trade dress. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209, 120 S.Ct. 1339, 1342, 146 L.Ed.2d 182 (2000). The term “trade dress” has a broad meaning and is defined as the “total image” of a business, good, or service “as defined by its overall composition and design, including size, shape, color, texture, and graphics.” Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 115 (2d Cir.2006) (citation and quotation marks omitted). To succeed on a claim of trade dress infringement under Section 43(a), Plaintiffs must show: (1) that their trade dress is either “inherently distinctive,” or that it has acquired distinctiveness through “secondary meaning,” although an inherently distinctive trade dress is entitled to protection only if it is also nonfunctional; and (2) that" }, { "docid": "8777112", "title": "", "text": "cannot be properly said to have converted Pure Power’s business materials, including its client list. Moreover, the Court concludes that Plaintiffs have not demonstrated, by a preponderance of the evidence, that either Fell or Belliard stole a manuscript for a book entitled “Unleash the Warrior Goddess Within” from Brenner’s office at Pure Power. Plaintiffs failed to identify, with reasonable precision, the property allegedly converted by Defendants; at different times throughout the course of this litigation they referred to the stolen property as “a book,” a “transcript of a book,” or “handwritten notes” for a book. Indeed, Brenner’s trial testimony on this issue was confusing, and Plaintiffs introduced no evidence, either at Brenner’s deposition or at trial to support her contention that she had, in fact, completed a draft of this book; for instance, no earlier drafts of the book or the corroborating testimony of others to whom she may have showed, or at the very least, with whom she might have discussed this book and its progress, were offered into evidence at trial. In any event, Plaintiffs concede that there is insufficient evidence of the amount of time Brenner spent working on her book, and seek to have the Court award Brenner $1 for Belliard’s alleged conversion of her book, in addition to punitive damages based upon this award of nominal compensatory damages. Punitive damages for this conduct, however, have already been awarded against Belliard in connection with the Court’s finding that he breached his duty of loyalty to Pure Power. To further award punitive damages for conversion would be redundant and excessive. Accordingly, the Court concludes that Plaintiffs are not entitled to damages for conversion of either Pure Power’s business materials, including its client list, or Brenner’s alleged manuscript. VIII. Trade Dress Infringement Plaintiffs allege that “Defendants have willfully copied and employed the distinctive ‘look and feel’ of Pure Power in their own facility and are in violation of Section 43(a) of the Lanham Trademark Act.” (Second Am. Compl. ¶ 96.) Defendants respond that: (1) Plaintiffs do not have a protectable trade dress; (2) Warrior Fitness did not copy" }, { "docid": "18463524", "title": "", "text": "simplified skin care.” Clinique has alleged only the harm to its reputation that might result from its inability to control the quality of Basique. In the marks’ present state, however, consumers are unlikely to confuse them; they are even less likely to confuse the marks when Dep’s mark is used without the “b” and with different trade dress. Clinique presented no evidence that repackaged Basique products would lead to any likelihood of consumer confusion. . Clinique therefore will not suffer the alleged harm to its reputation. As Clinique has not shown irreparable harm, I need not consider whether the balance of hardships tips decidedly in Clinique’s favor with respect to this mark. 3. Trade Dress Infringement under Section 43(a) of the Lanham Act To prevail on its trade dress claim under Section 43(a) Clinique must show (1) that its trade dress is distinctive, and (2) a likelihood of confusion between its trade dress and Dep’s. See Paddington, 996 F.2d at 582. Trade dress is subject to protection if it is inherently distinctive, or if it has acquired secondary meaning among the consuming public. Id. The distinctiveness of trade dress is divided into four categories, from least to most distinctive: 1) generic; 2) descriptive; 3) suggestive; or 4) arbitrary and fanciful. Id. at 583; Abercrombie, 537 F.2d at 9. Arbitrary and fanciful-trade dress is considered to be inherently distinctive, and is subject to protection without further proof of secondary meaning. Paddington, 996 F.2d at 583. The trade dress of a product comprises its “total image and overall appearance” and involves the total image of a product and may include features such as size, shape, color, texture [or] graphics____” Taco Cabana, 505 U.S. at 765, n. 1, 112 S.Ct. at 2755, n. 1 (quoting John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir. 1983)). Trade dress typically will be arbitrary and fanciful, and thus inherently distinctive, because of the virtually unlimited choices a producer has for advertising and packaging its product. Paddington, 996 F.2d at 583. As with composite trademarks, the court should focus not on individual" }, { "docid": "15816460", "title": "", "text": "of thumb, consumers are expected to be more discerning and less easily confused when the products in question are expensive items. Id. at 1060. The plaintiffs vehicles and defendants’ kits are big ticket items. Defendants’ kits sell for over $10,000, and plaintiffs are considerably more. Accordingly, it is likely that consumers will be able to discern that they are dealing with two separate products marketed by separate parties. The remaining three factors, evidence of actual confusion, marketing channels used, and likelihood of expansion, have not been briefed by the parties and a quick study of them indicates that they are minor considerations and do not appear to tip heavily in favor of either side. In sum, there appears to be a danger of likelihood of confusion since it appears that plaintiffs marks are fanciful, that the parties’ marks are almost identical, that the goods are related, and that defendants intended to copy plaintiffs marks. c. Trade Dress Infringement, 15 U.S.C. § 1125(a) Plaintiff also claims that defendants’ actions constitute trade dress infringement under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). (Compl.(#2) ¶¶ 42-47.) Trade dress is defined as “the ‘total image of a product’ and may include features such as size, shape, color, color combinations, texture or graphics.” International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993) (quoting Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 613 (9th Cir.1989)). Plaintiff alleges a trade dress in the “inherently distinctive” shape of their vehicles, and in the alternative that the vehicles’ shape has acquired secondary meaning. According to plaintiff, defendants have incorporated plaintiffs trade dress into the features of their car kits. A party’s adoption of a trade dress confusingly similar to another’s may be actionable under § 43(a). A three part test has evolved for evaluating whether a trade dress is protected under this statute: (1) whether the trade dress is inherently distinctive or has acquired distinctiveness through secondary meaning; (2) whether the trade dress is not functional; and (3) whether there is any likelihood of confusion between a party’s trade dress and" }, { "docid": "14450446", "title": "", "text": "inherently distinctive or has acquired distinctiveness through secondary meaning; (2) that there is a likelihood of confusion between its trade dress and the defendant’s; and (3) that the trade dress is non-functional. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769-70, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); see also Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 115 (2d Cir.2006). If a plaintiff offers no evidence of a. protectable interest, a court need not consider likelihood of confusion. See Thompson Med. Co. v. Pfizer, Inc., 753 F.2d 208, 217 (2d Cir.1985). In addition, a Lanham Act claimant must describe its protectable interest with some clarity — it must offer “a precise expression of the character and scope of the claimed trade dress.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 117 (2d Cir.2001) (citation and quotation omitted). Inherent distinctiveness is evaluated as follows: [T]rade dress is classified on a spectrum of increasing distinctiveness as generic, descriptive, suggestive, or arbitrary/fanciful. Suggestive and arbitrary or fanciful trade dress are deemed inherently distinctive and thus always satisfy the first prong of the test for protection. A descriptive trade dress may be found inherently distinctive if the plaintiff establishes that its mark has acquired secondary meaning giving it distinctiveness to the consumer. A generic trade dress receives no Lanham Act protection. Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999-1000 (2d Cir.1997) (citing Two Pesos, 505 U.S. at 769-70, 112 S.Ct. 2753). With respect to distinctiveness, BBW argues that Summit’s trade dress is not inherently distinctive and has not acquired secondary meaning. BBW Mem. at 37-40. BBW claims that the Luna Twilight product packaging “is the custom in a particular industry” and that the trade dress “is commonplace use.” Id. at 38, citing Mana Prods., Inc. v. Columbia Cosmetics Mfg., Inc., 65 F.3d 1063, 1069-70 (2d Cir.1995) (size, shape and color of make-up compact not inherently distinctive because features were common characteristics of cosmetics packaging). Further, BBW claims that Summit “effectively claims to own the idea of using public domain images of trees on" }, { "docid": "2299948", "title": "", "text": "1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition §§ 1:1; 2:1 (4th ed.1997). With respect to the federal law of unfair competition, Section 43(a)(1) of the Lanham Act provides protection for unregistered trademarks and trade dress by holding liable in a civil action: Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person____ 15 U.S.C. § 1125(a)(1)(A). This Section provides a statutory remedy to a party injured by a competitor’s “false designation of origin” of its product, whether or not the party has secured a federally registered trademark. See L. & J.G. Stickley, Inc. v. Canal Dover Furniture Co., 79 F.3d 258, 262 (2d Cir.1996). Protection under this provision extends not only to the name of the product at issue, but may also extend to the product’s “trade dress” which involves the total image and overall appearance of the good. Compare Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 168 (2d Cir.1991) (“Section 43(a) extends protection to a product’s ‘trade dress’ — the total image of a good as defined by its overall composition and design, including size, shape, color, texture, and graphics.”), with Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 380 (2d Cir.1997) (“courts have exercised particular ‘caution’ when extending protection to product designs”). To prevail in an action for trade dress infringement under § 43(a) of the Lan-ham Act, a plaintiff must demonstrate that (1) its trade dress is distinctive and (2) there exists a likelihood of confusion between its product and the alleged infringer’s product. See Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d" }, { "docid": "9796773", "title": "", "text": "with business relations because there was no underlying illegal act by Hampshire Paper. II DISCUSSION A. Trade Dress Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which prohibits in- fringement of trademarks, also protects trade dress. “ ‘Trade dress’ refers to the total image of a product, including features such as ‘size, shape, color or color combinations, texture, graphics, or even particular sales techniques.’ ” Roulo v. Russ Berrie & Co., 886 F.2d 931, 935 (7th Cir.1989) (quoting John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir.1983)), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124 (1990). In this case, Syndicate Sales seeks protection of the configuration of its baskets, which is a form of trade dress. This court has previously explained how a plaintiff may establish a trade dress claim under § 43(a) of the Lanham Act: In order to prevail on a claim of trade dress infringement, a plaintiff must show that 1) its trade dress is either inherently distinctive or has acquired secondary meaning, and 2) that the similarity of the defendant’s trade dress causes a likelihood of confusion on the part of consumers as to the source or affiliation of the products. Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 277, 291 (7th Cir.), cert. denied, — U.S. —, 119 S.Ct. 336, 142 L.Ed.2d 277 (1998). We shall focus here on the second of these criteria — the likelihood of confusion regarding the source of the baskets. Our prior case law provides guidance on this issue: A number of factors must be examined when determining if a likelihood of confusion exists between the trade dresses of two products. These include: 1) the similarity of the trade dresses; 2) the area and manner of concurrent use; 3) the degree of care likely to be used by consumers; 4) the strength of the plaintiffs trade dress; 5) actual confusion; and 6) intent of the defendant to pass off its product as that of the plaintiff.... [N]one of these factors considered alone is dispositive, and the weight to be accorded each varies" }, { "docid": "474864", "title": "", "text": "LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 75 (2d Cir.1985). Trade dress is a complex composite of features. One may be size, another may be color or color combinations, another may be texture, another may be graphics and arrangement and so on. Trade dress is a term reflecting the overall general impact, usually visual, but sometimes also tactile, of all these features taken together. SK & F Co. v. Premo Pharmaceutical Laboratories, Inc., 481 F.Supp. 1184, 1187 (D.N.J.1979), aff'd, 625 F.2d 1055 (3d Cir.1980); accord Fuddruckers, Inc. v. Doc’s B.R. Others, Inc., 826 F.2d 837, 841 (9th Cir.1987) (total visual image); Clarke Checks, 711 F.2d at 980; Harlequin Enterprises Ltd. v. Gulf & Western Corp., 503 F.Supp. 647, 648-49 (S.D.N.Y.1980) (product design and format, words, symbols, collection of colors and designs). The district court described Blue Mountain’s trade dress as a combination of some or all of ten features listed above, which produces an overall uniform look and distinctive appearance of Blue Mountain’s “AireBrush Feelings” and “WaterColor Feelings” lines of cards. A product’s trade dress is eligible for protection under section 43(a) if it is so distinctive as to become, in effect, an unregistered trademark. Brunswick, 832 F.2d at 516-17. For a plaintiff to establish unprivileged imitation, prevail on a trade dress infringement claim, and thus prevent copying of the appearance of a product, (1) the trade dress, whether a single feature or a combination of features, must be nonfunctional; (2) the trade dress must have acquired a secondary meaning; and (3) there must be a likelihood of confusion among consumers as to the source of the competing products. Brunswick, 832 F.2d at 517. In considering the merits of Blue Mountain’s trade dress infringement claim for purposes of determining Blue Mountain’s likelihood of success on the merits, the district court determined that the overall appearance or arrangement of features, i.e., the trade dress, of Blue Mountain’s “AireBrush Feelings” and “WaterColor Feelings” lines of greeting cards was nonfunctional and had acquired a secondary meaning. The district court further determined that there was a likelihood of confusion among card purchasers" }, { "docid": "15816461", "title": "", "text": "of the Lanham Act, 15 U.S.C. § 1125(a). (Compl.(#2) ¶¶ 42-47.) Trade dress is defined as “the ‘total image of a product’ and may include features such as size, shape, color, color combinations, texture or graphics.” International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993) (quoting Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 613 (9th Cir.1989)). Plaintiff alleges a trade dress in the “inherently distinctive” shape of their vehicles, and in the alternative that the vehicles’ shape has acquired secondary meaning. According to plaintiff, defendants have incorporated plaintiffs trade dress into the features of their car kits. A party’s adoption of a trade dress confusingly similar to another’s may be actionable under § 43(a). A three part test has evolved for evaluating whether a trade dress is protected under this statute: (1) whether the trade dress is inherently distinctive or has acquired distinctiveness through secondary meaning; (2) whether the trade dress is not functional; and (3) whether there is any likelihood of confusion between a party’s trade dress and an alleged infringer’s. Two Pesos, Inc., 505 U.S. at 768-769, 112 S.Ct. 2753. i. Distinctiveness of Plaintiffs Trade Dress With regard to its trade dress claim, plaintiff claims a trade dress in the body shape and appearance of the vehicles and claims it is “inherently distinctive,” or in the alternative, has acquired secondary meaning. Defendants do not challenge this contention in their opposition. Trade dress is protected if it is inherently. distinctive or has acquired secondary meaning. Id. at 768-69, 112 S.Ct. 2753. However, if trade dress is claimed in a product design, .it will only be protected upon a showing of secondary meaning because product design can never be inherently distinctive. Wal-Mart Stores, Inc. v. Samara Bros. Inc., 529 U.S. 205, 216, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). A trade dress is said to have secondary meaning if the purchasing public associates it with a specific producer or source rather than with merely the product; . Factors to consider include the following: (1) whether actual purchasers associate plaintiffs trade dress with its products;" }, { "docid": "2299949", "title": "", "text": "registered trademark. See L. & J.G. Stickley, Inc. v. Canal Dover Furniture Co., 79 F.3d 258, 262 (2d Cir.1996). Protection under this provision extends not only to the name of the product at issue, but may also extend to the product’s “trade dress” which involves the total image and overall appearance of the good. Compare Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 168 (2d Cir.1991) (“Section 43(a) extends protection to a product’s ‘trade dress’ — the total image of a good as defined by its overall composition and design, including size, shape, color, texture, and graphics.”), with Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 380 (2d Cir.1997) (“courts have exercised particular ‘caution’ when extending protection to product designs”). To prevail in an action for trade dress infringement under § 43(a) of the Lan-ham Act, a plaintiff must demonstrate that (1) its trade dress is distinctive and (2) there exists a likelihood of confusion between its product and the alleged infringer’s product. See Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 967 (2d Cir.1995). Functional packaging and product design are not protected under § 43(a) of the Lanham Act, and functionality may be raised as a defense to a trade dress infringement action. See Coach Leatherware Co., 933 F.2d at 171. a. Distinctiveness The threshold issue in the case before us is whether the trade dress of Forschner’s Swiss Army knife, in particular the red color as applied to its multipurpose poeketknife, identifies the particular source of the product or distinguishes it from other products. See Two Pesos, Inc., 505 U.S. at 769,112 S.Ct. at 2757-58. A trade dress may identify the producer in one of two ways: if the good is inherently distinctive or if the product has acquired distinctiveness to the consuming public through a secondary meaning associating the trade dress with the source of the good. See id.; Paddington Corp. v. Attiki Importers & Distribs., Inc., 996 F.2d 577, 582-83 (2d Cir.1993). Under the rubric of inherent distinctiveness, the focus of the inquiry is whether or not the trade dress of a" }, { "docid": "8777114", "title": "", "text": "Pure Power’s look and feel in any way that could cause confusion; and (3) there is neither a likelihood of confusion, nor is there evidence that there has been any actual confusion. Section 43(a) of the Lanham Act, which protects unregistered trademarks, also extends protection to trade dress. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209, 120 S.Ct. 1339, 1342, 146 L.Ed.2d 182 (2000). The term “trade dress” has a broad meaning and is defined as the “total image” of a business, good, or service “as defined by its overall composition and design, including size, shape, color, texture, and graphics.” Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 115 (2d Cir.2006) (citation and quotation marks omitted). To succeed on a claim of trade dress infringement under Section 43(a), Plaintiffs must show: (1) that their trade dress is either “inherently distinctive,” or that it has acquired distinctiveness through “secondary meaning,” although an inherently distinctive trade dress is entitled to protection only if it is also nonfunctional; and (2) that there is a “likelihood of confusion” between Defendants’ trade dress and their own. Two Pesos v. Taco Cabana, 505 U.S. 763, 769-70, 112 S.Ct. 2753, 2760, 120 L.Ed.2d 615 (1992); accord Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999 (2d Cir.1997). The standard for assessing the distinctiveness of a product’s trade dress depends on the category of trade dress for which protection is sought. See Fun-Damental Too, 111 F.3d at 999-1000. Trade dress generally falls into one of two categories: product packaging or product design. See id. at 1000. Here, Plaintiffs have not drawn a distinction as to whether their alleged dress is properly classified as product packaging or product design, and have, instead, sought to protect a trade dress that encompasses the layout and interior decor of the Pure Power facility. Although it is difficult to fit a trade dress involving interior decor into one of these two classifications, based on the way Plain tiffs define their trade dress, and the manner in which courts view such cases, the Court concludes" }, { "docid": "10292844", "title": "", "text": "has established a likelihood of success on the merits on its claim of infringement of its marks. IV. FEDERAL LAW: UNFAIR COMPETITION (Trade Dress Infringement) Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), provides: (a)(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. This. statutory provision provides a federal cause of action for unfair competition. Specifically, this provision provides a cause of action for trade dress infringement. See John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir.1983). In John H. Harland Co., the Eleventh Circuit stated: ‘Trade dress’ involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques. Most trade dress infringement actions involve the packaging or labeling of goods____ Recently, however, courts have recognized that the design of a product itself may constitute protectable trade dress under § 43(a) of the Lanham Act. Id. (citations omitted). To prevail on a claim of trademark infringement, a plaintiff must establish three elements: 1) its trade dress is inherently distinctive or has acquired secondary meaning; 2) its trade dress is primarily nonfunctional; and 3) the defendant’s trade dress is confusingly similar. AmBrit, Inc. v. Kraft, Inc., 812" }, { "docid": "14450445", "title": "", "text": "BBW’s failure to proffer any evidence of non-association, the Court finds that this factor favors Summit. In considering all of the dilution factors in this case, the Court concludes that Summit has raised triable issues of fact with regard to whether BBW’s marks are likely to blur the distinctive source of Summit’s Twilight marks. As noted, a reasonable jury could find that the marks are sufficiently similar to warrant the inference that association is likely. Further, Summit’s Twilight marks are inherently distinctive, and Summit has offered evidence that suggests that its marks are of considerable renown. Moreover, Summit has raised important issues of fact with respect to the evidence of actual association between the two marks, as well as whether BBW’s marks were intended to foster associations with Summit’s Twilight marks. Accordingly, summary judgment is denied on Summit’s federal dilution claim. Trade Dress Claims Count Four of Summit’s counterclaims asserts trade dress infringement under 15 U.S.C. § 1125(a). A plaintiff asserting a trade dress infringement claim must demonstrate that: (1) its trade dress is either inherently distinctive or has acquired distinctiveness through secondary meaning; (2) that there is a likelihood of confusion between its trade dress and the defendant’s; and (3) that the trade dress is non-functional. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769-70, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); see also Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 115 (2d Cir.2006). If a plaintiff offers no evidence of a. protectable interest, a court need not consider likelihood of confusion. See Thompson Med. Co. v. Pfizer, Inc., 753 F.2d 208, 217 (2d Cir.1985). In addition, a Lanham Act claimant must describe its protectable interest with some clarity — it must offer “a precise expression of the character and scope of the claimed trade dress.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 117 (2d Cir.2001) (citation and quotation omitted). Inherent distinctiveness is evaluated as follows: [T]rade dress is classified on a spectrum of increasing distinctiveness as generic, descriptive, suggestive, or arbitrary/fanciful. Suggestive and arbitrary or fanciful trade dress are" }, { "docid": "17335860", "title": "", "text": "brightly-colored handbags so long as they do not do so in a manner confusingly similar to the Vuitton combination of color and defined design. With regard to its own trademark, plaintiff asserts that it “cannot dissect the color from the pattern.... [T]he strength of the mark here is ... the synergy between the colors and the [traditional] Louis Vuitton trademarks.” Vuitton does not seek to protect the overall look of its handbags, that is, its trade dress, but rather the narrower trademark it has established in its colored pattern. We have defined trade dress as “the total image of a good as defined by its overall composition and design, including size, shape, color, texture, and graphics.” Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 168 (2d Cir.1991). By way of distinction the Lanham Act defines a trademark as “any word, name, symbol, or device, or any combination thereof’ which is used or intended to be used by a person “in commerce ... to identify and distinguish his or her goods ... from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” 15 U.S.C. § 1127; see also Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 547 (6th Cir.2005) (“[Trademark and trade dress are two distinct concepts under the Lanham Act.”); McCarthy §§ 8:1-8:3 (comparing trademarks and trade dress). Although trade dress and trademarks are both protected by § 43 of the Lanham Act, 15 U.S.C. § 1125(a), the fact that Vuitton seeks only protection of a trademark and not trade dress informs our understanding of the precision of its mark. In “determining whether an unregistered mark is entitled to protection under § 43(a),” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992), “the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable,” id. The breadth of trademarks registrable under § 2, 15 U.S.C. § 1052, is not limited to word marks such as “Nike.”" }, { "docid": "8777144", "title": "", "text": "customers weighs against a finding of a likelihood of confusion. C. Weighing the Polaroid Factors Weighing the various Polaroid factors, the Court finds that Warrior Fitness’s trade dress is not sufficiently similar to Pure Power’s trade dress such that consumers are likely to be confused. The Court finds that the “look and feel” of Pure Power and Warrior Fitness are not confusingly similar, nor is there any meaningful proof of actual confusion among their customers, who are sophisticated and able to distinguish between the two facilities. As the Court has noted, what is most similar is the general concept underlying the operation of two facilities, but this is not protectable as a trade dress. Thus, although Pure Power’s trade dress is strong and designates its source, Plaintiffs have failed to show that Defendants have intentionally copied their distinctive trade dress in a way that is likely to, or actually does, cause confusion among the relevant subset of customers in the marketplace. Accordingly, the Court concludes that Plaintiffs have failed to prove a claim of trade dress infringement. IX. New York General Business Law § 360-l Plaintiffs also bring a claim of dilution of trade dress under New York General Business Law § 360-1 (formerly § 368 — d). Section 360-1 states: Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services. “This section applies with equal force to the protection of trade dress.” Merriam-Webster, Inc. v. Random House, Inc., 35 F.3d 65, 73 (2d Cir.1994). To prevail on this claim, Plaintiff must prove (1) that its trade dress is of “truly distinctive quality” or has acquired “secondary meaning,” and (2) that there is “likelihood of dilution.” Deere, 41 F.3d 39, 42 (2d Cir.1994); accord Fireman’s Ass’n of State of New York v. French Am. Sch. of" }, { "docid": "23000568", "title": "", "text": "basis of federal subject matter jurisdiction. This appeal followed. DISCUSSION I. Trade Dress Infringement Unregistered trademarks and trade dresses are protectable under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which provides a private cause of action against any person who “in connection with any goods ... or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof ... which ... is likely to cause confusion, or to cause mistake, or to deceive ... as to the origin, sponsorship, or approval of his or her goods by another person.” 15 U.S.C. § 1125(a). To prevail in an action for infringement of a trademark or trade dress under Lanham Act § 43(a), a plaintiff must prove (1) that its mark is distinctive and (2) that a likelihood of confusion exists between its product and the defendant’s. Two Pesos, — U.S.-,-, 112 S.Ct. 2753, 2758; Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1038-39 (2d Cir.1992). Additionally, functional packaging and product design are unprotected, and functionality may be raised as a defense to an action for trade dress infringement. LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 75-76 (2d Cir.1985). A. Distinctiveness of the No. 12 Ouzo Trade Dress A product’s trade dress is its “total image ... including] features such as size, shape, color or color combinations, texture, [or] graphics.” Id. at 75 (quoting John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir.1983) (second alteration in original)). Prior to the Supreme Court’s decision in Two Pesos, the Second Circuit required a plaintiff seeking § 43(a) protection of a trade dress to establish distinctiveness by proving secondary meaning. See, e.g., Stormy Clime Ltd. v. ProGroup, Inc., 809 F.2d 971, 974 (2d Cir.1987). If a plaintiff proved secondary meaning, then the plaintiff could recover if it could establish a likelihood of confusion between the two trade dresses. This stood in contrast to our treatment of trademark infringement under § 43(a), where a plaintiff can reach the likelihood-of-confusion issue if the mark either is inherently distinctive or" }, { "docid": "4169250", "title": "", "text": "in a civil action by any person who believes that he or she is or is likely to be damaged by such act. Trade dress is defined as “the ‘total image of a product’ and may include features such as size, shape, color, color combinations, texture or graphics.” International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993) (quoting Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 613 (9th Cir.1989)). Plaintiff alleges the following elements make up their trade dress; the infomercial, the telephone operator script, and the “creative features of the handle design for the knives, the selection of the particular individual knives, and their composition into an arbitrary set.” (Mot. for T.R.O. & Prelim. Inj. (#’s 13/14), at 6-7.) According to plaintiff, defendants have used plaintiffs trade dress in conjunction with selling their own set of knives. (Compl.(# 2) ¶ 55.) A seller’s adoption of a trade dress confusingly similar to another’s may be actionable under § 43(a). A three part test has evolved for evaluating whether a trade dress is protected under this statute: (1) whether the trade dress is inherently distinctive or has acquired distinctiveness through secondary meaning; (2) whether the trade dress is not functional; and (3) whether there is any likelihood of confusion between a party’s trade dress and an alleged infringer’s. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768-769, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). a. Distinctiveness of Miracle Blade’s Trade Dress. Plaintiff maintains that its trade dress is inherently distinctive, and in the alternative, has at least acquired distinctiveness through secondary meaning. (Mot. for T.R.O. & Prelim. Inj. (#’s 13/14), at 24-26.) Defendants contend that plaintiff has not made the requisite showing under either. (Defs.’ Opp’n (# 38), at 15.) The court agrees with defendants. Trademark concepts on distinctiveness are used to evaluate trade dresses. Specifically, trade dresses, as with marks, may be sorted into five categories of increased distinctiveness: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. Two Pesos, Inc., 505 U.S. at 768. Trade dresses that are suggestive, arbitrary" } ]

[ { "docid": "15015089", "title": "", "text": "of the qualffied immunity defense as to the four appellants is before us. We review a district court's denial of summary judgment de novo. Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993). The district court denied qualified immunity in the belief that genuine questions of material fact exist as to whether the vehicle checkpoint itself-in contrast to the alleged misconduct of the officers manning the checkpoint-violated Maxwell's constitutional rights. Appellants are entitled to qualified immunity if either the checkpoint in question did not violate clearly established federal rights, see Harlow v. Fitzgerald 457 U.S. 800, 818, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982), or it was objectively reasonable for defendants to believe their conduct was lawful, see Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). The threshold inquiry is, of course, whether the plaintiff has alleged a constitutional violation at all. See Siegert v. Gilley, 500 U.S. 226, 232, 111 SCt. 1789, 1793, 114 L.Ed.2d 277 (1991); Blue v. Koren, 72 F.3d 1075 (2d Cir.1995). In Michigan Department of State Police `a. Sits, the Supreme Court held that a Fourth Amendment \"`seizure' occurs when a vehicle is stopped at a checkpoint.\" 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990); see also People v. Scott, 63 N.Y.2d 518, 524, 473 N.E.2d 1, 483 N.Y.S.2d 649 (1984) (\"There is ... no question that a roadblock or checkpoint is a seizure within the meaning of the Fourth Amendment.\") The reasonableness of a seizure at a vehicle checkpoint depends upon a balancing of (1) the gravity of the public concerns served by the checkpoint; (ii) the degree to which the checkpoint effectively addresses those concerns; and (iii) the severity of the intrusion upon individual liberty. Sitz, 496 U.S. at 448-49, 110 S.Ct. at 2484-85 (citing Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357 (1979)). We con-elude that, as planned, the Special Operation passed constitutional muster. First, the checkpoints in question served an important public concern in attempting to deter drive-by shootings that" } ]

[ { "docid": "23047979", "title": "", "text": "taking of an appeal alters the situation, for we have also held that reconsideration of a suppression order is permissible even at trial “if the record reveals matters which indicate that the evidence was lawfully obtained.” United States v. Rabb, 752 F.2d 1320, 1323 (9th Cir.1984), cert. denied, 471 U.S. 1019, 105 S.Ct. 2027, 85 L.Ed.2d 308 (1985). We rejected the view espoused in McRae v. United States, 420 F.2d 1283, 1288 (D.C. Cir.1969), that the government should be barred from showing that evidence ought to be admitted at trial even if it did not do so during a previous suppression hearing, if, in the court’s sound discretion, justice will be served. The decision to reconsider a suppression order at trial is reviewed for abuse of discretion. Rabb, 752 F.2d at 1323. Under the conditions noted by the court here it was not an abuse of discretion for the district judge to reconsider whether the evidence from the automobile stop had been lawfully obtained. Appellants present no showing that the procedure followed by the district court prejudiced them. No witnesses disappeared between March and August; Cabrellis, the sole defendant in custody, was released on his own recognizance during the delay caused by the interlocutory appeal. Nor is there any indication that the government acted merely to delay these proceedings. Therefore, we find no abuse of discretion in going forward with the suppression hearing. C. Failure to Disclose Informant Materials at the Suppression Hearing At the August hearing, defense counsel objected to the admission of any information derived from the government informant other than the fact that police officers were present at the shopping center due to the informant’s tip. The court denied the suppression motion, stating that it would not rely upon any informant information in reaching its decision. Rather, while acknowledging that the informant’s tip led to the presence of the officers at the shopping center, the court said it based the finding of reasonable suspicion solely on the observations of the officers at the scene. Appellants’ argument that the suppression motion could not be resisted without information from" }, { "docid": "12123964", "title": "", "text": "U.S. at 27, 88 S.Ct. at 1883. The Court in Terry established a dual inquiry for evaluating the reasonableness of an investigative stop. The reviewing court must determine first “whether the officer’s action was justified at its inception,” and second, whether the officer’s action was “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. at 1879. On appeal, Abokhai first argues that the initial stop and detention were conducted without a reasonable and articulable suspicion that he was engaged in criminal activity. In our determination of whether the officers’ observations provided the requisite suspicion to justify an investigatory stop, we view the information available to the detaining officers as a whole, not as discrete and disconnected occurrences. United States v. Poitier, 818 F.2d 679, 683 (8th Cir.1987). Furthermore, the facts known to the officers must be assessed in light of the officers’ experience and expertise, for police officers are “trained and experienced in discerning in ostensibly innocuous behavior the indicia of [criminal activity].” United States v. Wallraff, 705 F.2d 980, 988 (8th Cir.1983) quoting United States v. Forero-Rincon, 626 F.2d 218, 222 (2d Cir.1980). “[C]onduct which would be wholly innocent to the untrained observer,” United States v. Mendenhall, 446 U.S. 544, 563, 100 S.Ct. 1870, 1882, 64 L.Ed.2d 497 (1980) quoting Brown v. Texas, 443 U.S. 47, 52 n. 2, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) might be considered significant to a trained and experienced criminal investigator. Here, Sergeant Nasalroad, an officer with seventeen years experience, observed the two men approaching a Texaco station on foot after dark. As Sargeant Nasalroad testified at the suppression hearing, his observations were particularly heightened because he was aware that a nearby Texaco station had been the object of an armed robbery just several days before. Sergeant Nasalroad further testified that the two individuals began acting suspiciously once inside the store. The two men appeared to be surveilling people entering and leaving the store and to be watching for any activity in the parking lot. Then, when the men left the" }, { "docid": "19940420", "title": "", "text": "infer that a driver is armed and dangerous because the officers believe that he appears nervous and reaches toward the car’s console when approached by police, even in a high-crime neighborhood.”). Soares’s heavy reliance on the outcome in McKoy fads to account for the differences between McKoy and this case. The officers clearly had reason to believe that Soares was dangerous and a threat to their safety. We have reminded the police that “the character of the neighborhood does not provide automatic permission” for them to stop and search any and everybody in a high-crime neighborhood. United States v. Villanueva, 15 F.3d 197, 199 (1st Cir. 1994) (citing Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). But “every case must be considered on its own reasons for suspicion of danger.” Id. (citation omitted). Our reminder was not meant to prevent the police from performing lawful stops of cars and pat-frisks of its passengers just because they happen to be in high-crime neighborhoods. There is nothing inconsistent with Villanueva and the actions of the police on the night in question. Unlike in McKoy, the police here relied on more than just nervousness and the fact that they stopped the car in a high-crime neighborhood. See McKoy, 428 F.3d at 40. The police testified that movement in the car as Lee stopped the vehicle, the verbal abuse, and Soares’s constant arm-flailing and rocking back and forth all contributed to the officers’ suspicions and fears. In McKoy, we said that “[a]fter a valid Terry stop, a pat frisk for weapons is ... permissible where ‘the officer is justified in believing that the person is armed and dangerous to the officers or others.’ ” Id. at 39 (quoting Romain, 393 F.3d at 71). The officers demonstrated that they feared for their safety. They approached the car with their sidearms, ready to use them if the situation required it. Soares was not only verbally abusive, but he repeatedly ignored the officers’ orders to remain still; he continuously waved his arms around erratically. His movements could easily be seen as" }, { "docid": "22276374", "title": "", "text": "to disclosure of presentence report). McBrearty in his brief cites nothing in the record suggesting that he ever pursued the issue before the lower court. In any event, McBrearty did see the report. At his sentencing, his counsel referred to the report and challenged various items in it. 2. Appropriateness of sentence. Appellants Yarbrough, Evans, Duey, Pierce and McBrearty attack the sentences imposed on them by the trial court. Yar-brough, Evans and McBrearty argue that the judge wrongfully sentenced them to consecutive sentences for their substantive RICO convictions and RICO conspiracy convictions. Yarbrough also claims error in a third consecutive sentence on another count of the indictment. Duey and Pierce argue that it was cruel and unusual punishment under the eighth amendment to sentence them to consecutive 20-year terms on Count III (conspiracy to rob armored ear) of the indictment. Sentencing is left to the sound discretion of the trial judge and his decision is reviewed only for an abuse of discretion. United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986). The sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States v. Washington, 578 F.2d 256, 258 (9th Cir.1978) (“It is established in this circuit that a sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual.”). If the sentence raises issues of constitutional magnitude however, review on appeal is more searching. Tucker, 404 U.S. at 447, 92 S.Ct. at 591. Yarbrough, Evans, and McBrearty essentially make policy arguments that consecutive sentencing is disfavored in general. They also assert that consecutive sentencing for substantive RICO convictions and RICO conspiracy is improper. The former claim is better directed to the legislature than a court on appeal. The latter has been answered in this circuit by United States v. Rone, 598 F.2d 564 (9th Cir.1979), cert. denied sub nom. Little v. United States, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). In" }, { "docid": "19195508", "title": "", "text": "(1968). This case requires us to deal with three Fourth Amendment questions: (1) whether the initial stop and brief detention of McCargo by the police was constitutional under Terry; (2) whether the police were entitled, as part of the Terry stop, to transport McCargo to the scene of the crime to see if an identification could be made by the victim; and (3) whether the police were entitled to pat down McCargo before transporting him to the crime scene in a police car. We review de novo each of these legal questions. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); accord United States v. Singh, 415 F.3d 288, 293 (2d Cir.2005); see United States v. Moran Vargas, 376 F.3d 112, 114 (2d Cir.2004). For the weapon to be admissible against McCargo, each question must be answered in the affirmative. II. The Initial Terry Stop The district court held that the officers had reasonable suspicion to stop and briefly detain McCargo, short of patting him down, because of his close physical and temporal proximity to the crime scene in a high-crime area. See Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (police may detain a suspect for further investigation upon reasonable suspicion of criminal wrongdoing). McCargo argues that the officers point to no aspect of McCargo’s behavior that itself indicated criminal wrongdoing: he did not act nervous or evasive; he did not match a description of the perpetrator (in fact none existed); and, because he was crossing Berkshire with 501 Berkshire to his right, he was not walking away from the crime scene when the officers approached him. We agree with the district court. Terry requires that a police officer have only “reasonable suspicion,” United States v. Scopo, 19 F.3d 777, 781 (2d Cir.1994), that “criminal activity may be afoot” to justify an investigatory stop, Terry, 392 U.S. at 30, 88 S.Ct. 1868. Reasonable suspicion requires considerably less of a showing than probable cause. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d" }, { "docid": "19943811", "title": "", "text": "273, 122 S.Ct. 744. “ ‘When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ the officer may conduct a patdown search ‘to determine whether the person is in fact carrying a weapon.’ ” Dickerson, 508 U.S. at 373, 113 S.Ct. 2130, quoting Terry, 392 U.S. at 24, 88 S.Ct. 1868. There must be articulable and specific facts as to dangerousness. See Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (“In the case of the self-protective search for weapons, [the officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.”). In determining whether the frisk was justified, this court must look to the totality of the circumstances. See United States v. Hanlon, 401 F.3d 926, 929 (8th Cir.2005). The district court found reasonable suspicion to justify a Terry stop because: (1) the area was a high crime area, and (2) Hughes matched the description given by dispatch. The officer testified that before he approached, Hughes and the others were standing near a bus stop, and were not engaged in any suspicious activity. Neither the district court nor the government points to any facts that support a reasonable suspicion that a crime was currently taking, or about to take, place. See Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (presence in a high crime area, without more, does not create reasonable suspicion for a Terry stop); United States v. Bailey, 417 F.3d 873, 877 (8th Cir.2005), cert. denied, 547 U.S. 1104, 126 S.Ct. 1894, 164 L.Ed.2d 578 (2006) (presence in a high crime area, plus officer’s observation of suspicious behavior, creates reasonable suspicion for a Terry stop). Therefore, to justify this stop, the officer must have been investigating a past crime. The district court found that dispatch “did not provide any details regarding what was suspicious about these parties other than that they were trespassing.” This court" }, { "docid": "23700874", "title": "", "text": "the records. Viewed in that light, the records were more akin to an “admission” than unreliable hearsay. The use of the records certainly do not implicate the concern of Quezada as the records from the sheriffs office were not made pursuant to the investigation of the instant offenses. The district court did not abuse its discretion in admitting the records from the sheriffs office. VI. DENIAL OF SEVERANCE MOTION Box moved to sever his trial from that of Yarbrough, Burch, and Conner, and also to sever the income tax counts pursuant to Federal Rules of Criminal Procedure 8(b) and 14. The trial court denied the motion to sever, finding that joinder was proper under Rule 8(b) and that cautionary instructions would cure any potential prejudice. The initial joinder of Box, Yarbrough, Burch and Conner for trial was legitimate because they were charged with having conspired with each other. United States v. Elam, 678 F.2d 1234, 1250 (5th Cir.1982). The district court’s decision of whether to grant a severance under Rule 14 because of prejudice is reviewable only for an abuse of discretion. United States v. Stotts, 792 F.2d 1318, 1321 (5th Cir.1986); see also United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir.1980) (to establish an abuse of discretion of the district court, a defendant must show that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection.). An appellant must demonstrate something more than the fact that a separate trial might offer him a better chance of acquittal. United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir.1981). Box contends that the pretrial publicity (regarding Yarbrough’s murder conviction and the Sheriff taking vacation after the investigation) “spilled over into the trial even though the trial judge diligently attempted to screen out those individuals who stated that they had formed an opinion which they would not be able to shake.” Box, however, has failed to demonstrate any actual prejudice. Further, because the district court allowed extensive voir dire regarding the pretrial publicity and admonished the jury to avoid any news" }, { "docid": "16191872", "title": "", "text": "v. Herron, 18 F.Supp.3d 214, 221 (E.D.N.Y.2014)). “‘[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.’ ” United States v. Watson, 404 F.3d 163, 167 (2d Cir.2005) (quoting United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992) (some quotation marks and alterations omitted)). However, “ ‘[g]eneral and eonclusory factual allegations which are based upon mere suspicion or conjecture, however, will not suffice to necessitate a hearing.’ ” Gentile v. Cty. of Suffolk, 926 F.2d 142, 148 (2d Cir.1991) (quoting Cohen v. United States, 378 F.2d 751, 760 (9th Cir.1967)). Further, “if facts urged in support of a hearing would not entitle the moving party to relief as a matter of law, no evidentiary hearing is required.” Id. (quoting Cohen, 378 F.2d at 760). Ultimately, the decision of whether to hold an evidentiary hearing is in the district court’s discretion. See United States v. Grant, No. 06 CR 732 (DLI), 2008 WL 111169, at *1 (E.D.N.Y. Jan. 8, 2008) (“However, even where the preliminary showing of facts requiring a hearing is weak, the court has discretion to determine whether to hold a suppression hearing.”); United States v. Shamsideen, No. 03 CR.1313(SCR), 2004 WL 1179305, at *9 (S.D.N.Y. Mar. 31, 2004) (“[I]t should be noted that District Courts have broad discretion when deciding whether or not to hold a suppression hearing.”). 2. The Reasonableness of the Search Although it is undisputed that the U.S. Probation and NYPD Officers entered the Defendant’s alleged residence without a warrant, the Government contends that the search was “reasonable” under the Fourth Amendment because (i) the Defen dant was on supervised release and therefore, had a lower expectation of privacy; and (ii) the U.S. Probation Officers had reasonable suspicion to suspect that the Defendant was in possession of a firearm. (The Gov’t Opp’n Ltr., Dkt. No. 15-cr-131, at 4-5.) For his part, the Defendant does not dispute that on January 13, 2015," }, { "docid": "14124405", "title": "", "text": "§ 70:2(a) (“Evidence of the defendant’s character as a law-abiding citizen is always relevant____”). Because its decision to exclude Yarbrough’s character witnesses was based on a legally erroneous reading of Rule 404(a)(1), the district court abused its discretion in excluding the proffered evidence. Atencio, 435 F.3d at 1235. This court’s inquiry does not, however, end with that conclusion. Pursuant to the Federal Rules of Criminal Procedure, we must disregard the district court’s error unless it affected Yarbrough’s substantial rights. Fed.R.Crim.P. 52(a). “In non-constitutional harmless error cases, the government bears the burden of demonstrating, by a preponderance of the evidence, that the substantial rights of the defendant were not affected.” United States v. Marshall, 432 F.3d 1157, 1162 (10th Cir.2005) (quotation omitted). The government has not argued, however, that if the district court erred in excluding Yar-brough’s proffered character witnesses, the error was harmless. Accordingly, it has failed to carry its burden of demonstrating Yarbrough’s substantial rights were not affected by the district court’s error. Even if this court were to exercise its discretion to initiate harmless error review sua sponte, United States v. Holly, 488 F.3d 1298, 1307-08 (10th Cir.2007), we would still conclude the error here affected Yarbrough’s substantial rights. A review of the entire trial transcript reveals that although Yarbrough’s actions were uncontested, his state of mind was highly controverted. In Petersen, this court concluded that in such situations, “the character of the defendant is an important element.” 268 F.2d at 88; see also Angelini, 678 F.2d at 382 (1st Cir.1982) (holding that exclu sion of character evidence of defendant’s law-abiding nature affected his substantial rights in a prosecution for possession of illegal drugs); United States v. Hewitt, 634 F.2d 277, 280 (5th Cir.1981) (same as to prosecution on charges of receipt or possession of an illegal weapon). Because the district court’s error deprived Yarbrough of important evidence relevant to a sharply controverted question going to the heart of Yarbrough’s defense, Yarbrough’s substantial rights were affected and he is entitled to a new trial. IV. Conclusion The district court properly admitted at trial the government’s wiretap evidence and" }, { "docid": "4720600", "title": "", "text": "having fled the scene. “The fact that he simply went into the courtyard of an apartment complex cannot justify stopping and searching him.” Rec. vol. I, doc. 2, at 2. Reviewing the findings of fact made by the district court for clear error and the ultimate question of reasonableness de novo, United States v. Manjarrez, 348 F.3d 881, 884 (10th Cir.2003), and viewing the evidence in the light most favorable to the government, United States v. Yarbrough, 527 F.3d 1092, 1097 (10th Cir.2008), we must reject Mr. Charles’s arguments. Unlike Mr. Charles’s primary case, United States v. Hughes, 517 F.3d 1013 (8th Cir.2008), the officers here had reasonable suspicion, if not probable cause to detain Mr. Charles. In Hughes, the Eighth Circuit reversed a finding of reasonable suspicion where officers responded to a call of “suspicious parties on the property” and deemed Mr. Hughes to match the described African-American male. Id. at 1015. The court noted that “[b]eing stopped and frisked on the street is a substantial invasion of an individual’s interest to be free from arbitrary interference by police.” Id. at 1018. As the officer testified, Mr. Hughes and his companions were not acting suspiciously, and there was no report of any property crime, personal crime, or any weapons. The officer agreed that there was “nothing in Dispatch ... to imply that this may be a dangerous situation.” Id. Here, as in Hughes, there was no disturbance call or suspicious activity reported. The similarities end there, however. Before being ordered to stop, Mr. Charles raced up a flight of stairs. He then ran into an officer, and attempted to break the officer’s hold, pulling him down several steps at the same time. It is also a relevant consideration, though not necessarily dispositive, that the officers, upon arrival, encountered Mr. Charles along with several others at the apartment building, late at night, and in' a high-crime area. See Adams v. Williams, 407 U.S. 143, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (holding that the fact that an investigatory stop took place in a “high crime area” is pertinent to" }, { "docid": "8067697", "title": "", "text": "Tom Moss, an undercover police agent who was dressed in blue jeans and a T-shirt. Sgt. Moss opened the door, displayed his badge and identification, and ordered appellant into the house. Appellant immediately stepped backwards but did not attempt to run away. Sgt. Moss pulled out his revolver and again ordered appellant into the house. Appellant entered the house whereupon Sgt. Moss requested his investigator to conduct a pat down search. A small quantity of marijuana and a gun were discovered. Appellant moved to suppress the evidence seized. Appellant argued that the search was unconstitutional because it was done without a warrant, without probable cause, without consent, and not incident to a valid arrest. Appellant stressed that the stop and frisk was not based upon objective facts from which a police officer could reasonably conclude that appellant was involved in criminal activity. The government sought to justify the frisk under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A full evidentiary hearing was held on November 26, 1979. Pursuant to the hearing, the district court denied appellant’s motion to suppress. The only issue raised by appellant is whether the firearm was lawfully seized and properly submitted into evidence over appellant’s objection. II. Discussion of Stop and Frisk Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. Brown v. Texas, 443 U.S. 45, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); United States v. Palmer, 603 F.2d 1286, 1288 (8th Cir. 1979). A seizure may be accomplished either by physical restraint or by sufficient show of authority. Terry v. Ohio, supra, 392 U.S. at 16, 88 S.Ct. at 1877. Thus, when Sgt. Moss ordered appellant into the house at gunpoint, he restricted appellant’s motion and performed a seizure subject to the reasonableness requirement of the fourth amendment. We must determine initially whether Sgt. Moss’ action was justified at its inception and, if so, whether the subsequent “pat down” was reasonably related in scope to the circumstances that justified the interference in the" }, { "docid": "14124400", "title": "", "text": "agents never once suggested or discussed the offense with him. That they provided him with access to information indicating his friend was under investigation is simply the kind of “artifice or stealth” courts have consistently held is insufficient to demonstrate wrongful inducement. See, e.g., Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 77 L.Ed. 413 (1932) (“It is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.”); Ramos-Paulino, 488 F.3d at 462; United States v. Brand, 467 F.3d 179, 190 (2d Cir.2006). Because the record is devoid of evidence of wrongful inducement, the district court correctly determined Yarbrough was not entitled to a jury instruction on entrapment. C. Character Evidence Yarbrough sought to introduce at trial character evidence of his integrity and status as a law-abiding, trusted police officer, pursuant to Federal Rules of Evidence 404(a)(1) and 405. He asserted evidence of his law-abiding nature was directly relevant to the charges at issue, which alleged he corruptly impeded and conspired to corruptly impede an investigation, as well as unlawfully and willfully provided notice of the existence of a search and seizure warrant to prevent the execution of such warrant. The district court excluded Yarbrough’s character witnesses on the ground the proffered evidence went to Yarbrough’s “state of mind at a particular incident,” rather than to the existence of “operative facts.” Yarbrough asserts on appeal that the district court erred in excluding his proffered character witnesses on this basis. The district court’s decision to exclude evidence is reviewed for abuse of discretion and will be reversed only if the decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Atencio, 435 F.3d 1222, 1235 (10th Cir.2006) (quotation omitted). “A district court by definition abuses its discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The Federal Rules of Evidence specifically provide" }, { "docid": "8302821", "title": "", "text": "4) forfeiture of firearm and currency; and 5) forfeiture of firearm. Claiming that Officer Ripberger did not have reasonable suspicion to believe that he had engaged in criminal activity, Keith moved to suppress the fruits of the initial stop of his car. He did not challenge any of the officers’ actions subsequent to the stop and does not make any such challenge on appeal. A magistrate judge issued a Report and Recommendation denying the motion to suppress, and the district judge adopted the Report and Recommendation in full. Keith entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion. II. ANALYSIS A. Standard of review In reviewing a district court’s decision on a motion to suppress, we review factual findings for clear error and the application of the law to those findings de novo. United States v. Garcia, 496 F.3d 495, 502 (6th Cir.2007). We “ ‘must consider evidence in the light most likely to support the district court’s decision[.]’ ” Id. (quoting United States v. Marxen, 410 F.3d 326, 328 (6th Cir.2005)). Keith does not challenge the facts as stated by the magistrate judge and the district court— the issue before us is the application of the law to those facts. B. Legal standard for existence of reasonable suspicion A Terry stop is permissible only if law enforcement officers had a “particularized and objective basis for suspecting the particular person stopped of criminal activity,” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), and “were aware of specific and articulable facts which gave rise to reasonable suspicion.” United States v. Davis, 514 F.3d 596, 608 (6th Cir.2008) (internal quotation marks omitted). Reasonable suspicion does not materialize merely because a person “looked suspicious” and was in a “high drug problem area.” Brown v. Texas, 443 U.S. 47, 49, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to" }, { "docid": "23555347", "title": "", "text": "a reasonable suspicion justifying the initial stop. The district court denied the motion to suppress and found Lopez guilty as charged. Lopez received five years’ probation. II. Discussion On appeal, Lopez argues that law enforcement officers lacked the reasonable suspicion necessary to justify an immigration stop of her vehicle; that a broken taillight did not provide probable cause for the police to effect a traffic stop; that a Texas DPS trooper’s erroneous belief that a broken taillight constituted a traffic infraction did not excuse the vehicular search under the good-faith exception to the probable cause requirement; and that, in accordance with the Fourth Amendment prohibition against illegal searches and seizures, the illegal stop and detention of Lopez requires the suppression of all evidence acquired subsequent to the stop. The Government argues that the district court improperly concluded that the good-faith exception to the exclusionary rule was inapplicable and that either reasonable suspicion or the good-faith exception justified the vehicular stop. A. In reviewing the denial of a motion to suppress, a district court’s purely factual findings are reviewed for clear error. See United States v. Nichols, 142 F.3d 857, 864-65 (5th Cir.1998). Its conclusion that the facts provided the probable cause or reasonable suspicion necessary to justify a detention is reviewed de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). B. A vehicle may not be stopped simply because it is traveling on a road near the U.S.-Mexican border. See Brown v. Texas, 443 U.S. 47, 49-52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (noting that presence in a high-crime area does not provide reasonble suspicion); United States v. Newell, 506 F.2d 401, 405 (5th Cir.1975) (explaining that presence in a border area does not place a citizen “within a deconstitutionalized zone”). A border patrol agent may briefly detain a vehicle only if the agent is “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the vehicle is involved in illegal activities. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574," }, { "docid": "268941", "title": "", "text": "pad, which contained numerous notations of ounces, pounds, amounts of money, and references to profits and expenses. Glass filed a motion to suppress the cocaine and the legal pad. After holding a hearing, a United States magistrate recommended that the motion be denied. Following the filing of objections to the magistrate’s report, the district court reviewed a transcript of the hearing and issued a memorandum ruling denying the motion to suppress. Upon denial of the motion, Glass pled guilty pursuant to Fed.R.Crim.P. 11(a)(2). He was sentenced to three years imprisonment. II Glass argues that the search of his person and luggage violated the Fourth Amendment. He contends he was too intoxicated to give a knowing and voluntary consent and that, if his consent was voluntary, it was the product of an illegal seizure. We do not reach the voluntariness issue because we hold that the investigatory stop, which preceded the request for consent, was invalid and that the consent was the result of the illegal stop. Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief “seizures” that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause. United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982) (en banc). We deal here with the second type of encounter — a brief “seizure,” or investigatory stop, the basis of which is that police have reasonable suspicion to believe a crime is being or is about to be committed. See Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). The Supreme Court has defined reasonable suspicion as “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [an] intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868,1879, 20 L.Ed.2d 889 (1968); see United States v. Scott, 678 F.2d 32, 35 (5th Cir.1982). In essence, the question here is whether, based upon the totality of circumstances, the officers who stopped" }, { "docid": "22063910", "title": "", "text": "with a suspended license on a “highway.” The district court affirmed the magistrate judge’s judgment on both points. J.A. 18-27, 205-15. Smith now appeals. II. First, Smith challenges the district court’s affirmance of the magistrate judge’s denial of his motion to suppress the evidence gathered against him by Officer Petrus. Smith claims that a seizure occurred when the armed officers approached his car, making him feel that he could not leave without answering their questions. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”). A seizure is permissible under the Fourth Amendment either if officers “have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity,” or if the stop is made “pursuant to a practice embodying neutral criteria.” Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Smith contends that neither of these circumstances is present, and thus that the alleged seizure violated the Fourth Amendment and that evidence gathered against him during the seizure must be suppressed. The district court denied the motion to suppress, concluding that a seizure did occur, but that the officers had reasonable articulable suspicion for the seizure. J.A. 212, 214. We review the district court’s conclusions of law de novo, but review its underlying factual conclusions only for clear error. United States v. McKinnon, 92 F.3d 244, 246 (4th Cir.1996). We are not limited to evaluation of the grounds offered by the district court to support its decision, but may affirm on any grounds apparent from the record. MM v. School District, 303 F.3d 523, 536 (4th Cir.2002). We do not reach the district court’s conclusions that a seizure occurred and that reasonable suspicion existed, because we find that even if the officers’ show of force was a seizure, that seizure was consensual and thus reasonable. Florida v. Jimeno," }, { "docid": "23482524", "title": "", "text": "Terry requires that in order to stop a person for investigative purposes, a law enforcement official must be “able to point to specific and articulable facts” that give rise to a reasonable suspicion of criminal activity. Terry, at 21-22, 88 S.Ct. at 1879-81. Under circuit precedent: [T]he reasonableness of an investigatory stop may be determined by examining: (1) whether the police were aware of specific and articulable facts giving rise to reasonable suspicion; and (2) whether the degree of intrusion was reasonably related to the known facts. Tilmon at 1224. The inquiry on appeal must focus on “the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion.” Ornelas, at-, 116 S.Ct. at 1661. At the suppression hearing, Deputy Rehg identified four facts which led him to stop Duguay. First, Rehg believed that Duguay’s automobile had pulled into the Dooley parking lot to avoid the police roadblock. Second, Rehg knew Duguay to be associated with Ronald Blake’s narcotics distribution ring in East St. Louis. Third, Rehg believed that Duguay had sold crack cocaine to undercover police officers in the past. Finally, Rehg knew that Duguay resided in a different housing project and was trespassing. At oral argument, Duguay suggested that several of the articulated bases of suspicion were insufficient to justify an investigative stop. Taken separately, several of Rehg’s reasons strike us as problematic. In particular, we are troubled by the government’s suggestion in its brief that the stop was warranted because Duguay was about to enter a high crime housing project where he was not a resident. See, e.g., Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (“The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.”). We would similarly be wary if Deputy Rehg decided to stop Duguay for investigation solely on the basis of his criminal reputation, or presumed association" }, { "docid": "22463319", "title": "", "text": "prior drug arrest which was the main purpose of his testimony. Finally, those two arrests were mentioned only in the officer’s testimony; the Government made no reference to them in closing arguments. Therefore, given the limited reference to those prior arrests, we find the admission of this evidence was harmless error. B. Bruton Error Arambula next argues that the district court committed a Bruton error when it denied his motion for mistrial after counsel for a codefendant asked a leading question referring to an inadmissible co-conspirator hearsay statement which incriminated Arambula. He contends that the alleged error violated his Sixth Amendment right to confrontation. We disagree. Denials of motions for mistrial are reviewed for abuse of discretion. United States v. Homick, 964 F.2d 899, 906 (9th Cir.1992). However, we review de novo alleged constitutional errors. United States v. Yarbrough, 852 F.2d 1522, 1536 (9th Cir), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988). Nonetheless, Confrontation Clause violations do not require reversal if the error was harmless beyond a reasonable doubt. Toolate v. Borg, 828 F.2d 571, 575 (9th Cir.1987). The Supreme Court held that where one defendant’s confession inculpates another defendant, the former’s confession cannot be admitted into evidence because there is a “substantial risk that the jury, despite instructions to the contrary, [will look] to the incriminating extrajudicial statements in determining petitioner’s guilt....” Bruton, 391 U.S. at 126, 88 S.Ct. at 1622. However, as we have noted, only statements that are powerfully incriminating, or clearly inculpate the defendant, implicate the Bruton rule. Yarbrough, 852 F.2d at 1537. Redaction and proper limiting instructions together are sufficient to overcome Bruton error. Id. Codefendant Guerra’s counsel asked the arresting officer the following question: “You state, in your report, that Aldana told you that the sample was a representative of 40 ounces of heroin that Jose Arambula-Ruiz had in his possession.” Both parties agree that the statement was inadmissible. However, they dispute its prejudicial effect. We have found no cases which address the precise issue presented here: whether an incriminating question posed by defense counsel and based upon a" }, { "docid": "16029075", "title": "", "text": "belief that Reid was “armed and dangerous.” Moreover, it provides only the most attenuated basis—his proximity to or possible emergence from the apartment to be searched—for believing that he had any connection at all with suspected criminal activity. Accordingly, I dissent from the majority’s affirmance of the denial of the motion to suppress. The Supreme Court has “invariably held” that a “reasonable belief that [a person] [i]s armed and presently dangerous ... must form the predicate to a patdown of a person for weapons.” Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 343, 62 L.Ed.2d 238 (1979); see also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (officer may conduct weapons search only if she is entitled to make a forcible stop and has reason to believe the suspect is armed and dangerous). To justify a pat- down, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880; Brown v. Texas, 443 U.S. 47, 51-52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (stop and frisk not justified where officer testified that person was “looking suspicious,” but could not point to “specific, objective facts” supporting that conclusion). Such facts are absent in this case. Officer Carter, the one who actually stopped and frisked Reid, did not have any information indicating that Reid was carrying a weapon. Cf. United States v. Clipper, 973 F.2d 944, 950 (D.C.Cir.1992) (finding reasonable suspicion for a Terry stop where officers were informed that person was carrying a gun, and distinguishing a gun tip from a drug tip because of the “unique dangers” of firearms), cert. denied, — U.S.-, 113 S.Ct. 1025, 122 L.Ed.2d 171 (1993). He saw nothing in Reid’s hands, nor did he see Reid reach into his pocket. The search warrant did not indicate any probable cause to believe there were weapons in the apartment; it authorized only the search for drugs and for personal papers, such as residency" }, { "docid": "19940419", "title": "", "text": "erratic movements and disconcerting behavior. See Maryland v. Wilson, 519 U.S. 408, 414, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (“[Djanger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car” and “therefore ... an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”). Reid testified that he asked Lapolis to pat-frisk Soares only because he “felt really uneasy about ... the way [Soares] was behaving.” Under the circumstances, Reid’s judgment that Soares posed a threat was an objectively reasonable and a justified reaction to the situation. Soares also argues that the facts here are substantially the same as those in McKoy, in which we held that the police lacked reasonable suspicion for a pat-frisk. See United States v. McKoy, 428 F.3d 38, 41 (1st Cir.2005). In that case, the officers based their suspicion on the dangerousness of the neighborhood and McKoy’s nervousness. Id. (“It is simply not reasonable to infer that a driver is armed and dangerous because the officers believe that he appears nervous and reaches toward the car’s console when approached by police, even in a high-crime neighborhood.”). Soares’s heavy reliance on the outcome in McKoy fads to account for the differences between McKoy and this case. The officers clearly had reason to believe that Soares was dangerous and a threat to their safety. We have reminded the police that “the character of the neighborhood does not provide automatic permission” for them to stop and search any and everybody in a high-crime neighborhood. United States v. Villanueva, 15 F.3d 197, 199 (1st Cir. 1994) (citing Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). But “every case must be considered on its own reasons for suspicion of danger.” Id. (citation omitted). Our reminder was not meant to prevent the police from performing lawful stops of cars and pat-frisks of its passengers just because they happen to be in high-crime neighborhoods. There is nothing inconsistent with Villanueva and" } ]

[ { "docid": "16198470", "title": "", "text": "could properly rely on the facts found in the revised PSR to evaluate the propriety of the enhancement. See United States v. Wiant, 314 F.3d 826, 832 (6th Cir.) (holding that the district court did not err in making a finding on the basis of the PSR, without taking additional evidence, where “[a]lthough [the defendant] weakly reiterated his position that the reduction in donations was merely speculative, he offered no reason whatsoever to contradict the evidence in the presentence report, and the sentencing judge found it credible”), cert. denied, — U.S. -, 123 S.Ct. 1774, 155 L.Ed.2d 529 (2003). Lang argues alternatively that, on the merits, the enhancement should not have been applied in her case. We review the district court’s application of § 3B1.3 under the “clearly erroneous” standard where, as here, it is fact-bound. Buford v. United States, 532 U.S. 59, 66, 121 S.Ct 1276, 149 L.Ed.2d 197 (2001) (affirming the use of a deferential standard of review to the district court’s fact-bound application of the Sentencing Guidelines); United States v. Jackson-Randolph, 282 F.3d 369, 389-90 (6th Cir.2002) (holding that where the district court’s application of the Sentencing Guidelines is fact-bound, both factual findings and application of the Guidelines to those facts should be set aside only if they are clearly erroneous). But see United States v. Gilliam, 315 F.3d 614, 617 (6th Cir.2003) (citing, in dicta, pre-Buford precedent for the proposition that “[w]e review de novo the district court’s determi nation that a defendant occupied a position of trust for the purposes of the Sentencing Guidelines”). The application notes for § 3B1.3 provide in pertinent part as follows: “Public or private trust” refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by" } ]

[ { "docid": "22978996", "title": "", "text": "L.Ed.2d 809 (2008), with United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001) (due deference). In United States v. Hardin, 248 F.3d 489 (6th Cir.), cert. denied, 534 U.S. 920, 122 S.Ct. 271, 151 L.Ed.2d 199 (2001), we set forth the circuit’s general rule that we review factual findings for clear error and legal questions, including whether to apply the § 2K2.1(b)(6) enhancement, de novo. Id. at 492-93 (quoting United States v. Hill, 79 F.3d 1477, 1481 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996)). But we also questioned, without deciding, the impact of the Supreme Court’s decision in Buford v. United States, 532 U.S. 59, 66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), which set forth a deferential standard of review for the fact-bound legal question of whether a defendant’s prior convictions were “related” for purposes of sentencing. Hardin, 248 F.3d at 493-95. In Ennenga, 263 F.3d at 502, we answered the question left open in Hardin, concluding that the “due deference” standard from Buford should be afforded to the district court’s determination that the § 2K2.1 enhancement applies in a particular fact situation. We recognize that challenges to the application of the § 2K2.1(b)(6) enhancement may “present[] strictly a question of law,” which warrants de novo review. United States v. Hyler, 308 Fed.Appx. 962, 964-67 (6th Cir.2009) (unpublished decision) (citing United States v. Canestraro, 282 F.3d 427, 431 (6th Cir.2002)) (reviewing de novo three questions of law regarding application of the enhancement); see also United States v. King, 341 F.3d 503, 505-06 & n. 3 (6th Cir.2003) (reviewing de novo whether felonious assault constitutes “another felony” under § 2K2.1). We need not consider here, however, the boundary between pure questions of law and fact-bound questions of law with respect to the application of § 2K2.1(b)(6). Taylor challenges the district court’s determination that the firearm was used or possessed “in connection with” the delivery-of-cocaine-base felony— i.e., that there was a nexus between the firearm and the felony — which is a “fact-specific inquiry.” McKenzie, 410 Fed.Appx. at 946. Under Ennenga, the district" }, { "docid": "1993014", "title": "", "text": "in this circuit. In United States v. Carter, for example, citing pre-Buford cases and mentioning neither Buford nor the statutory standard of review set out in 18 U.S.C. § 3742(e), we held that in reviewing the district court’s decision that prior offenses were not part of a common scheme or plan, we review the sentencing court’s findings of fact for clear error and its application of the guidelines de novo. United States v. Carter, 283 F.3d 755, 757 (6th Cir.2002). On the other hand, we have held that Buford has a much broader and more general application. In United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), we reviewed the reasoning of Buford, and concluded that the district court’s application of USSG § 3C1.1 is to be reviewed deferentially because, like the determination of whether felony convictions are “related,” the determination of whether particular conduct constituted obstruction of justice is a fact-bound decision in which “ ‘factual nuance may closely guide the legal decision, with legal results depending heavily upon an understanding of the significance of case-specific details.’ ” Jackson-Randolph, 282 F.3d at 389 (quoting Buford, 532 U.S. at 65, 121 S.Ct. 1276). We noted further that like the determination at issue in Buford, the question of whether particular conduct constitutes obstruction of justice is a matter within the special competence of district court judges and the conclusion reached on the matter has little precedential value because of the case-specific and fact-bound circumstances. Id. at 389-90. Accordingly, we concluded, “the clear error standard is also appropriate for reviewing sentencing decisions under § 3C1.1 where the sole issue before the district court is a fact-bound application of the guideline provisions.” Id. at 390. See also United States v. Webb, 335 F.3d 534, 537 (6th Cir.2003) (holding that the district court’s application of the guidelines to the facts should not be disturbed unless clearly erroneous); United States v. Lang, 333 F.3d 678, 682 (6th Cir.2003) (holding that we review under the “clearly erroneous” standard the district court’s application of USSG § 3B1.3 where the application is fact-bound); United States v. Ennenga," }, { "docid": "23699737", "title": "", "text": "appeal on April 26, 2001. On May 30, 2001, the district court issued an order denying Canestra-ro’s motion for bond pending appeal. II. ANALYSIS A. More Than One Gratuity The district court enhanced Canestraro’s offense level by two levels, pursuant to § 2C1.2(b)(l) of the Sentencing Guidelines, which authorizes such an enhancement “if the offense involved more than one gratuity.” U.S. Sentencing Guidelines Manual (“U.S.S.G”) § 201.2(b)(1) (1998). Canestraro contends that the district court erred in finding that his conduct involved multiple illegal gratuities. This Court reviews the district court’s findings of fact at sentencing for clear- error, while the district court’s interpretations of the Sentencing Guidelines are reviewed de novo. United States v. Brown, 147 F.3d 477, 485 (6th Cir.1998). The district court’s application of the Guidelines to undisputed facts, however, is reviewed deferentially. United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001). Insofar as Canestraro challenges the district court’s determination of what factors may be considered in determining multiplicity, this is a “purely legal matter” that inquires into the “basic intent” of the Guidelines for which de novo review is appropriate. Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 1280-81, 149 L.Ed.2d 197 (2001); see also United States v. Humphrey, 279 F.3d 372, 2002 WL 112482, at *5 n. 4 (6th Cir.) (concluding that legal question was presented as to whether “position of public trust” provision in the Guidelines required showing of factors indicating a level of discretion similar to that of a fiduciary). Insofar as Canes-traro challenges the district court’s conclusion that the specific circumstances of his case show that he aided and abetted the receipt of “more than one gratuity,” we apply a deferential standard of review. The commentary to § 2C1.2 states that “[r]elated payments that, in essence, constitute a single gratuity (e.g., separate payments for airfare and hotel for a single vacation trip) are to be treated as a single gratuity, even if charged in separate counts.” U.S.S.G. § 2C1.2 commentary, applic. note 4. Other than the vacation trip example, the commentary provides little direction as to the kinds of circumstances" }, { "docid": "22295582", "title": "", "text": "they're going to do a demonstration of actual coinage, there’s no way we can object to that, that’s coinage; but what you're going to find here is that all of this stuff here is not coinage. There's only four or five bags here that's coinage, and the rest of it is fluff.” Joint Appendix (\"J.A.”) at 206. At a pretrial conference held before United States Magistrate Judge Dennis H. Inman, the Government notified the court and the defense that it intended to introduce bags of coins totaling $20,000 to $40,000 and additional empty bags to show what $200,000 would look like. The Government explained that only a portion of the $200,000 would be in actual coins because bringing $200,000 to open court would present logistical and security problems. Humphrey’s argument thus is one of prejudice, based on the fact that the Government introduced bags filled with styro-foam peanuts rather than the empty bags that were discussed at the pretrial conference. . Defense counsel suggested at trial that the memo would assist Peeks in his testimony and refresh his recollection of the events. J.A. at 389, 396. For this limited purpose, of course, the document would not have been introduced into evidence. See United States v. Faulkner, 538 F.2d 724, 727 (6th Cir.), cert. denied, 429 U.S. 1023, 97 S.Ct. 640, 50 L.Ed.2d 624 (1976); 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6184, at 457 (1993). . In certain circumstances, we review the application of a guideline to an undisputed factual situation under a more deferential standard. United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001) (citing Buford v. United States, 532 U.S. 59, 65-66, 121 S.Ct. 1276, 1281, 149 L.Ed.2d 197 (2001)). In Buford, the Supreme Court addressed \"a narrow question of sentencing law” and affirmed the deferential review of a district court's determination as to whether a defendant's prior convictions were consolidated and thus \"related” for sentencing purposes. 121 S.Ct. at 1278. The Buford Court reasoned that deferential review was appropriate \"[i]n light of the fact-bound nature of the legal decision, the" }, { "docid": "22248666", "title": "", "text": "laser sight. B. Procedural background Pursuant to the superseding indictment, Ennenga was charged with one count of illegally manufacturing marijuana plants, in violation of 21 U.S.C. § 841(a)(1), and one count of being a felon in possession of one or more firearms in violation of 18 U.S.C. § 922(g)(1). On August 25, 1999, Ennenga and the government entered into a plea agreement in which he pled guilty to the firearms count, and the United States dropped the count alleging the manufacture of controlled substances. The presentence report (PSR) recommended a special-offense adjustment of four levels pursuant to § 2K2.1(b)(5) of the United States Sentencing Guidelines, which requires such an increase when a “defendant ... possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Ennenga objected to this recommendation. The district court overruled Ennenga’s objection at the sentencing hearing. He was then sentenced to 36 months of imprisonment and 3 years of supervised release. Ennenga timely appealed from the imposition of this sentence. II. ANALYSIS A. Standard of review When reviewing a district court’s sentencing decisions, we “will disturb the underlying factual findings only if they are clearly erroneous.” United States v. Hill, 79 F.3d 1477, 1481 (6th Cir.1996). Although the application of a guideline to factual situations has, in the past, been subject to de novo review, see id., the Supreme Court’s recent decision in Buford v. United States, 532 U.S. 59, -, 121 S.Ct. 1276, 1281, 149 L.Ed.2d 197 (2001), suggests that our standard of review even with regard to these questions of law should instead be deferential. See United States v. Hardin, 248 F.3d 489, 495 (6th Cir.2001) (declining to decide whether the term “in connection with” under § 2K2.1 was subject to a deferential standard of review, even though “we would be inclined to conclude that under Buford ” such deference is required). In Buford, the defendant challenged the district court’s application of United States Sentencing Guidelines § 4B1.1, in which a court must determine whether a defendant is" }, { "docid": "1993016", "title": "", "text": "263 F.3d 499, 502 (6th Cir.2001) (noting that Buford “suggests that our standard of review even with regard to these questions of law should instead be deferential,” and holding, in light of the analysis in United States v. Hardin, 248 F.3d 489, 495 (6th Cir.2001), that the district court’s application of USSG § 2K2.1 is to be reviewed deferentially); United States v. Hardin, 248 F.3d 489, 495 (6th Cir.2001) (opining, but not deciding, that Buford’s, deferential standard would apply to review of the district court’s application of USSG § 2K2.1(b)(5)). In light of the reasoning of Buford and the ensuing case law in this circuit, we are satisfied that we must review deferentially, that is, for clear error, the entirety of the district court’s determination that Horn’s prior robbery convictions were not related. Under USSG § 4A1.2, “prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” USSG § 4A1.2, cmt. n. 3. Although conceding that no formal order of consolidation was entered by the state court hearing those cases, Horn first argues that the two prior armed robbery convictions were “effective ly consolidated,” because he was arrested and charged with the robberies at the same time; he made an initial appearance as to both offenses at the same time; the cases were set for trial on the same date; the same counsel represented defendant as to both offenses; a guilty plea was entered for each ‘offense on the same day; and defendant was sentenced for both offenses on the same day with sentences to run concurrently. At oral argument of this case, Horn urged upon us the proposition that this Court has never explicitly held that prior offenses must be formally consolidated in order that they may be found to be related for purposes of USSG § 4A1.2, and therefore, no formal order of consolidation is required for such a finding. Defendant’s reliance on this lacuna is misplaced. We have stated several times that" }, { "docid": "22212045", "title": "", "text": "they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.” There are inconsistent opinions in this circuit regarding what deference is due when reviewing the application of U.S.S.G. § 3C1.1. Compare United States v. Bennett, 975 F.2d 305, 308 (6th Cir.1992)(stating that district courts have “considerable discretion” in deciding whether a defendant’s conduct amounts to obstruction of justice and that we review the decision for abuse of discretion); United States v. Medina, 992 F.2d 573, 591 (6th Cir.1993)(same); with United States v. Sanchez, 928 F.2d 1450, 1458 (6th Cir.1991)(concluding that the question of whether a defendant’s conduct constitutes obstruction of justice centers on a legal interpretation of the guideline and calls for a de novo review); United States v. McDonald, 165 F.3d 1032, 1034-35 (6th Cir.1999)(reviewing prior decisions and concluding that a determination of whether a set of facts constitutes obstruction of justice is a mixed question of law and fact that is reviewed de novo). The Supreme Court’s recent decision in Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), changes our prior analyses of the appropriate standard of review of the § 3C1.1 enhancement. In Buford, the Court unanimously held that a court of appeals should review a district court’s application of U.S.S.G. § 4B1.2 “deferentially” rather than de novo. Id. at 1280. The Court based its conclusion in part on 18 U.S.C. § 3742, which calls for “due deference” to a district court’s application of the sentencing guidelines to the facts. Id. at 1279 (quoting 18 U.S.C. § 3742(e)). The Court then gave three reasons to support a deferential standard: the district courts’ expertise and experience in applying sentencing provisions, the fact-specific nature of such determinations, and the “limited value of uniform court of appeals precedent” on a particular factual scenario. Id. at 1280-81. In United States v. Hardin, 248 F.3d 489 (6th Cir.2001), the court concluded that this reasoning applies to § 2K2.1(b)(5), the sentencing guideline at issue in that case. Id. at 493-94. See also United States v. Paul, 274" }, { "docid": "23168732", "title": "", "text": "the appellate court.” Thus, in analyzing whether the 1991 drug conviction should count as relevant conduct, we review the district court’s determination de novo. United States v. Hill, 79 F.3d 1477, 1481 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996) (citations omitted); accord United States v. Mise, 240 F.3d 527, 530-31(6th Cir.2001). In United States v. Sanders, 162 F.3d 396 (6th Cir.1998), we applied the standard of de novo review in interpreting different wording contained in § 2K2.1(b)(5): “another felony offense.” The instant appeal involves a legal interpretation of the guideline term “in connection with,” insofar as the district court was required to apply the facts to that term, which is not defined in the guidelines. Under Sixth Circuit precedent, we would review de novo the district court’s decision to apply the enhancement under § 2K2.1(b)(5). However, the recent unanimous Supreme Court decision, Buford v. United States, — U.S. -, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), while self-described as raising a “narrow question of sentencing law,” may well apply to the instant situation. The Buford opinion opened with the following language: This case raises a narrow question of sentencing law. What standard of review applies when a court of appeals reviews a trial court’s Sentencing Guideline determination as to whether an offender’s prior convictions were consolidated, hence “related,” for purposes of sentencing? In particular, should the appeals court review the trial court’s decision deferentially or de novo? We conclude, as did the Court of Appeals, that deferential review is appropriate, and we affirm. Id. at 1278. In the instant case, we are reviewing a trial court’s guidelines determination of whether the defendant’s possession of narcotics was “in connection with” his firearm conviction. There is a significant similarity between the two case scenarios — application of uncontested facts to guideline language, “related” (Buford) and “in connection with” (Hardin, the instant case). Indeed, the word “related” is a synonym for “connection,” and vice ver-sa. Roget’s ThesaüRus II, ExpaNded Ed. at 203 (connection), 815 (related) (1988). In Buford, the district court decided, with regard to the" }, { "docid": "1993013", "title": "", "text": "has jurisdiction over this appeal. In reviewing a sentence imposed under the Sentencing Guidelines, we are required by statute to “accept the findings of fact of the district court unless they are clearly erroneous and [to] give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e). This deferential standard applies at least to the first aspect of the question of relatedness before us here: whether the district court erred in determining that Horn’s prior offenses were not “effectively consolidated” and are therefore not “related cases” as that term is defined for purposes of determining career offender status under USSG § 4B1.1. See Buford v. United States, 532 U.S. 59, 66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001) (holding that “in light of the fact-bound nature of the legal decision,” deferential rather than de novo review was appropriate for the district court’s determination that particular prior convictions are separate and not “functionally consolidated”). Whether Buford’s deferential standard applies to all aspects of the relatedness question is not clear in this circuit. In United States v. Carter, for example, citing pre-Buford cases and mentioning neither Buford nor the statutory standard of review set out in 18 U.S.C. § 3742(e), we held that in reviewing the district court’s decision that prior offenses were not part of a common scheme or plan, we review the sentencing court’s findings of fact for clear error and its application of the guidelines de novo. United States v. Carter, 283 F.3d 755, 757 (6th Cir.2002). On the other hand, we have held that Buford has a much broader and more general application. In United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), we reviewed the reasoning of Buford, and concluded that the district court’s application of USSG § 3C1.1 is to be reviewed deferentially because, like the determination of whether felony convictions are “related,” the determination of whether particular conduct constituted obstruction of justice is a fact-bound decision in which “ ‘factual nuance may closely guide the legal decision, with legal results depending heavily upon an understanding of the" }, { "docid": "22212047", "title": "", "text": "F.3d 155 (5th Cir.2001)(applying the Buford analysis and using deferential standard in reviewing district court’s application of U.S.S.G. § 2G2.2). The Court’s reasoning and decision in Buford lead us to conclude that a deferential standard of review is appropriate in reviewing applications of § 3C1.1 as well. First, like determinations of whether gun possession was “in connection with” another felony offense or whether felony convictions are “related,” the determination of whether a set of facts constitutes obstruction of justice is a fact-bound decision. As the Court noted in Buford, “factual nuance may closely guide the legal decision, with legal results depending heavily upon an understanding of the significance of case-specific details.” Buford, 121 S.Ct. at 1280. Second, the district court has a “special competence” in making such sentencing determinations. Hardin, 248 F.3d at 494. District courts are required to make sentencing determinations on a regular basis and see and hear numerous varia tions on the same crime or theme to which they must apply the Guidelines. Third, as stated in Buford, there is limited value in uniform precedent in case-specific, fact-bound circumstances such as these. The question of whether conduct amounts to obstruction of justice “grows out of, and is bounded by, case-specific detailed factual circumstances,” and appellate court precedent would only provide minimal help in making such determinations. Buford, 121 S.Ct. at 1281. What deference is due? While the Court in Buford cites case law employing an abuse-of-discretion standard, the Court’s comment was made in the context of justifying its move away from a de novo standard based on the competence of district courts. Id. at 1280 (citing Koon v. United States, 518 U.S. 81, 98-99, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996)). The decision from the Seventh Circuit which the Court affirmed, however, had concluded that clear error was the appropriate deferential standard. United States v. Buford, 201 F.3d 937, 942 (7th Cir.2000). See Malachinski v. C.I.R., 268 F.3d 497, 511-12 (7th Cir.2001)(Posner, J., concurring)(citing the Supreme Court’s Buford decision for clear error standard when reviewing a district court’s application of a sentencing guideline). It is well-settled" }, { "docid": "22212052", "title": "", "text": "the unreliability of testimony given before the case was even brought against her. The guilty plea is not a consideration in this regard. . Rule 608(b) provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness ... . The offense of conviction occurred prior to the mandatory restitution provisions of 18 U.S.C. § 3663A were passed. The government does not argue that 18 U.S.C. § 3663A should be applied in this case. . Since 1996, § 3572(b) has read: \"If, as a result of a conviction, the defendant has the obligation to make restitution to a victim of the offense, other than the United States, the court shall impose a fine or other monetary penalty only to the extent that such fine or penalty will not impair the ability of the defendant to make restitution.” . Section 4B1.2 provides that, with respect to determining whether a defendant is a \"career offender”, a sentencing judge must count as a single conviction all those that are \"related” to one another. . Section 2K2.1(b)(5) of the Sentencing Guidelines provides for a four-level increase in unlawful gun possession convictions for possessing the gun \"in connection with” another felony. The court did not actually decide whether the de novo or deferential standard should apply because the Buford decision had just been issued and the parties had not fully briefed or argued the issue. Hardin, 248 F.3d at 495. Based on the court's analysis and the statement that \"we would be inclined to conclude that under Buford,\" such deference is required, a more recent case held that a deferential standard of review of a court's application of § 2K2.1 is appropriate. United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001)." }, { "docid": "22248668", "title": "", "text": "a career offender. When computing a defendant’s felony history, § 4A1.2 tells the sentencing court to count “related offenses” as a single offense. The question on appeal in Buford was not “any relevant underlying issue of fact. [Buford] disagreed only with the District Court’s legal conclusion that a legal label — ‘functional consolidation’ — failed to fit the undisputed facts.” Buford, — U.S. at-, 121 S.Ct. at 1279. The Supreme Court concluded that this narrow question on appeal requires a “deferential standard of review,” based in part on the wording of the federal sentencing statute, 18 U.S.C. § 3742. This statute commands a reviewing court to “ ‘give due deference to the district court’s application of the guidelines to the facts.’ ” Buford, — U.S. at-, 121 S.Ct. at 1279 (quoting 18 U.S.C. § 3742(e) (emphasis in original)). The deference required by Buford was also based on “the fact-bound nature of the legal decision, the comparatively greater expertise of the District Court, and the limited value of uniform court of appeals precedent.” Hardin, 248 F.3d at 493 (quoting Buford, — U.S. at -, 121 S.Ct. at 1281). Hardin concluded that [t]here is greater expertise in the district court, which has experienced many sentencings requiring similar fact-bound determinations — whether the location of certain contraband was connected to the location of the evidence forming the basis for the conviction is one such situation. Finally, we believe that in the instant case, as in Buford, there is “limited value of uniform court of appeals precedent” on the specific factual scenario; [that a firearm is “in connection with” the drugs utilized in another drug offense]. Hardin, 248 F.3d at 493. We conclude that the rationale of Buford, combined with Hardin's analysis in the context of § 2K2.1, calls for a deferential standard of review in the present case. Accordingly, we will review the district court’s application of § 2K2.1 under this standard. B. The district court did not err when it increased Ennenga’s offense level pursuant to § 2K2.1 Section 2K2.1(b)(5) of the United States Sentencing Guidelines instructs a court to increase a" }, { "docid": "22248667", "title": "", "text": "the imposition of this sentence. II. ANALYSIS A. Standard of review When reviewing a district court’s sentencing decisions, we “will disturb the underlying factual findings only if they are clearly erroneous.” United States v. Hill, 79 F.3d 1477, 1481 (6th Cir.1996). Although the application of a guideline to factual situations has, in the past, been subject to de novo review, see id., the Supreme Court’s recent decision in Buford v. United States, 532 U.S. 59, -, 121 S.Ct. 1276, 1281, 149 L.Ed.2d 197 (2001), suggests that our standard of review even with regard to these questions of law should instead be deferential. See United States v. Hardin, 248 F.3d 489, 495 (6th Cir.2001) (declining to decide whether the term “in connection with” under § 2K2.1 was subject to a deferential standard of review, even though “we would be inclined to conclude that under Buford ” such deference is required). In Buford, the defendant challenged the district court’s application of United States Sentencing Guidelines § 4B1.1, in which a court must determine whether a defendant is a career offender. When computing a defendant’s felony history, § 4A1.2 tells the sentencing court to count “related offenses” as a single offense. The question on appeal in Buford was not “any relevant underlying issue of fact. [Buford] disagreed only with the District Court’s legal conclusion that a legal label — ‘functional consolidation’ — failed to fit the undisputed facts.” Buford, — U.S. at-, 121 S.Ct. at 1279. The Supreme Court concluded that this narrow question on appeal requires a “deferential standard of review,” based in part on the wording of the federal sentencing statute, 18 U.S.C. § 3742. This statute commands a reviewing court to “ ‘give due deference to the district court’s application of the guidelines to the facts.’ ” Buford, — U.S. at-, 121 S.Ct. at 1279 (quoting 18 U.S.C. § 3742(e) (emphasis in original)). The deference required by Buford was also based on “the fact-bound nature of the legal decision, the comparatively greater expertise of the District Court, and the limited value of uniform court of appeals precedent.” Hardin, 248 F.3d" }, { "docid": "1993015", "title": "", "text": "significance of case-specific details.’ ” Jackson-Randolph, 282 F.3d at 389 (quoting Buford, 532 U.S. at 65, 121 S.Ct. 1276). We noted further that like the determination at issue in Buford, the question of whether particular conduct constitutes obstruction of justice is a matter within the special competence of district court judges and the conclusion reached on the matter has little precedential value because of the case-specific and fact-bound circumstances. Id. at 389-90. Accordingly, we concluded, “the clear error standard is also appropriate for reviewing sentencing decisions under § 3C1.1 where the sole issue before the district court is a fact-bound application of the guideline provisions.” Id. at 390. See also United States v. Webb, 335 F.3d 534, 537 (6th Cir.2003) (holding that the district court’s application of the guidelines to the facts should not be disturbed unless clearly erroneous); United States v. Lang, 333 F.3d 678, 682 (6th Cir.2003) (holding that we review under the “clearly erroneous” standard the district court’s application of USSG § 3B1.3 where the application is fact-bound); United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001) (noting that Buford “suggests that our standard of review even with regard to these questions of law should instead be deferential,” and holding, in light of the analysis in United States v. Hardin, 248 F.3d 489, 495 (6th Cir.2001), that the district court’s application of USSG § 2K2.1 is to be reviewed deferentially); United States v. Hardin, 248 F.3d 489, 495 (6th Cir.2001) (opining, but not deciding, that Buford’s, deferential standard would apply to review of the district court’s application of USSG § 2K2.1(b)(5)). In light of the reasoning of Buford and the ensuing case law in this circuit, we are satisfied that we must review deferentially, that is, for clear error, the entirety of the district court’s determination that Horn’s prior robbery convictions were not related. Under USSG § 4A1.2, “prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” USSG § 4A1.2," }, { "docid": "22248669", "title": "", "text": "at 493 (quoting Buford, — U.S. at -, 121 S.Ct. at 1281). Hardin concluded that [t]here is greater expertise in the district court, which has experienced many sentencings requiring similar fact-bound determinations — whether the location of certain contraband was connected to the location of the evidence forming the basis for the conviction is one such situation. Finally, we believe that in the instant case, as in Buford, there is “limited value of uniform court of appeals precedent” on the specific factual scenario; [that a firearm is “in connection with” the drugs utilized in another drug offense]. Hardin, 248 F.3d at 493. We conclude that the rationale of Buford, combined with Hardin's analysis in the context of § 2K2.1, calls for a deferential standard of review in the present case. Accordingly, we will review the district court’s application of § 2K2.1 under this standard. B. The district court did not err when it increased Ennenga’s offense level pursuant to § 2K2.1 Section 2K2.1(b)(5) of the United States Sentencing Guidelines instructs a court to increase a defendant’s felony offense by four levels “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense.” Because Ennenga objected to the recommendation of the PSR that § 2K2.1 apply, the district court was required to make findings of fact in order to determine whether or not this guideline is applicable to his sentence. See Fed. R. Crim. P. 32(c)(1). After hearing Ennenga’s argument contesting the application of § 2K2.1, the district court overruled his objections. The court based its decision on several factors. First, the district court pointed to the uncontested fact that Sudgen had no access to the guns due to the locks on the basement door and the locker. Second, the court noted that Ennenga was a paranoid man, infatuated with guns and bombs, who had “holed” himself up in a basement apartment with an alarm system activated at all times. Finally, given the fact that paperwork for a handgun laser sight as well as at least one box of powerful ammunition were found in his bedroom," }, { "docid": "22295583", "title": "", "text": "and refresh his recollection of the events. J.A. at 389, 396. For this limited purpose, of course, the document would not have been introduced into evidence. See United States v. Faulkner, 538 F.2d 724, 727 (6th Cir.), cert. denied, 429 U.S. 1023, 97 S.Ct. 640, 50 L.Ed.2d 624 (1976); 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6184, at 457 (1993). . In certain circumstances, we review the application of a guideline to an undisputed factual situation under a more deferential standard. United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001) (citing Buford v. United States, 532 U.S. 59, 65-66, 121 S.Ct. 1276, 1281, 149 L.Ed.2d 197 (2001)). In Buford, the Supreme Court addressed \"a narrow question of sentencing law” and affirmed the deferential review of a district court's determination as to whether a defendant's prior convictions were consolidated and thus \"related” for sentencing purposes. 121 S.Ct. at 1278. The Buford Court reasoned that deferential review was appropriate \"[i]n light of the fact-bound nature of the legal decision, the comparatively greater expertise of the District Court [in making factual determinations], and the limited value of uniform court of appeals precedent.” Id. at 1281. Because the legal question raised in this case is not so much fact-bound as it is tied to an exposition of fiduciary duties, we are not compelled by Buford’s rationale to review the enhancement of Humphrey’s sentence under a deferential standard. . In United States v. Isaacson, 155 F.3d 1083 (9th Cir.1998), the Ninth Circuit upheld such an application, based on the defendant's additional responsibilities as a vault teller and the fact that the defendant's lengthy service had exempted her from “all of the security checks that other tellers went through.'' Id. at 1085. In United States v. Johnson, 4 F.3d 904 (10th Cir.1993), cert. denied, 510 U.S. 1123, 114 S.Ct. 1082, 127 L.Ed.2d 398 (1994), the Tenth Circuit also upheld the application of the abuse of a position of trust sentencing enhancement to a vault teller, whose responsibilities included ordering weekly shipments of cash, receiving the delivery of the cash," }, { "docid": "22978995", "title": "", "text": "“review[ ] the district court’s factual findings for clear error and its legal conclusions de novo.” Id. However, we also have said that we “accord ‘due deference’ to the district court’s determination that the U.S.S.G. [§ 2K2.1(b)(6) ] enhancement applies.” United States v. Burke, 345 F.3d 416, 426-27 (6th Cir.2003), cert. denied, 541 U.S. 966, 124 S.Ct. 1731, 158 L.Ed.2d 412 (2004); accord United States v. Heighton, 272 Fed.Appx. 469, 472 (6th Cir.2008) (unpublished decision). When the specific issue on appeal is whether the government has established a nexus between the firearm and an independent felony, we have applied the de novo, clear error, and due deference standards of review. Compare, e.g., United States v. McKenzie, 410 Fed.Appx. 943, 944-45 (6th Cir.2011) (unpublished decision) (de novo), and United States v. Bullock, 526 F.3d 312, 315-16 (6th Cir.2008) (de novo), with United States v. Rogers, 594 F.3d 517, 522 (6th Cir.2010) (clear error), and United States v. Richardson, 510 F.3d 622, 628 (6th Cir. 2007) (clear error), cert. denied, 553 U.S. 1013, 128 S.Ct. 2072, 170 L.Ed.2d 809 (2008), with United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001) (due deference). In United States v. Hardin, 248 F.3d 489 (6th Cir.), cert. denied, 534 U.S. 920, 122 S.Ct. 271, 151 L.Ed.2d 199 (2001), we set forth the circuit’s general rule that we review factual findings for clear error and legal questions, including whether to apply the § 2K2.1(b)(6) enhancement, de novo. Id. at 492-93 (quoting United States v. Hill, 79 F.3d 1477, 1481 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996)). But we also questioned, without deciding, the impact of the Supreme Court’s decision in Buford v. United States, 532 U.S. 59, 66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), which set forth a deferential standard of review for the fact-bound legal question of whether a defendant’s prior convictions were “related” for purposes of sentencing. Hardin, 248 F.3d at 493-95. In Ennenga, 263 F.3d at 502, we answered the question left open in Hardin, concluding that the “due deference” standard from Buford should be" }, { "docid": "22212046", "title": "", "text": "States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), changes our prior analyses of the appropriate standard of review of the § 3C1.1 enhancement. In Buford, the Court unanimously held that a court of appeals should review a district court’s application of U.S.S.G. § 4B1.2 “deferentially” rather than de novo. Id. at 1280. The Court based its conclusion in part on 18 U.S.C. § 3742, which calls for “due deference” to a district court’s application of the sentencing guidelines to the facts. Id. at 1279 (quoting 18 U.S.C. § 3742(e)). The Court then gave three reasons to support a deferential standard: the district courts’ expertise and experience in applying sentencing provisions, the fact-specific nature of such determinations, and the “limited value of uniform court of appeals precedent” on a particular factual scenario. Id. at 1280-81. In United States v. Hardin, 248 F.3d 489 (6th Cir.2001), the court concluded that this reasoning applies to § 2K2.1(b)(5), the sentencing guideline at issue in that case. Id. at 493-94. See also United States v. Paul, 274 F.3d 155 (5th Cir.2001)(applying the Buford analysis and using deferential standard in reviewing district court’s application of U.S.S.G. § 2G2.2). The Court’s reasoning and decision in Buford lead us to conclude that a deferential standard of review is appropriate in reviewing applications of § 3C1.1 as well. First, like determinations of whether gun possession was “in connection with” another felony offense or whether felony convictions are “related,” the determination of whether a set of facts constitutes obstruction of justice is a fact-bound decision. As the Court noted in Buford, “factual nuance may closely guide the legal decision, with legal results depending heavily upon an understanding of the significance of case-specific details.” Buford, 121 S.Ct. at 1280. Second, the district court has a “special competence” in making such sentencing determinations. Hardin, 248 F.3d at 494. District courts are required to make sentencing determinations on a regular basis and see and hear numerous varia tions on the same crime or theme to which they must apply the Guidelines. Third, as stated in Buford, there is limited value" }, { "docid": "23168738", "title": "", "text": "before the district court which sentenced Hardin was very similar to the one before the district court in Buford: “Buford argues that the nature of the question presented here— applying a Sentencing Guidelines term to undisputed facts — demands no deference at all.” Id. The Supreme Court disagreed, unanimously. A similar situation is present in the instant case — applying guideline § 2K2.1(b)(5) “in connection with,” to undisputed facts. Indeed, the correlation between the relevant terms in each case is close to identical: “in connection with,” and “related.” Accordingly, we would be inclined to conclude that under Buford, the proper standard of review of the district court guideline determination in this case would be deferential rather than de novo. However, since Buford was decided after oral argument in the instant case, and therefore the parties were not afforded an opportunity to brief and argue this issue, we will not decide the specific applicable standard of review, because under either standard of review, de novo or deferential, Hardin cannot establish that the district court’s application of the enhancement under § 2K2.1(b)(5) was improper. DISCUSSION Because Defendant challenged the application of the four level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5), the district court was required to make the following determination: Under Fed.R.Crim.P. 32(C)(1), the sentencing court is required to either make a finding on each matter controverted or determine that no finding is necessary because the matter will not affect sentencing. This Court requires literal compliance with Rule 32(C)(1). United States v. Hurst, 228 F.3d 751, 760 (6th Cir.2000). Guideline § 2K2.1(b)(5) provides that “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense,” his base offense level should be increased by four levels. This section can only apply if the Government establishes by a preponderance of the evidence that the defendant possessed or used a gun in connection with another felony. The PSR states in paragraph 25: In the present offense, the defendant was also charged with Distribution of Cocaine Hydrochloride and Possession with the Intent to Distribute Cocaine Hydrochloride. Since the drugs and the" }, { "docid": "22212048", "title": "", "text": "in uniform precedent in case-specific, fact-bound circumstances such as these. The question of whether conduct amounts to obstruction of justice “grows out of, and is bounded by, case-specific detailed factual circumstances,” and appellate court precedent would only provide minimal help in making such determinations. Buford, 121 S.Ct. at 1281. What deference is due? While the Court in Buford cites case law employing an abuse-of-discretion standard, the Court’s comment was made in the context of justifying its move away from a de novo standard based on the competence of district courts. Id. at 1280 (citing Koon v. United States, 518 U.S. 81, 98-99, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996)). The decision from the Seventh Circuit which the Court affirmed, however, had concluded that clear error was the appropriate deferential standard. United States v. Buford, 201 F.3d 937, 942 (7th Cir.2000). See Malachinski v. C.I.R., 268 F.3d 497, 511-12 (7th Cir.2001)(Posner, J., concurring)(citing the Supreme Court’s Buford decision for clear error standard when reviewing a district court’s application of a sentencing guideline). It is well-settled that we overturn a court’s factual findings in regard to the Sentencing Guidelines only if they are clearly erroneous. United States v. Brawner, 173 F.3d 966, 971 (6th Cir.1999). We conclude that the clear error standard is also appropriate for reviewing sentencing decisions under § 3C1.1 where the sole issue before the district court is a fact-bound application of the guideline provisions. B Applying the above standard of review, we find that the district court did not commit clear error in finding obstruction of justice. The government’s theory, which the district court accepted without further comment, reasonably infers that the execution of search warrants put Jackson-Randolph on notice of her impending indictment and that the administrative ruling on MAJCO’s participation in the advance pay program further alerted her to that possibility. These two events, which took place only a few months before the execution of the quitclaim deeds, are enough to support an inference that Jackson-Randolph, a lawyer, knew she would be criminally investigated in connection with her fraud scheme at MAJCO. That Jackson-Randolph was" } ]

[ { "docid": "22407197", "title": "", "text": "Rajchman does not teach a memory for displaying data in data frames pertaining to a desired pattern. R.D. finding of fact 61. The presumption of validity of claim 12 is thus weakened by the failure of the examiner to consider the most relevant pri- or art — the Rajchman patent — but it is not overcome. Id. 59, 63. There are differences between claim 12 and Rajchman. Moreover, respondents adduced little or no evidence that claim 12 would have been obvious to one skilled in the art at the time. Id. 62-63. In the absence of clear and convincing evidence of invalidity, doubt must be resolved in favor of the patentee. We therefore find claim 12 of the ’762 patent valid. 213 USPQ at 480 (emphasis added). Contrary to the Commission’s statement, the presumption of validity was not altered by introduction of Rajchman, even though it was more relevant prior art. The presumption of validity afforded by 35 U.S.C. § 282 does not have independent evidentiary value. Rather the presumption places the burden of going forward, as well as the burden of persuasion, upon the party asserting invalidity. Solder Removal Co. v. USITC, 582 F.2d 628, 199 USPQ 129, 133 (CCPA 1978). We do not agree that the presumption is affected where prior art more relevant than that considered by the examiner is introduced. Rather the offering party is more likely to carry its burden of persuasion with such evidence. Solder Removal Co. v. USITC, 582 F.2d at 632-33, 199 USPQ at 133. With respect to the Commission’s statement that there must be “clear and convincing evidence of invalidity ” (our emphasis), we find it inappropriate to speak in terms of a particular standard of proof being necessary to reach a legal conclusion. Standard of proof relates to specific factual questions. While undoubtedly certain facts in patent litigation must be proved by clear and convincing evidence, Radio Corp. v. Radio Laboratories, 293 U.S. 1, 54 S.Ct. 752, 78 L.Ed. 1453 (1934), the formulation of a legal conclusion on validity from the established facts is a matter reserved for the court." } ]

[ { "docid": "22975647", "title": "", "text": "the claim scope does not disturb that determination. Validity of the ’532, ’345, ’726, and ’911 patents VSI challenges the validity of all four Magnivision patents under 35 U.S.C. § 103. Specifically, VSI asserts that these patents are obvious in light of U.S. Patent No. 3,738,034 (the Seaver patent) or the 1984 B & G catalog and the knowledge of one of ordinary skill in the art. VSI also asserts obviousness based on the Rosen patent (U.S. Patent No. 3,291,300), the Pa-eelli patent (U.S. Patent No. 3,116,529), and German Design Patent No. G 8,212,-306.3 U1 (the German patent). On appeal, VSI particularly urges that the Cool-Ray catalogs (which depict the commercial embodiment of the Seaver patent), when viewed with the knowledge of one of ordinary skill in the art, render all of the disputed claims invalid for obviousness. The jury considered and rejected VSI’s claims of invalidity. Although the determination of obviousness is ultimately a legal conclusion, it rests on underlying factual determinations. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ 459, 467 (1966). Issued patents have a strong presumption of validity in infringement proceedings. See 35 U.S.C. § 282 (1994). Hence, an accused infringer who defends on grounds of patent invalidity bears the burden of showing patent invalidity by clear and convincing evidence. See Monarch Knitting Mach. v. Sulzer Moral Gmbh, 139 F.3d 877, 881, 45 USPQ2d 1977, 1981 (Fed.Cir.1998). In a challenge based on obviousness under 35 U.S.C. § 103, the person alleging invalidity must show prior art references which alone or combined with other references would have rendered the invention obvious to one of ordinary skill in the art at the time of invention. See Dennison Mfg. Co. v. Panduit Corp., 475 U.S. 809, 810, 106 S.Ct. 1578, 89 L.Ed.2d 817, 229 USPQ 478, 479 (1986); Rockwell Int’l Corp. v. United States, 147 F.3d 1358, 1364, 47 USPQ2d 1027, 1032 (Fed.Cir.1998). The “presumption of validity under 35 U.S.C. § 282 carries with it a presumption that the Examiner did his duty and knew what claims he was" }, { "docid": "8934601", "title": "", "text": "success, long-felt need and acquiescence are also relevant to the issue of validity. Graham, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. E. Presumption of validity and burden of proof Section 282, 35 U.S.C. creates a presumption that a patent is valid and imposes the burden on the attacker to prove invalidity by clear and convincing evidence. Hughes Tool Co. v. Dresser Indus., Inc., 816 F.2d 1549, 2 U.S.P.Q.2d 1396 (Fed.Cir.), cert. denied, — U.S. -, 108 S.Ct. 261, 98 L.Ed.2d 219 (1987); Lindemann Maschinenfabrik GmbH v. American Hoist & Derrick Co., 730 F.2d 1452, 1459, 221 U.S.P.Q. 481, 486 (Fed.Cir.1984). That burden remains upon the party asserting invalidity until final decision. Jones v. Hardy, 727 F.2d 1524, 220 U.S.P.Q. 1021 (Fed.Cir.1984) “Introduction of more pertinent art than that considered by the examiner does not ... weaken or destroy the presumption. Nor does such introduction ‘shift’ the basic burden of persuasion_ Such introduction can, of course, facilitate the challenger’s carrying of that burden.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 U.S.P.Q. 871, 875-76 (Fed.Cir.1983). “[The effect] of new prior art [not before the PTO] ... is to eliminate or at least reduce, the element of deference due the PTO, thereby partially, if not wholly, discharging the attacker’s burden....” Kimberly-Clark v. Johnson & Johnson, 745 F.2d 1437, 1443, 223 U.S.P.Q. 603, 606 (Fed.Cir.1984) (quoting American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1358-60, 220 U.S.P.Q. 763, 770-71 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984)); see also EWP Corp. v. Reliance Universal, Inc., 755 F.2d 898, 905, 225 U.S.P.Q. 20, 24 (Fed.Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 181, 88 L.Ed.2d 108 (1985) (When no PTO view on obviousness is before the court, the patent challenger’s burden of proof under 35 U.S.C. § 282 is more easily carried.) The introduction of more pertinent prior art requires the party supporting validity to come forward with countervailing evidence. Stratoflex, 713 F.2d at 1534, 218 U.S.P.Q. at 875-76. “In the end, the question is whether all the evidence establishes" }, { "docid": "14773269", "title": "", "text": "applicant than was required by the PTO. The record provides no support for Kelley's argument that Rite-Hite \"quite likely\" took a position before the PTO contrary to its present position. Nor is there support for Kelley's argument that the scope of the claims must be restricted merely because Rite-Hite followed the examiner's instructions and did not file a separate interview summary. Having been shown no clear error in the factual findings of the district court, and discerning no error of law, we affirm that Kelley has not proven the `847 patent invalid. II The burden of proving infringement by a preponderance of the evidence is on the person asserting the patent right. Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1361, 219 U.S.P.Q. 473, 480 (Fed.Cir.1983). Determination of infringement of claims written in means-plus-function form is governed by 35 U.S.C. § 112 paragraph 6, which states that \"such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.\" The patent specification, other claims in the patent, the prosecution history, and expert testimony may be considered in ascertaining claim scope under section 112. See King Instrument Corp. v. Otari Corp., 767 F.2d 853, 862, 226 U.S.P.Q. 402, 408 (Fed.Cir.1985), cert. denied, - U.S. -, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986); Palumbo v. Don-Joy Co., 762 F.2d 969, 975, 226 U.S.P.Q. 5, 8 (Fed.Cir.1985). Kelley argues that if the patent claims are construed sufficiently narrowly to preserve their validity in view of the Taylor reference, then the claims also exclude and can not be infringed by the Kelley device. This argument appears to be based in part on Kelley's position, which was not accepted by the district court, that the only element of the `847 claims that could be distinguished from the Taylor reference is the \"third means\" of claim clause (d). Looking specifically at the \"third means\", Taylor teaches the use of a meshed nut-and-screw assembly for raising and lowering Taylor's hook assembly. Kelley argues that this is a direct mechanical analog of Kelley's rack-and-pinion mechanism, and that both these" }, { "docid": "8934600", "title": "", "text": "in determining whether a claimed invention would have been obvious is what the combined teachings of the references would have suggested to one of ordinary skill in the art.) Factors relevant to that test are: (a) the scope and content of prior art; (b) the differences between the prior art and the patented design; and (c) the level of ordinary skill in the art at the time the invention was made. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 556, 148 U.S.P.Q. 459, 467 (1966); Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1441-43, 221 U.S.P.Q. 97, 108 (Fed.Cir.1984). Obviousness is not established by “combining the teachings of prior art to produce the claimed invention, absent some teaching or suggestion that the combination be made.” In re Stencel, 828 F.2d 751, 4 U.S.P.Q.2d 1071 (Fed.Cir.1987); Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1143, 227 U.S.P.Q. 543, 551 (Fed.Cir.1985); In re Corkill, 771 F.2d 1496, 1501-02, 226 U.S.P.Q. 1005, 1009-10 (Fed.Cir.1985). Secondary considerations such as commercial success, long-felt need and acquiescence are also relevant to the issue of validity. Graham, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. E. Presumption of validity and burden of proof Section 282, 35 U.S.C. creates a presumption that a patent is valid and imposes the burden on the attacker to prove invalidity by clear and convincing evidence. Hughes Tool Co. v. Dresser Indus., Inc., 816 F.2d 1549, 2 U.S.P.Q.2d 1396 (Fed.Cir.), cert. denied, — U.S. -, 108 S.Ct. 261, 98 L.Ed.2d 219 (1987); Lindemann Maschinenfabrik GmbH v. American Hoist & Derrick Co., 730 F.2d 1452, 1459, 221 U.S.P.Q. 481, 486 (Fed.Cir.1984). That burden remains upon the party asserting invalidity until final decision. Jones v. Hardy, 727 F.2d 1524, 220 U.S.P.Q. 1021 (Fed.Cir.1984) “Introduction of more pertinent art than that considered by the examiner does not ... weaken or destroy the presumption. Nor does such introduction ‘shift’ the basic burden of persuasion_ Such introduction can, of course, facilitate the challenger’s carrying of that burden.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 U.S.P.Q." }, { "docid": "10903888", "title": "", "text": "some metaphysical doubt as to the material facts.” 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) (internal citation omitted). The non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(c). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Inds. Co., Ltd., 475 U.S. at 587, 106 S.Ct. 1348 (internal citation omitted). Accordingly, a mere scintilla of evidence in support of the non-moving party is insufficient for a court to deny summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. Patent Validity When a party challenges a patent’s validity, the starting point for analyzing that challenge is the statutory presumption of validity. See 35 U.S.C. § 282 (“A patent shall be presumed valid.”). Accordingly, “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” Id. Invalidity must be shown by clear and convincing evidence. Robotic Vision Sys. v. View Eng’g, Inc., 189 F.3d 1370, 1377 (Fed.Cir.1999). This presumption of validity is never weakened, and the burden of proving invalidity does not shift from the party asserting invalidity. Imperial Chem. Indus., PLC v. Danbury Pharmacol, Inc., 745 F.Supp. 998, 1004 (D.Del.1990) (citing ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1574-75 (Fed.Cir.1984) (other citations omitted)). The burden of going forward with evidence rebutting invalidity may shift to the patentee only after the party asserting invalidity has demonstrated a legally sufficient prima facie case of invalidity. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 291 (Fed.Cir.1985) (internal citations omitted). If the party asserting invalidity has established a legally sufficient case of invalidity, the court then examines all of the evidence of invalidity together with all of the evidence rebutting invalidity, and determines whether there is clear and convincing evidence of invalidity. Id. at 291-92. B." }, { "docid": "23097791", "title": "", "text": "1567, 1573, 220 USPQ 584, 589 (Fed.Cir.1984). In short, such errors as may be demonstrated must have further been harmful. See 28 U.S.C. § 2111. Accord Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573, 1580, 219 USPQ 8, 12 (Fed.Cir.1983). C. Burdens of Proof The burdens of demonstrating the absence of genuine issues of material fact and the entitlement to judgment as a matter of law is upon the summary judgment movant, Genmark. Cooper, 748 F.2d at 679, 223 USPQ at 1288. In this instance, as Genmark is also the party asserting the invalidity of a United States patent, the burden of demonstrating an entitlement to judgment as a matter of law includes the burden of overcoming the presumption of patent validity found in 35 U.S.C. § 282. Cable claims that, despite explicit mention by the district court, the presumption of validity was not observed. The presumption of section 282 is “a procedural device which places on a party asserting invalidity the initial burden of going forward to establish a prima facie case on that issue.” Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 885, 221 USPQ 1025, 1028 (Fed.Cir.1984). While “the burden of persuasion on the issue of invalidity also rests throughout the litigation with the party asserting invalidity,” id., if evidence is presented establishing a prima facie case of invalidity, the opponent of invalidity must come forward with evidence to counter the prima facie challenge to the presumption of section 282. This requirement is in no way contrary to the procedural role of the presumption of validity. Nor does it in substance shift the burden of persuasion on the issue. “In the end, the question is whether all the evidence establishes that the validity challenger so carried his burden as to have persuaded the decisionmaker that the patent can no longer be accepted as valid.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530 at 1534, 218 USPQ at 876 (Fed.Cir.1983). Likewise, on a motion for summary judgment, the burden is upon the movant in support thereof to demonstrate an absence of genuine issues of material fact and" }, { "docid": "22202517", "title": "", "text": "compositions that rapidly cure anaerobically with heat. We decline to make a final conclusion now because the district court may, on remand, want to take additional evidence (if it wishes) and make additional findings underlying the question of prosecution histo ry estoppel with respect to both transition metal and heat. B. Validity of ’400 In holding the ’400 patent invalid under 35 U.S.C. § 103, the district court committed these legal errors: (1) the court appeared to have ignored the statutory presumption of validity; (2) the court made insufficient Graham findings; (3) the court gave questionable weight to objective evidence of nonobviousness; and (4) the court failed to consider the claimed process as a whole, inasmuch as it relied primarily on the Board decision respecting another invention as evidence of obviousness. Consequently, we vacate the holding of invalidity, and remand for further proceedings. 1. Presumption of Validity A patent is presumed valid. 35 U.S.C. § 282. The burden is on the party asserting invalidity to prove it with facts supported by clear and convincing evidence. SSIH Equipment, S.A. v. USITC, 718 F.2d 365, 375, 218 USPQ 678, 687 (Fed.Cir.1983). Though the district court “believe[d] there is clear evidence to support a finding of obviousness,” there is no indication in the district court’s opinion that it recognized the statutory presumption of validity, that the burden was on Ultraseal to overcome the presumption, or that Ultra-seal actually carried its burden. Recognition of the presumption is particularly important here, where the district court acknowledged that the obviousness question was “close.” Cf. Panduit Corp. v. Dennison Manufacturing Co., 774 F.2d 1082, 1097 (Fed.Cir.1985) (“The court’s uncertainty should have, in view of § 282, ended the obviousness inquiry.”) 2. Graham Findings Obviousness under 35 U.S.C. § 103 is a question of law based on the underlying factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 148 U.S.P.Q. 459, 467 (1966): (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; (3) the" }, { "docid": "23311898", "title": "", "text": "that “Dr. Brucker’s experiments in laser marking contact lenses' are further evidence in support of this court’s finding of obviousness.” The court further concluded that scanning electron microscope (SEM) photographs, showing “that the surface of these lenses surrounding the laser mark are not ‘smooth and unsublimated’ or ‘unaffected’ as those terms were defined by plaintiff [appellant] during the processing of the patent in suit,” demonstrated lack of infringement in any case. Bausch & Lomb appealed. Opinion The judgment is premised on several legal errors: (1) disregard of the presumption of validity established by 35 U.S.C. § 282; (2) absence of the factual findings on the four inquiries mandated by Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693-94; 15 L.Ed.2d 545, 148 USPQ 459, 467 (1966); and (3) improper claim construction leading to the conclusion of noninfringement. We vacate the court’s opinion and remand for a determination consistent with this opinion. 1. Presumption of Validity A patent shall be presumed valid, and each claim shall be presumed valid independently of the validity of other claims. 35 U.S.C. § 282. The burden is on the party asserting invalidity to prove it with facts supported by clear and convincing evidence. Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 872, 228 USPQ 90, 97 (Fed.Cir.1985); Jones v. Hardy, 727 F.2d 1524, 220 USPQ 1021 (Fed.Cir.1984). The record contains no reference to this statutory presumption of validity, nor does it appear that the . district court considered separately the validity of the three claims at issue. By merely holding that “defendants have proved by clear and convincing evidence that the patent in suit (4,194,814) and each of its claims is invalid and therefore void,” the district court improperly denied the ’814 patent its statutory presumption of validity as to each claim. The district court thought the examiner had been misled. Barnes-Hind argued and argues here that Bausch & Lomb (or rather its later acquired company Milton Roy) misled the examiner during prosecution. Appellees assert that “if the examiner had been correctly and forthrightly informed of Hager’s and McCandless’ opinions, the" }, { "docid": "12472325", "title": "", "text": "means of a diagonal shift block arrangement. III.Validity It is a well established and codified rule that a United States patent is presumed valid, and one attacking the validity has the burden of proving invalidity by clear and convincing evidence. 35 U.S.C. § 282; Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1270, 225 U.S.P.Q. 345 (Fed.Cir.1985); Atlas Powder Co. v. E.I. du Pont De Nemours & Co., 750 F.2d 1569, 1573, 224 U.S.P.Q. 409 (Fed.Cir.1984). The validity of the ’153 Patent has been previously challenged and affirmed by the Federal Circuit. King Instrument Corp. v. Otari Corp., 767 F.2d 853, 226 U.S.P.Q. 402 (Fed.Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986). In Otari, the defendant challenged the validity of the ’153 Patent under 35 U.S.C. §§ 102 and 103. After considering all the relevant prior art, the district court found that the invention claimed in the ’153 Patent was not anticipated by the prior art, and also ruled that the differences between the prior art and the claimed subject matter as a whole would not have been obvious to one of ordinary skill in the tape winding art in 1969. The Federal Circuit Court affirmed. See Otari, 767 F.2d at 857. This Court declines to reopen the issue of validity of the ’153 Patent on the ground of prior art where the Federal Circuit has acted and where additional evidence beyond that examined in Otari was de minimus. IV. Infringement The plaintiff has the burden of proof to establish by a preponderance of the evidence that the accused machines have infringed various claims of the ’153 Patent, the ’461 Patent and the ’123 Patent. A. Literal The test for literal infringement has two aspects. First, the language of the claim in issue must be interpreted by the court as a matter of law. Second, the trier of fact must determine whether the language describes, or “reads on,” an accused product. See Standard Oil Co. v. American Cyanamid Co. 774 F.2d 448, 452, 227 U.S.P.Q. 293 (Fed.Cir.1985). The accused product is not compared with" }, { "docid": "11593869", "title": "", "text": "’876 Patent. Claim 3 is therefore literally infringed. 7. Cryo-Trans has satisfied its burden of proof in establishing by a preponderance of evidence that the GATC ARCTICAR literally inflinges Claims 1, 2 and 3 of the ’876 Patent. Alternatively, Cryo-Trans has established that the GATC ARCTICAR infringes the ’876 Patent under the doctrine of equivalents. 8. A patent is presumed valid, 35 U.S.C. § 282. The presumption of validity afforded by § 282 places the burden of persuasion by clear and convincing evidence, upon the party asserting invalidity. SSIH Equip. S.A v. United States Int’l Trade Comm’n, 718 F.2d 365, 375 (Fed.Cir.1983). 9. When all the various terms of a patent claim read directly on an item of prior art, then the prior art “anticipates” the claim and the patent claim is invalid under 35 U.S.C. § 102. 10. When a party asserts that pri- or use or knowledge of an item by others is prior art, it must be shown that the use was of a complete and operable product that was reduced to practice. See 1 Chisum, Patents, § 305[2], at 3-80; Medtronic, Inc. v. Daig Corp., 611 F.Supp. 1498, 227 U.S.P.Q. 509, 515 (D.Minn.1985), aff'd, 789 F.2d 903 (Fed. Cir.), cert. denied, 479 U.S. 931, 107 S.Ct. 402, 93 L.Ed.2d 355 (1986). Once the earlier invention has been sufficiently tested to demonstrate that it will work for its intended purpose, the earlier invention is considered reduced to practice. Atlantic Thermoplastics Co., Inc. v. Faytex Corp., 5 F.3d 1477, 1480 (Fed.Cir.1993). 11. In order to be patentable an invention must not be obvious to a person of ordinary skill in the art at the time the invention was made. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Pursuant to 35 U.S.C. § 103, a patent claim 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" }, { "docid": "23045131", "title": "", "text": "these bug-deflecting shields reduced drag. Several articles and textbooks (see footnote 5, infra) discussing the aerodynamics of airflow resistance were also cited by the district court. One general aerodynamic principle described in these publications is “shielding” (also referred to as “favorable interference”), i.e., the use of a smaller cross-sectional deflector in front of a larger surface, which effects a reduction of drag. OPINION A. Validity A patent is presumed valid and the burden of establishing invalidity rests on the party asserting such invalidity. 35 U.S.C. § 282 (1982). This presumption may be rebutted only by clear and convincing evidence. American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1360, 220 U.S.P.Q. 763, 771 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41, 224 U.S.P.Q. 520 (1984). The burden of proof is not reduced when prior art is presented to the court which was not considered by the PTO. Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1549, 220 U.S.P.Q. 193,199 (Fed.Cir.1983). However, reliance upon such art when that art is more pertinent than the art considered by the PTO may facilitate meeting the burden of proving invalidity. W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 U.S.P.Q. 303, 313 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). Obviousness under 35 U.S.C. § 103 is a legal conclusion involving a preliminary determination of four factual inquiries: (1) the scope and content of the prior art; (2) the differences between the claims and the prior art; (3) the level of ordinary skill in the pertinent art; and (4) secondary considerations, if any, of nonobviousness. Secondary considerations include objective in-dicia of nonobviousness such as commercial success, long-felt but unsolved need, and failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545, 148 U.S.P.Q. 459, 467 (1966); Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1566-68, 1 U.S.P.Q.2d 1593, 1596-97 (Fed.Cir.), cert. denied, — U.S. -, 107 S.Ct. 2187, 95 L.Ed.2d 843 (1987). The factual findings of" }, { "docid": "18744232", "title": "", "text": "combination. W.L. Gore, 721 F.2d at 1552, 220 USPQ at 312. It is legal error to place this burden on the patentee. A.2 35 U.S.C. § 282 Further, if this statement is interpreted to place upon the patentee the burden of establishing the validity of his patents, it is at odds with established case law. Section 282 of Title 35 places the burden for the initial production of evidence, Stratoflex, 713 F.2d at 1534, 218 USPQ at 875, and the ultimate burden of persuasion on the issue of validity on the party asserting patent invalidity. Hughes Aircraft, 717 F.2d at 1359, 219 USPQ at 478; Stratoflex, 713 F.2d at 1534, 218 USPQ at 875. While the burden for the production of evidence shifts to the patentee once a prima facie case of invalidity is established, Ralston Purina, at 5; Piasecki, 745 F.2d at 1472, 223 USPQ at 788, the ultimate burden remains with the party asserting invalidity, in this instance Delta, to establish that the claims of the patents here at issue are invalid. There is no burden on Ashland to establish that the claims of these patents are valid, and it is impermissible for a trial court to shift this burden to the patentee. Jones, 727 F.2d at 1528-29, 220 USPQ at 1025. A.3 Evidence vis-a-vis Obviousness The court also held that Ashland’s evidence was insufficient to rebut Delta’s clear and convincing evidence on the obviousness of claim 10 of the ‘797 patent. While on this record we cannot say that this holding by the district court was erroneous, it is open to an interpretation at odds with the established case law, and for this reason we set forth a brief explication of the relevant legal principles. All facts relevant to the issue of obviousness, both the facts established by the party asserting invalidity and the facts established by the rebuttal evidence submitted by the patentee, must be fully considered by the court prior to reaching its conclusion on obviousness. W.L. Gore, 721 F.2d at 1555, 220 USPQ at 314; Stratoflex, 713 F.2d at 1539, 218 USPQ at 879." }, { "docid": "18744227", "title": "", "text": "(2) the level of ordinary skill in the art; (3) the differences between the claimed subject matter and the prior art; and (4) where relevant, objective evidence of nonobviousness, e.g., long-felt need, commercial success, failure of others, copying, unexpected results, i.e., the secondary considerations. Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894, 221 USPQ 669, 674 (Fed.Cir.1984); Jones v. Hardy, 727 F.2d 1524, 1527, 220 USPQ 1021, 1023 (Fed. Cir.1984); W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1550, 220 USPQ 303, 311 (Fed.Cir.1983), cert. denied, - U.S. -, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). These factual findings serve as the foundation upon which the court bases its ultimate conclusion regarding the obviousness of the claimed subject matter as a whole. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 890, 221 USPQ 1025, 1033 (Fed.Cir.1984). This court reviews the ultimate conclusion of obviousness as one of law on which it must exercise independent judgment. Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1573, 220 USPQ 584, 589 (Fed.Cir.1984). A patent is presumed valid, and the burden of establishing invalidity as to any claim of a patent rests upon the party asserting such invalidity. 35 U.S.C. § 282 (1982). The presumption of validity is a procedural device that mandates that the party asserting invalidity bears the initial burden of establishing a prima facie case of obviousness under 35 U.S.C. § 103. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed. Cir.1983). Once a prima facie case has been established, the burden shifts to the patentee to go forward with rebuttal evidence showing facts supporting nonobviousness. Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573 (Fed.Cir.1985); accord, In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed.Cir.1984). The party asserting invalidity, however, always retains the burden of persuasion on the issue of obviousness until a final judgment is rendered. Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1359, 219 USPQ 473, 478 (Fed.Cir.1983); Stratoflex, 713 F.2d at 1534, 218 USPQ at 875. Each fact forming" }, { "docid": "2850604", "title": "", "text": "over the years (as shown in the whole of the prior art references). It also had to ignore the testimony of Dennison’s own deposition witnesses. Dennison’s chief engineer, Jack Stewart, said “the design of these ties is not as simple as it may appear on the surface.” Stewart also said Denni-son’s research program was “tantalizingly close to success on many occasions.” Den-nison’s senior engineer, Joyce, said “a good tie is a damn difficult thing to design, extremely difficult.” Properly evaluated, the prior art in this case confirms the non-obviousness of the claimed inventions in suit. The misevaluation applied here was of such nature as to destroy any patent. It was plain error. (4) The Role of the Court Patents are born valid. 35 U.S.C. § 282; Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1270, 225 USPQ 345, 347 (Fed.Cir.1985). It is not, therefore, a required role of a court, in a suit for patent infringement, to declare patents valid. Nor is it the court’s role to start from scratch, as a surrogate Examiner, to referee de novo a dispute on the validity question. Though that procedure would render the Patent and Trademark Office (PTO) unnecessary, it was essentially followed here. As above indicated, courts are clearly not bound by the events in the PTO or by its decisions. Fromson v. Advance Offset Plate, Inc., 755 F.2d at 1555, 225 USPQ at 31. On the other hand, there is no point or value in, and no warrant for, proceeding as though nothing happened before suit except the naked issue of a patent. The statute mandating a presumption of validity, 35 U.S.C. § 282, places the burden of proving facts compelling a conclusion of invalidity on the party asserting invalidity. This court has said the burden of proving facts compelling a conclusion of patent invalidity must be carried by clear and convincing evidence. SSIH Equipment, S.A. v. U.S. Intern. Trade Comm’n, 718 F.2d 365, 375, 218 USPQ 678, 687 (Fed.Cir.1983). The role of the court is to determine whether the validity challenger carried that burden. If the court determines that" }, { "docid": "23045146", "title": "", "text": "a hindsight analysis in determining that the claimed invention would have been obvious and did not properly analyze and consider secondary indicia of nonob-viousness. Accordingly, that portion of the judgment holding that the ’876 patent is invalid is reversed. B. Infringement (1) Literal Infringement Literal infringement requires that every limitation of the patent claim must be found in the accused device. Mannesmann Demag Corp. v. Engineered Metal Products Co., 793 F.2d 1279, 1282, 230 U.S.P.Q. 45, 46 (Fed.Cir.1986). The party alleging infringement, in this case Rudkin-Wiley, has the burden of proving infringement by a preponderance of the evidence. Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1361, 219 U.S.P.Q. 473, 480 (Fed.Cir.1983). “Analysis of patent infringement involves two inquiries: determination of the scope of the claims ... followed by determination of whether properly interpreted claims encompass the accused structure.” Mannesmann Demag Corp. v. Engineered Metal Products Co., 793 F.2d at 1282, 230 U.S.P.Q. at 46. “Claim construction is reviewed as a matter of law. Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569, 219 U.S.P.Q. 1137, 1140 (Fed.Cir.1983). However, interpretation of a claim may depend on evidentiary material about which there is a factual dispute, requiring resolution of factual issues as a basis for interpretation of the claim. See Moeller v. Ionetics, Inc., 794 F.2d 653, 656, 229 U.S.P.Q. 992, 995 (Fed.Cir.1986); Palumbo v. Don-Joy Co., 762 F.2d 969, 974, 226 U.S.P.Q. 5, 8 (Fed.Cir.1985).” H.H. Robertson Co. v. United Steel Deck, Inc., 820 F.2d 384, 389, 2 U.S.P.Q.2d 1926, 1929 (Fed.Cir.1987). The question of literal infringement (do the claims read on the accused device) is determined as a factual inquiry and is reviewed on a clearly erroneous standard. Loctite Corp. v. Ultraseal Ltd., 781 F.2d at 866, 228 U.S.P.Q. at 93. (a) Claim 2 It is established in patent law that “[wjhere some claims are broad and others narrow, the narrow claim limitations cannot be read into the broad whether to avoid invalidity or to escape infringement.” D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1574, 225 U.S.P.Q. 236, 239 (1985) (quoting Deere & Co. v." }, { "docid": "8771362", "title": "", "text": "of the non-moving party is insufficient for a court to deny summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 1. Patent Infringement A patent infringement analysis involves two steps: claim construction and then the application of the construed claim to the accused process or product. Markman, 52 F.3d at 976. The first step, claim construction, has been held to be purely a matter of law. Cybor, 138 F.3d at 1454-56. The second step, application of the claim to the accused product, is a fact-specific inquiry. See Kustom Signals, Inc. v. Applied Concepts, Inc., 264 F.3d 1326, 1332 (Fed.Cir.2001) (Patent infringement, “whether literal or under the doctrine of equivalents, is a question of fact.”). The patent owner has the burden of proving infringement by a preponderance of the evidence. Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 758 (Fed.Cir.1984) (cit ing Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1361 (Fed.Cir.1983)). Summary judgment is appropriate in patent infringement suits when it is apparent that only one conclusion regarding infringement could be reached by a reasonable jury. See Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed.Cir.2001). 2. Patent Invalidity When a party challenges a patent’s validity, the starting point for analyzing that challenge is the statutory presumption of validity. See 35 U.S.C. § 282 (“A patent shall be presumed valid.”). Accordingly, “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” Id. Invalidity must be shown by clear and convincing evidence. Robotic Vision Sys. v. View Eng’g, Inc., 189 F.3d 1370, 1377 (Fed.Cir.1999). This presumption of validity is never weakened, and the burden of proving invalidity does not shift from the party asserting invalidity. Imperial Chem. Indus., PLC v. Danbury Pharmacol, Inc., 745 F.Supp. 998, 1004 (D.Del.1990) (citing ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1574-75 (Fed.Cir.1984) (other citations omitted)). IV. DISCUSSION A. Claim Construction While the parties have identified several claim terms as requiring construction, I will only discuss the two claim" }, { "docid": "18744228", "title": "", "text": "(Fed.Cir.1984). A patent is presumed valid, and the burden of establishing invalidity as to any claim of a patent rests upon the party asserting such invalidity. 35 U.S.C. § 282 (1982). The presumption of validity is a procedural device that mandates that the party asserting invalidity bears the initial burden of establishing a prima facie case of obviousness under 35 U.S.C. § 103. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed. Cir.1983). Once a prima facie case has been established, the burden shifts to the patentee to go forward with rebuttal evidence showing facts supporting nonobviousness. Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573 (Fed.Cir.1985); accord, In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed.Cir.1984). The party asserting invalidity, however, always retains the burden of persuasion on the issue of obviousness until a final judgment is rendered. Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1359, 219 USPQ 473, 478 (Fed.Cir.1983); Stratoflex, 713 F.2d at 1534, 218 USPQ at 875. Each fact forming the factual foundation upon which the court bases its ultimate conclusion regarding the obviousness of the claimed subject matter as a whole must be established by clear and convincing evidence. Lindemann Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1459, 221 USPQ 481, 486 (Fed.Cir.1984); SSIH Equipment Co. S.A. v. United States International Trade Commission, 718 F.2d 365, 375, 218 USPQ 678, 687 (Fed.Cir.1983). On appeal, however, the party subject to the adverse judgment on the issue of validity, in this case the patentee Ashland Oil, bears the burden of showing either that the district court committed reversible legal error in its ultimate conclusion as to obviousness, or that the district court’s probative factual findings underlying its ultimate conclusion on obviousness were clearly erroneous. Fromson v. Advance Offset Plate, Inc., 755 F.2d 1549, 1555, 225 USPQ 26, 30 (Fed.Cir.1985). A. CLAIM 10 OF THE ‘797 PATENT — PEP RESIN The district court found that the Pep resin of claim 10 contained some three ring and greater molecules, along with a substantial amount" }, { "docid": "6114328", "title": "", "text": "art references. Only after Akzo stipulated in each of its claims that a minimum percentage by weight of “CaCL of at least 5%” was essential, and advanced an argument that this minimum 5% by weight critical limit was not obvious over the prior art, did the examiner allow the patent to issue. II. VALIDITY We start by repeating the established rules for testing the validity of a patent. Under 35 U.S.C. § 282, patents are presumed valid. E.g., Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 225 USPQ 345 (Fed.Cir.1985); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed.Cir.1983). The party asserting patent invalidity must first establish a prima facie case of invalidity and must carry the burden of persuasion until the final decision. Id. at 1534, 218 USPQ at 875. In cases challenging patent validity, a challenger has an especially heavy burden because of the deference given to decisions of the patent examiner. American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1359, 220 USPQ 763, 770, (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). The factual findings underlying a conclusion of invalidity must be proved by clear and convincing evidence. A. Under these principles Akzo challenges the District Court’s conclusion of invalidity, contending, for one thing, that the District Court merely gave lip service to the § 282 presumption of validity in declaring the ’374 patent invalid. On the contrary, not only did the District Court conclude that “the evidence presented at trial shows clearly and convincingly that the invention as a whole would have been obvious to one skilled in the art,” 635 F.Supp. at 1353, 230 USPQ at 275, but the court also went on to elaborate with specificity how it came to this conclusion, citing and discussing prior art. Moreover, the District Court found that Akzo had represented the criticality of the “at least 5% CaCl2” limitation claimed in the patent, noting that the examiner had permitted the ’374 Akzo patent to issue only after Akzo had made that limitation in each and" }, { "docid": "16747313", "title": "", "text": "at issue, and the level of ordinary skill in the pertinent art, the court concluded that the Stevenson patent was invalid for obviousness under 35 U.S.C. § 103. If valid, the Stevenson patent was further found to be not infringed by the accused product of Aeroquip. Lear appealed both conclusions, but as that regarding invalidity will be affirmed here, the question of infringement will not be discussed. OPINION I The presumption of patent validity found in 35 U.S.C. § 282 is but a procedural device which places on a party asserting invalidity the initial burden of going forward to establish a prima facie case on that issue. The decisionmaker is thus required to begin by accepting the proposition that the patent is valid and then look to the challenger for proof to the contrary. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed. Cir.1983). Additionally, section 282 establishes that the burden of persuasion on the issue of invalidity also rests throughout the litigation with the party asserting invalidity, though this burden may be more easily carried by evidence consisting of art more pertinent than that considered by the examiner. Lindemann Maschinenfabrik GMBH v. American Hoist and Derrick Co., 730 F.2d 1452 at 1459 (Fed.Cir.1984); Solder Removal Co. v. United States International Trade Commission, 582 F.2d 628, 633, 199 USPQ 129, 133, 65 C.C.P.A. 120 (1978). “In the end, the question is whether all the evidence establishes that the validity challenger so carried his burden as to have persuaded the decisionmaker that the patent can no longer be accepted as valid.” Stratoflex, 713 F.2d at 1534, 218 USPQ at 876. Thus, a holding that the burden has been met is synonymous with invalidity. Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 699 n. 9, 218 USPQ 865, 871 n. 9 (Fed.Cir.1983), cert. denied, - U.S. -, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984). Lear correctly challenges as erroneous the district court’s conclusion that the Stevenson patent should not be entitled to the statutory presumption of patent validity, because the Avrea patent application was not" }, { "docid": "2850605", "title": "", "text": "to referee de novo a dispute on the validity question. Though that procedure would render the Patent and Trademark Office (PTO) unnecessary, it was essentially followed here. As above indicated, courts are clearly not bound by the events in the PTO or by its decisions. Fromson v. Advance Offset Plate, Inc., 755 F.2d at 1555, 225 USPQ at 31. On the other hand, there is no point or value in, and no warrant for, proceeding as though nothing happened before suit except the naked issue of a patent. The statute mandating a presumption of validity, 35 U.S.C. § 282, places the burden of proving facts compelling a conclusion of invalidity on the party asserting invalidity. This court has said the burden of proving facts compelling a conclusion of patent invalidity must be carried by clear and convincing evidence. SSIH Equipment, S.A. v. U.S. Intern. Trade Comm’n, 718 F.2d 365, 375, 218 USPQ 678, 687 (Fed.Cir.1983). The role of the court is to determine whether the validity challenger carried that burden. If the court determines that that burden was not carried, it need only so state. If the court determines that that burden was carried, it should declare the patent invalid. See Lindemann Maschi-nenfabrick GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1452 n. 1, 221 USPQ 481, 484 n. 1 (Fed.Cir.1984). Though the court here referred at the outset to the presumption of validity, mere lip service is insufficient. If the statute is not to be nullified, courts and lawyers must render it more than a mere nod in passing. It must be applied. Counsel for the patent should not undertake the non-existent initial burden of proving validity, but must be prepared to rebut whatever ease of invalidity may be made by the patent’s challenger. If counsel so misperceive their roles as to indicate a reversal, it should not be surprising that a court may be led to misperceive its own. In the present case, as indicated above, n. 14, the district court said it had been “going back and forth” on the question of obviousness. It recognized" } ]

[ { "docid": "22725449", "title": "", "text": "not specify the time for objecting to a claimed exemption, Federal Rule of Bankruptcy Procedure 4003(b) provides in part: “The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) . . . unless, within such period, further time is granted by the court.” In this case, as noted, Davis claimed the proceeds from her employment discrimination lawsuit as exempt by listing them in the schedule that she filed under § 522(7). The parties agree that Davis did not have a right to exempt more than a small portion of these proceeds either under state law or under the federal exemptions specified in § 522(d). Davis in fact claimed the full amount as exempt. Taylor, as a result, apparently could have made a valid objection under § 522(l) and Rule 4003 if he had acted promptly. We hold, however, that his failure to do so prevents him from challenging the validity of the exemption now. A Taylor acknowledges that Rule 4003(b) establishes a 30-day period for objecting to exemptions and that §522(l) states that “[ujnless a party in interest objects, the property claimed as exempt... is exempt.” He argues, nonetheless, that his failure to object does not preclude him from challenging the exemption at this time. In Taylor’s view, §522(l) and Rule 4003(b) serve only to narrow judicial inquiry into the validity of an exemption after 30 days, not to preclude judicial inquiry altogether. In particular, he maintains that courts may invalidate a claimed exemption after expiration of the 30-day period if the debtor did not have a good-faith or reasonably disputable basis for claiming it. In this case, Taylor asserts, Davis did not have a colorable basis for claiming all of the lawsuit proceeds as exempt and thus lacked good faith. Taylor justifies his interpretation of § 522(l) by arguing that requiring debtors to file claims in good faith will discourage them from claiming meritless exemptions merely in hopes that no one will object. Taylor does not stand" } ]

[ { "docid": "5176033", "title": "", "text": "that Huizar’s complaint was frivolous and filed primarily to harass the Bank and further urged consideration of its Motion for Relief from Stay and objection to Debtor’s exemptions. Previously, the Bank had waived its right to a hearing within the 30 days as required by Bankruptcy Code § 362(e). II. DISCUSSION A. Exempt Property Upon filing his bankruptcy petition, all property interests of the Debtor entered the bankruptcy estate, 11 U.S.C. § 541, subject to being withdrawn by the Debtor as exempt property under 11 U.S.C. § 522. Section 522(b) allows a Debtor to use applicable state law exemptions, as the Debtor did in this case. The Bank vigorously asserts that the Debtor was in bad faith when he amended his Schedules and consequently his claimed exemptions should be denied. However, Bankruptcy Rule 1009 allows a Debtor to amend his voluntary petition, schedules, or statement of affairs as a matter of course at anytime before the case is closed. Absent a showing of bad faith or prejudice to creditors, the Fifth Circuit generally permits amendments to exemption claims before the bankruptcy case is closed. In re Williamson, 804 F.2d 1355 (5th Cir.1986). While there is evidence supporting the Bank’s assertion, the Court does not find sufficient evidence to compel it to render a finding on that basis. The Court, therefore will not deny the claimed exemption solely because of the subsequent late amendment by Huizar. Claiming an exemption does not however establish that the property in question is in fact exempt. If a timely objection is filed, then the Court must determine the Debt- or’s entitlement to the exemptions. As to homestead exemptions, a bankruptcy court must turn to state law for interpretation of state exemption rights. In re Barnhart, 47 B.R. 277 (Bankr.N.D.Tex.1985). In Texas a homestead is defined by Article XVI, Section 51 of the Texas Constitution which sets forth the applicable Texas Homestead Exemption and provides in pertinent part: The homestead, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels with" }, { "docid": "16173359", "title": "", "text": "is immaterial, in that they could have been exempted and thus of no benefit to creditors in her case. First, these properties have yet to be disclosed in Schedule A. Second, Schedule C does not exempt these properties. Third, there are two joint creditors— GMAC, whose holding of an unsecured joint claim may be dependent upon bifurcation of that claim pursuant to 11 U.S.C. § 506(a); and Chase Bank, USA, N.A., whose claim on its fact is a joint claim— against whom no exemption will operate pursuant to I.C. 34-55-10-2(c)(5). The debtor’s exemption rationale thus totally fails, and even if it were true, failure to disclose assets in a bankruptcy case on the basis that exemption causes those assets to be non-administrable is no excuse whatsoever for not disclosing the assets and asserting an appropriate exemption with respect to them. The failure to disclose assets potentially, and inexcusably denies creditors a fair distribution and fair treatment in a case. Much of the debtor’s testimony at the June 6, 2008 hearing was devoted to her explanation as to why she failed to disclose her interests in the time shares and in the rental properties in her filings. The court finds the debtor’s explanation to be totally disingenuous, particularly with respect to the time share interests. There is no evidence that either of the time share interests had been terminated, and in fact, the evidence is that one of the time share interests had ten years remaining in its use to the debtor and her husband. The court determines that debtor’s failure to initially disclose the time share interests was intentional in order to preserve for the debtor and her husband the use of those assets, free of any consideration of, or control by, the Chapter 13 Trustee and creditors in relation to her Chapter 13 case. The amendment of the debtor’s schedules in relation to these time share interests does not undo the effect of nondisclosure in the initial filing, based upon the court’s determination of the reason for that non-disclosure. The “rental” properties are on a somewhat different footing, in" }, { "docid": "19938678", "title": "", "text": "the six-plex for $300,000.00. Battley contends Shell is entitled to exempt just one-sixth of the equity in the six-plex, rather than the full homestead exemption amount of $64,800.00, because the debtor uses just one-sixth of the property as his principal residence. Battley also objects to Shell’s exemption of rents, certain firearms and tools. Analysis In support of his contention that the debtor is not entitled to a full homestead exemption in the six-plex, the trustee has cited a number of authorities from Florida, New York, Kansas and New Hampshire. In each of these jurisdictions, courts have limited a debtor’s homestead claim in property used both as a residence and for income production to a fractional share based on the percentage of the property deemed “residential.” Relying on these authorities, the trustee argues that the debtor’s homestead rights under A.S. 09.38.010 must be limited to one-sixth of the net equity in the six-plex. I respectfully disagree. Homestead laws vary from state to state and there is no consensus among all the states as to whether a homestead claim is lost if a portion of the premises is used for rental or other commercial purposes. Several bankruptcy courts addressing this issue have reached the conclusion that a debtor is entitled to a full homestead exemption in property with dual uses, so long as the debtor actually resides on the property. When a debtor has claimed a homestead exemption under state law, his entitlement to the exemption must be determined by examining the applicable state law, rather than relying upon decisions from other jurisdictions. The applicable statute here is A.S. 09.38.010(a), which provides: An individual is entitled to an exemption as a homestead of the individual’s interest in property in this state used as the principal residence of the individual or the dependents of the individual, but the value of the homestead may not exceed [$64,800.00]. The homestead statute has two requirements: an individual must have an interest in property in Alaska, and that property must be his or her principal residence. A “principal residence” is defined as “the actual dwelling place of" }, { "docid": "10708777", "title": "", "text": "the list of exemptions is filed; (c) In this case, the deadline for objecting to the Debtor’s Amended Exemption Schedule expired thirty days after that list was filed and any objections filed thereafter were untimely; and, (d)Accordingly, as the objections to at least a portion of his Amended Exemption Schedule were untimely, the subject property re-vested in him by operation of law and is now held by him free and clear of any claims of the Estate. Because he battles them on the merits, Debtor seems to concede that even under his analysis timely objections were filed with respect to the alleged tenants by the entirety exemptions included in the Amended Exemption Schedule. However, as to all the other property claimed exempt, Debtor relies upon the holding of Bell v. Bell (In re Bell), 225 F.3d 203 (2nd Cir.2000) and contends that the deadline for filing any further objections expired thirty days after the filing of the Amended Exemption Schedule, that those exemptions are therefore conclusively established and the objectors are forever barred from contesting his non-tenants by the entirety exemptions. By the Debtor’s reckoning, what this means is that all of that property, no matter how much of its value he claimed to exempt, is now his free and clear of any adverse claims. The Court disagrees with the construction of the relevant law expressed in Bell pursuant to which the Second Circuit concluded that a Section 341(a) meeting of creditors only occurs once in a given bankruptcy case. To the contrary, a second, fully robust, meeting of creditors in a converted case is a statutory imperative. Nevertheless, while the Court disagrees with the Bell Court on that point, it must also be acknowledged as to the narrower question of timeliness that the better rea- sonecl analysis of the relevant law leads to the conclusion that the Chapter 7 Trustee’s second objection to the Debtor’s Amended Exemption Schedule came too late. This is so because even in light of the Debtor’s obvious attempt at manipulating the Code and Rules to his advantage, and the apparent injustice created from a" }, { "docid": "19938687", "title": "", "text": "allowed a full homestead exemption for income producing property that was also used as a home. In the eighty years that have followed that decision, no Alaska legislature has tried to overrule or limit Wendler through legislation. Instead, the dollar amount allowed for a homestead has steadily increased. Additionally, the homestead exemption has been simplified through removal of the acreage limitations found in preceding laws. But the two essential elements of the homestead exemption, actual abode and ownership, have survived legislative revision. Alaska’s legislature intended to protect property that supplies the basic necessities of life in Alaska, such as shelter, and to keep indigent debtors off of public assistance. This intention would be ill-served by limiting a disabled carpenter’s homestead to one sixth of the equity in his residence, a six-plex. The legislative history of the statute supports its plain meaning. Frank Shell is entitled to a full homestead exemption under Alaska law. The trustee has also objected to the debtor’s claim of exemptions for net rental income from the six-plex, certain guns, and miscellaneous hand and power tools. With regard to the rental income, on his amended Schedule C, Shell claimed $1,267.88 in net “earnings” per month as exempt property. I find the debtor’s net rental income to be a liquid asset, similar to the note payments found exempt in In re Melin. They total less than the $1,680.00 per month allowed under AS 09.38.030(b) and 8 A.A.C. 95.030(d)(2), and constitute exempt property. Shell’s net income from the six-plex is exempt property- The debtor claimed six guns as exempt “household goods” under A.S. 09.38.020(a). The trustee contends he may only exempt one gun. On this point, I agree. In accordance with In re Fitzgerrell, Mr. Shell may claim only one gun as exempt. The trustee also seeks to deny Shell’s tools of the trade exemption under A.S. 09.38.020(c) for certain hand and power tools. The trustee contends Shell has no right to claim the tools as exempt, because he no longer works as a carpenter or as the owner of a handyman business. The debtor has been actively managing" }, { "docid": "10277099", "title": "", "text": "claimed as exempt. The schedules were subsequently amended only after the trustee specifically objected to them, for the first time disclosing other assets and valuations. These assets (e.g., the Rolex watch, the furniture, fixtures, equipment and the insurance policies) would, in all likelihood, never have been disclosed but for these objections. The debtor “borrowed” $19,000.00 from insiders just a few days prior to filing bankruptcy, secured by a combination of exempt (watch) and nonexempt (furniture, fixtures and equipment) property. Debtor acknowledges that he does not know where his ex-wife and daughter came up with this money. The overall activity has the appearance of an attempt to place liens in favor of family members on a majority of his property just days before filing bankruptcy, to discourage his creditors from pursuing those assets. As noted earlier, it cannot be determined with specificity whether nonexempt assets were converted into exempt assets with respect to the loans. However, there were a multitude of questionable transactions just days before the bankruptcy filing, none of which might take on any importance in isolation but which, viewed in the aggregate, reveal a pattern. Debtor’s conduct with respect to the Keogh plan and the IRA plan fits into that pattern. The court believes that the debt- or’s conduct with regard to the funds from the Keogh plan, when viewed against this pattern, demonstrates an attempt to delay and hinder his creditors by converting his nonexempt Keogh plan into what he hoped was an exempt IRA plan just eight days prior to the filing bankruptcy. Here, the court does not face the same problem tracing whether the property converted belonged to the debtor. The Keogh plan was clearly the debtor’s property. The court concludes that, even were the IRA held to be otherwise exempt, it would nonetheless be constrained to conclude that the debtor created that exemption out of his nonexempt property, with intent to hinder and delay his creditors, in violation of Section 42.004(a) of the Texas Property Code. Cf Matter of Bowyer, 916 F.2d at 1060 (pre-bankruptcy planning with intent to hinder or delay or creditors" }, { "docid": "8798474", "title": "", "text": "bases for belatedly remedying wrongfully claimed exemptions. It also made clear that deadlines such as the one found in Rule 4003(b) are to be enforced, even if they lead to unwelcome results, because they prompt parties to act and they produce finality. Thus, even though the Supreme Court left open the question due to procedural issues, we question whether the Supreme Court would, in fact, permit a trustee to use § 105 to object to exemptions to which he declined or failed to properly object pursuant to the Rules. Even if the Trustee is permitted to use § 105 for that purpose, he failed to establish grounds for doing so here. When questioned by the court at the hearing as to why he was objecting to the homestead exemptions a year after the Debtor initially claimed them, the Trustee responded that he did not originally object because the erroneous exemptions were “immaterial” at the time, apparently because the total value of property that the Debtor was claiming exempt was small and the properties would have been fully exempt under the proper Code section, § 522(d)(5), in any event. At the time of the original exemptions, the Trustee did not consider the claimed exemptions to be made in bad faith, despite the erroneous Code provision identified. Now, however, the Trustee attempts to couple the erroneous homestead exemptions with the Debt- or’s alleged bad faith in claiming exemptions in the Stock. As discussed below, however, we conclude that the bankruptcy court clearly erred in finding that the Debtor claimed the Stock exemptions in bad faith. As a result, there is no evidence to support a finding that the homesteads were claimed in bad faith. Instead, the Debtor simply claimed an exemption in real property to which he would have been entitled, but claimed it under subpara-graph (1) of § 522(d), rather than subpara-graph (5). The Stock Exemption Section 522(d)(5), the federal “wildcard” exemption, permits a debtor to exempt “[t]he debtor’s aggregate interest in any property, not to exceed in value $1075 plus up to $10,125 of any unused amount of the exemption" }, { "docid": "9483112", "title": "", "text": "to timely object to debtor’s exemptions may later challenge the validity of the claimed exemptions in defending a lien avoidance motion under Section 522(f). A majority of those cases hold that an exemption obtained by default cannot be attacked in defending a lien avoidance motion under Section 522(f). For example in In re Youngblood, 212 B.R. 593 (Bankr.N.D.Ill.1997), the debtor claimed as exempt withheld wages, which were subject to a creditor’s judicial lien. The creditor failed to timely object, even though the exemption had no colorable basis under Illinois exemption law. The court allowed the lien avoidance over the lienholder’s proffered attack on the validity of the exemptions, stating: [T]o hold [otherwise] in this case would be to fly in the face of the Supreme Court and the Seventh Circuit rulings in Taylor and [In Matter of] Kazi[, 985 F.2d 318 (7th Cir.1993)]. The debtor in the Supreme Court’s Taylor opinion did not have a right to exempt more than a small portion of proceeds from a discrimination suit, yet he claimed the full amount as exempt .... The trustee there had an opportunity to object to the claimed exemption but failed to do so .... The opinion held that the trustee’s failure to object forever barred him from doing so. As stated, § 522(1) expressly provides that the debtor ‘shall file a list of property that the debtor claims as exempt under subsection (B) of this section,’ and if there are no timely objections, the property is exempt. To hold that this incontestably exempt property remains subject to a lien which impairs the exemption and gobbles up the withheld money would contradict that which the Seventh Circuit and the Supreme Court have clearly mandated. As noted in Kazi, it would be inconsistent with Taylor’s emphasis on finality to allow an exemption under § 522(1), but then moot that exemption. In re Youngblood, 212 B.R. at 598. See also In re Mukhi, 246 B.R. 859 (Bankr.N.D.Ill.2000), in which the homestead exemption claimed exceeded the statutory limits under Illinois law, but the creditor failed to timely object. The court stated that" }, { "docid": "8798479", "title": "", "text": "Rather, the evidence was that, in amending his schedules, the Debtor was attempting to do what the Eighth Circuit permitted in Wick, namely, to claim the Stock exempt to the maximum permitted when he believed the Stock was valued at zero. As a result, the bankruptcy court clearly erred in finding that the Trustee met his burden of proving that the Stock exemption was claimed in bad faith. The Homestead and Stock Exemptions As a Whole Although he did not object to the incorrect homestead exemptions in the original schedules, the Trustee points to the amended homestead and Stock exemptions considered in combination as evidence of bad faith. Had the Debtor properly claimed the real property exempt under the wildcard, then he would have $6,034 available for the Stock; claiming the real property exempt under the homestead leaves the Debtor with an $11,200 wildcard to use on the Stock. Again, the Trustee offered no evidence of the Debtor’s intent, other than the schedules themselves. According to Debt- or’s counsel, he intended all along to claim the two parcels of real property exempt under the wildcard, but simply listed the wrong Code provision in both the original and amended schedules. This is supported by the fact that, when the original schedules were filed, there had been no offer for the Stock and the entire wildcard went unused. As a result, the Debtor did not benefit in any way by claiming the real estate under the wrong statute, which is why the Trustee would have had not reason to object at that time. Similarly, when the amended schedules were filed, Zajac’s offer for the Stock was $2,500, and the Debtor had ample room to claim both the real estate and the Stock exempt under the wildcard. Again, the Debtor received no benefit from claiming the real estate exempt under the wrong statute, and this continues to be true even if Zajac’s offer increases to $5,000 (or even $6,034). Since there was no benefit to the Debtor in claiming the property exempt under the homestead statute, and the Trustee offered no additional evidence" }, { "docid": "21360996", "title": "", "text": "constitutional and statutory provisions that protect homestead exemptions. Indeed, we must uphold and enforce the Texas homestead laws even though in so doing we might unwittingly — or even knowingly, but powerless to avoid it— assist a dishonest debtor in wrongfully defeating his creditor. This may account for the oft-repeated creditor’s lament: 'Debtors either die or move to Texas.' ” Id. (citations omitted). . At the initial meeting of creditors held on May 24, 2006, the Trustee expressly asked the Debtor the following question: \"Have you listed on your schedules all of your wife’s assets and all of your assets?” The Debtor responded: \"Yes, sir.” The Trustee then asked the following question: \"Your wife does not have any separate property at this time?” The Debtor responded definitively: \"No, sir.” [Exhibit No. 59, 4:3-9.] Given that the Bastrop Property was purchased on April 21, 2006, the Debtor’s testimony at the hearing that he had committed perjury during the initial meeting of creditors was on point. At the time the Trustee had asked him these questions, he knew full well that the Bastrop Property had been purchased. . While the Debtor and Ms, Sissom might contend that the property which they sold was exempt, the fact is that the garage sale took place on June 3 and 4, 2006 — which means that the deadline for the Trustee and any creditor to object to the exemptions had not yet expired. The initial meeting of creditors was held on May 24, 2006, which means that, at the earliest, the deadline to lodge objections to exemption was June 23, 2006 pursuant to Bankruptcy Rule 4003(b). Accordingly, the property sold at the garage sale was not yet exempt and therefore belonged to the Trustee. Calvin v. Wells Fargo, N.A. (In re Calvin), 329 B.R. 589, 597 (Bankr.S.D.Tex. 2005). Because the property belonged to the Trustee, the proceeds from the sale of the property also belong to the Trustee. . As previously discussed, the Debtor used $ 189,740.00 of the sale proceeds from the F & S stock to purchase four cashier's checks for his wife" }, { "docid": "17894386", "title": "", "text": "the premises, still continued to reside upon the property. It would have made no difference if he had not. Notwithstanding the lease, his homestead exemption was intact. 4 Colo.App. at 268-9, 35 P. 679. Clearly, in this case, the Debtor has retained an interest in the half of the duplex that she rents out. In fact, the reversion-ary interest is substantial, since the Debtor could, at any time, upon giving property notice, retake possession of the premises. And, I think it is further without a doubt that the interest of the Debtor in the rented half of the duplex could be reached by a creditor in execution of a judgment. Therefore, it is in accord with the liberal construction of the homestead statute and with the principals set forth in Dallemand, supra, that I find that the rental part of the duplex does not impair her right to exempt the equity in the entire structure. The Debtor is entitled to claim any equity in the property considered as a whole; up to $20,-000, as exempt under § 38-41-201. The Debtor occupies a portion of one structure, situated on one lot, treated as a single unit for the purpose of the Debtor’s tax and mortgage liabilities. It would not make sense to split the property into two separate units for the purpose of the homestead exemption. As has been previously held by this Court in an unpublished opinion by Judge McGrath, “There is no provision in the Colorado statute for splitting a homestead.” In re Meyer, No. 82 B 01763 Me, unpublished Nov. 26, 1982. Further, the likely result of holding half of the equity in the property non-exempt would be the sale of the entire property to realize on that equity. Then the Debtor would be without the residence which she had occupied for 3 years, regardless of the fact that the equity in the property was less than $20,000.00. That result would frustrate the purpose of the statute. THEREFORE, IT IS ORDERED that the lien of West Greeley National Bank is void. FURTHER ORDERED that the Bank’s Objection to" }, { "docid": "8887440", "title": "", "text": "Adversary Complaints combined for the purposes of trial and decision, to-wit: 1) Motion to Amend Schedules and Statement of Affairs by Glenn M. Roberts (hereinafter “Debtor”); 2) Trustee’s Objections to Debtor’s Original and Amended Claimed Exemptions; 3) Trustee’s Complaint For Turnover of Property fraudulently transferred, specifically, the professional corporation known as Glenn M. Roberts Medical Associates Inc., conveyed by the Debtor to one or more of his children; 4) Trustee’s Complaint to Avoid Transfer of Property fraudulently conveyed, including many and various asset transfers from the Debtor individually to himself and his wife as tenants by the entireties; 5) Trustee’s Complaint to Avoid Fraudulent Transfers of Property, specifically certain rental payments made to a joint venture account held for the benefit of Debtor’s grandchildren; 6) Trustee’s Complaint for Turnover of Assets Claimed as Exempt, specifically contributions to the Debtor’s pen- sion plan, maintained by his medical practice; 7) Complaint to Determine Discharge-ability of Debt filed by a certified class of judgment creditors objecting to the discharge of their $1.6 million claim under § 523(a)(2)(A), (a)(4), and (a)(6); and 8) Complaint by the certified class of judgment creditors Objecting to Debt- or’s Discharge in its entirety under § 727(a)(2)(A), (a)(3), (a)(4)(A), (a)(4)(D), (a)(5) and (a)(7). Having completed more than three full days of testimony, carefully examining all exhibits, and thoroughly considering all briefs and proposed findings of the parties, we hold as follows: 1) Debtor’s Motion To Amend Schedules is DENIED, same having been filed in bad faith; 2) Trustee’s Objections to Debtor’s Claimed Exemptions, Original and Amended, are GRANTED; 3) Trustee’s Complaint for Turnover of Debtor’s Medical Corporation is GRANTED; 4) Trustee’s Complaint for Avoidance of Transfers made by the Debtor to Himself and His Wife is GRANTED; 5) Trustee’s Complaint for Avoidance of Transfers made to the Joint Venture is GRANTED; 6) Trustee’s Complaint for Turnover of Debtor’s Pension Plan is GRANTED; 7) Judgment creditors’ Objections to the Dischargeability of Their Claim is GRANTED; and 8) Judgment creditors’ Objection to Debtor’s Discharge is GRANTED. Because of the very nature of this case, we reach holdings in all of the" }, { "docid": "10183211", "title": "", "text": "exemption and yet affords creditors some satisfaction of their rightful claims. Englander at 17. Accordingly, the court will sustain the objection to the claim of the homestead exemption as to the four rental apartments and overrule the objection as to the debtors’ residential apartment. Because the property is indivisible, the court will permit the trustee to sell the entire real property and divide the proceeds, after satisfying mortgage and other liens of record and paying the ordinary and necessary costs and expenses of sale and closing, between the estate and the debtors as follows: the estate shall be entitled to the portion of the net proceeds that the square footage of the four rental units bears to the total square footage of the two structures; the debtors shall be entitled to the portion of the net proceeds that the square footage of the debtors’ residential unit bears to the total square footage of the two structures. III. Regarding the creditors’ personal property objection, the court concludes that the NADA “blue book” is a more accurate and reliable indication of the value of automobiles than are the amounts scheduled and supported by the debtor husband’s brief affidavit. Importantly, nothing in the affidavit suggests that these automobiles are in a condition that would make the “blue book” an inaccurate source or reference as to value. Although a debtor’s testimony could clearly support a value different from the “blue book” value, the blue book is more reliable than a naked number placed in the debtors’ schedules supported in the manner the debtors have done here. When the court has nothing but these two alternatives from which to choose in determining the value of an automobile, the court will choose the “blue book” as being substantially more accurate and persuasive. The creditors have therefore carried their burden on this record. F.R.B.P. 4003(c). Using the “blue book” values, the debtors’ equity in the automobiles and the other personal property they have claimed as exempt is greater than the $2,000 exemption allowance. The objection is, therefore, sustained. The trustee shall administer the automobiles. Upon sale, the" }, { "docid": "8798471", "title": "", "text": "the catch-all unlisted/undervalued property exemption was disallowed; and (4) the exemption in the non-homestead real estate pursuant to § 522(d)(1) was disallowed. The Debtor appeals. STANDARD OF REVIEW We review findings of fact for clear error, and legal conclusions de novo. A finding of bad faith is reviewed for clear error, determined by an examination of the totality of the circumstances. DISCUSSION A debtor’s claimed exemptions are presumed to be valid, and an objecting party bears the burden of proving that a claimed exemption is invalid. Moreover, “[t]he general rule allows liberal amendment of exemption claims,” although a bankruptcy court has the discretion to deny an amendment to exemptions if the amendment is proposed in bad faith or would prejudice creditors. In holding that the Debtor was “gaming the system,” the bankruptcy court apparently determined that he was acting in bad faith in claiming these exemptions. The Homestead Exemptions Rule 4003(b) establishes a 30-day deadline from the initial meeting of creditors for objecting to exemptions. In Taylor v. Freeland & Kronz, the Supreme Court held that a Chapter 7 trustee could not contest the validity of a claimed exemption after the 30-day objection period, where no extension had been obtained, even though the debtor had no colorable basis for claiming the exemption in the first place. The filing of an amended schedule does not reopen the time to object to the original exemptions. There is no dispute that the Trustee’s objection as to the homestead exemptions was out of time. Nevertheless, he asserts that he is permitted to bring the untimely objection pursuant to 11 U.S.C. § 105 due to the Debtor’s bad faith in twice asserting homestead exemptions under § 522(d)(1) for property that is con-cededly not his homestead. As the Trustee suggests, the Supreme Court declined to consider in Taylor the question of whether a bankruptcy court may use § 105 as a basis for denying an exemption due to bad faith because the trustee there raised the argument for the first time on appeal. However, even though the Supreme Court left open the § 105 question due" }, { "docid": "7436472", "title": "", "text": "as to his nonexempt property. He does maintain, however, that Freedman’s failure to object to the exemptions as scheduled by the Debtor within the thirty days following the April 1 section 341 creditors’ meeting constituted a waiver of such objections and, consequently, the Property is deemed exempt as scheduled. Although recognizing that Freedman asserted in its motion for relief from stay, filed nearly a month before the first creditors’ meeting, that it disputed “certain of the [Debtor’s] claims for exempt property,” the Debtor contends that “such a side comment is insufficient to be considered an Objection to Exemptions Claimed.” Further, the Debtor suggests that the general, all-inclusive statement in Freedman’s Motion is too broad and failed to place the Debtor on notice as to which exemptions Freedman disputed. The Debtor argues that he makes business use of the building located on Tract 2, using it as a warehouse which is serviced by telephone and from which he obtains boxes several times a week. Consequently, the Debtor concludes, Tract 2 qualifies as a business homestead. With respect to the urban homestead claim as a whole, the Debtor asserts that Freedman presented insufficient evidence at trial to provide the court a basis for delimiting a one-acre portion of the Property as exempt property. The Debtor also maintains that the retroactive application of the 1983 amendments of the provisions of the Texas Constitution and the Texas Property Code regarding the homestead exemption violates his right to due process and the prohibition against ex post facto laws. The Debtor contends that the stay should not be lifted because (1) the Debtor does have equity in the property since the judgment lien does not attach to exempt property and the two tracts are deemed exempt, and (2) Freedman’s interests are adequately protected since the tracts constitute real property that is not declining in value. The Debtor rejects as untenable the notion that Freedman’s inferior lien position can be said to constitute a lack of adequate protection. Finally, the Debtor argues that Tract 2 is necessary for an effective reorganization because he may be required to" }, { "docid": "12534166", "title": "", "text": "MEMORANDUM DECISION ON TRUSTEE’S OBJECTION TO DEBTORS’ EXEMPTION ROBERT CLIVE JONES, Bankruptcy Judge. FACTS Debtors own a four-plex where they reside in one unit and lease the other three. The Debtors’ schedules list the property as having a value of $205,000, with a secured claim of $138,000. The debtors claim a homestead exemption on the property pursuant to Nevada’s homestead statute, Nev.Rev.Stat. § 115.005, et seq. The chapter 7 trustee subsequently moved this court for an order denying the debtors’ exemption, arguing that the exemption may not cover the entire property since the debtors live in only one of the four units. ISSUE May the debtors claim a homestead exemption under Nev.Rev.Stat. § 115.005 et seq. in an entire four-unit apartment building owned by the debtors when the debtors live in one unit and lease the other three units to third-parties? DISCUSSION The trustee argues that the debtors may claim a homestead exemption only in one-quarter of the property, which represents that portion of the property actually used by the debtors as their personal residence. The definition of a “homestead” varies from state to state. Under the Nevada statute, “‘Homestead’ means the property consisting of ... [a] quantity of land, together with the dwelling house thereon and its appurtenances _” Nev.Rev.Stat. Ann. § 115.005(2)(a)(Michie 1993). The Nevada exemption statute states: 1. The homestead is not subject to forced sale on execution or any final process from any court, except as provided by subsections 2 and 3. 2. The exemption provided in subsection 1 extends only to that amount of equity in the property held by the claimant which does not exceed $125,000 in value. Nev.Rev.Stat. Ann. § 115.010(l)-(2)(Miehie 1993). Homestead laws are to be construed liberally in favor of the persons for whose benefit they were enacted. Jackman v. Nance, 109 Nev. 716, 857 P.2d 7, 8 (1993). The Nevada Supreme Court explained the broad application of Nevada’s homestead exemption in Jackman v. Nance. In Jackman, the debtor claimed a homestead exemption in a 6,380 square-foot building in which he operated an equipment rental business. The debtor also created a" }, { "docid": "10168606", "title": "", "text": "ORDER ON MOTION FOR REHEARING ALEXANDER L. PASKAY, Chief Judge. THE MATTER under consideration in this Chapter 7 case is a Motion for Rehearing filed by George Hadley, trustee of the Chapter 7 estate (Trustee). The Trustee seeks a rehearing of this Court’s Order on Trustee’s Objection to Exempt Property Listed by Debtor, entered on July 29, 1986, in which this Court overruled the Trustee’s objection to the Debtors’ claimed exemptions and allowed the Debtors’ exemptions as filed. The Court has considered the Motion together with the record, heard argument of counsel, and finds as follows: On March 28, 1986, Louis James Aliotta, Jr., and Lillian Blanche Aliotta (Debtors), husband and wife, filed their joint Petition for Relief under Chapter 7 in this Court. On their Schedule B-4, property claimed as exempt, the Debtors listed a piece of real property located in Hernando County and claimed that property as their homestead exemption pursuant to Fla.Stat. § 222.01 et seq. and Article X, § 4 of the Florida Constitution. It is without dispute that on this property is a four-unit apartment building. The Debtors live in one of the four apartments and use the other three for rental purposes. The Trustee objected to the exemption of this real property, but on July 29, 1986, this Court entered an Order overruling the Trustee’s objection and allowing the property to be claimed as exempt. The Trustee subsequently filed a timely Motion for Rehearing, alleging that the July 29, 1986, Order was contrary to Florida law on homestead exemptions. Prior to the 1968 Amendment of Article X, § 4 of the Florida Constitution, a homestead exemption was allowed for the “residence and business house of the owner.” This “business property test” allowed an owner to claim as exempt not only his dwelling house but also other structures which were used for business or were income-producing rental properties. See, ie., Cowdery v. Herring, 144 So. 348 (Fla.1932). Article X, § 4 of the Florida Constitution was amended in 1968 to eliminate the reference to business property and now states that homesteads shall consist of the" }, { "docid": "10183200", "title": "", "text": "structure contains two dwelling units. The separate units were set apart or constructed for rental purposes. All units have internal dividing walls and can be separated by vertical lines. The units have separate entrances, and each is a self-contained dwelling containing kitchen and bathroom facilities. The debtors reside in one of the dwelling units in the three unit structure. The debtors’ residential unit is approximately 1,400 square feet in size, and the other two rental units in that structure are approximately 400 square feet each. The second building is approximately 1,800 square feet in size and is divided equally between two residential units. All residential units not occupied by the debtors are leased to third parties for $500 per month per unit. The debtors lease the rental units for minimum terms of six months. The units are beach apartments. They are located on Highway A1A across from the Atlantic Ocean. The creditors and trustee objected to the claim of exemption for this property. The basis for the objection is that the property is rental property rather than homestead and therefore not exempt from the claims of creditors. B. Personal Property The debtors claimed in their schedules the following personal property as exempt with a zero equity: A. 1988 Toyota Camry; and B. 1988 Honda Civic. The debtors scheduled the automobiles as having market values of $4,750 and $2,400, respectively, with secured claims against them of $4,900 and $2,450, respectively. Although the parties’ stipulation sets forth these facts, the debtors and the creditors are not able to agree on the actual values for the automobiles. For purposes of this contested matter, the debtors supported their scheduled values with a brief affidavit of the debtor husband. In the affidavit, the debtor states that, “in order to determine a realistic value for said vehicles [he] had those vehicles appraised by several used car dealerships in the Brevard County area.” The debtor then recites that the scheduled values are based upon those “evaluations” as well as his own “personal knowledge of the values of automobiles.” The affidavit contains no further information. Upon the creditors’" }, { "docid": "8798470", "title": "", "text": "Zajac is willing to pay to harass the Debtor. The bankruptcy court scheduled a hearing on the objections to exemptions, at which the Trustee presented no evidence. Debtor’s counsel stated a desire to present evidence as to the value of the Stock so as to show that the companies’ liabilities exceeded their assets, and that he therefore acted in good faith in scheduling it with zero value. He was effectively denied the opportunity to do so. At the conclusion of that hearing, the bankruptcy court announced that it was sustaining the Trustee’s objections, including the objection to the homesteads, suggesting that the Debt- or was trying to “game the system” in claiming the exemptions. The court also indicated that it would not consider any further attempt by the Debtor to amend the exemptions. The court subsequently issued an Order memorializing the decision on the Trustee’s objection, holding that: (1) the exemption in the Stock was limited to $0; (2) the Trustee could sell the Stock and pay the Debtor $0 for his claimed exemption; (3) the catch-all unlisted/undervalued property exemption was disallowed; and (4) the exemption in the non-homestead real estate pursuant to § 522(d)(1) was disallowed. The Debtor appeals. STANDARD OF REVIEW We review findings of fact for clear error, and legal conclusions de novo. A finding of bad faith is reviewed for clear error, determined by an examination of the totality of the circumstances. DISCUSSION A debtor’s claimed exemptions are presumed to be valid, and an objecting party bears the burden of proving that a claimed exemption is invalid. Moreover, “[t]he general rule allows liberal amendment of exemption claims,” although a bankruptcy court has the discretion to deny an amendment to exemptions if the amendment is proposed in bad faith or would prejudice creditors. In holding that the Debtor was “gaming the system,” the bankruptcy court apparently determined that he was acting in bad faith in claiming these exemptions. The Homestead Exemptions Rule 4003(b) establishes a 30-day deadline from the initial meeting of creditors for objecting to exemptions. In Taylor v. Freeland & Kronz, the Supreme Court held" }, { "docid": "19938688", "title": "", "text": "hand and power tools. With regard to the rental income, on his amended Schedule C, Shell claimed $1,267.88 in net “earnings” per month as exempt property. I find the debtor’s net rental income to be a liquid asset, similar to the note payments found exempt in In re Melin. They total less than the $1,680.00 per month allowed under AS 09.38.030(b) and 8 A.A.C. 95.030(d)(2), and constitute exempt property. Shell’s net income from the six-plex is exempt property- The debtor claimed six guns as exempt “household goods” under A.S. 09.38.020(a). The trustee contends he may only exempt one gun. On this point, I agree. In accordance with In re Fitzgerrell, Mr. Shell may claim only one gun as exempt. The trustee also seeks to deny Shell’s tools of the trade exemption under A.S. 09.38.020(c) for certain hand and power tools. The trustee contends Shell has no right to claim the tools as exempt, because he no longer works as a carpenter or as the owner of a handyman business. The debtor has been actively managing and maintaining the six-plex, however. The tools assist him in the production of rental income. The trustee’s objections to the debtor’s exemption claim for tools of the trade will be overruled. Conclusion The trustee’s objections to the debtor’s homestead exemption and his exemption for tools of the trade will be overruled. The trustee’s objection to the debtor’s exemption of six guns will be sustained; the debtor may only claim one gun exempt. An order and judgment will be entered consistent with this memorandum. . Englander v. Mills (In re Englander), 95 F.3d 1028 (11th Cir.1996); First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So.2d 1152 (Fla.App.1992); In re Oliver, 228 B.R. 771 (Bankr.M.D.Fla.1998); Matter of Aliotta, 68 B.R. 281 (Bankr.M.D.Fla.1986). . In re Hager, 74 B.R. 198 (Bankr.N.D.N.Y.1987). . Belcher v. Turner, 579 F.2d 73 (10th Cir.1978). . Kilburn v. Filby (In re Filby), 225 B.R. 532 (Bankr.D.N.H.1998); In re Mirulla, 163 B.R. 910 (Bankr.D.N.H.1994). . See 40 Am Jur 2d, Homestead § 75 [West 1999]. . See In re Brizida, 276 B.R." } ]

[ { "docid": "18402669", "title": "", "text": "ORDER NORGLE, District Judge. Plaintiff has filed this petition seeking to quash four summons issued by the Internal Revenue Service (IRS). Defendants move to dismiss the petition for lack of jurisdiction and for failure to state a claim upon which relief may be granted. 26 U.S.C. § 7609(h) grants the district court jurisdiction over petitions to quash summons issued to a person “who resides or is found” in the district. Because one of the summonses, to Botts Oil & Gas Co., in Mattoon, Illinois was served upon a person who neither resides nor is found within the Northern District of Illinois, this court is without jurisdiction to consider the petition to quash and the petition is, therefore, dismissed. See Masat v. United States, 745 F.2d 985 (5th Cir.1984); Maikranz v. United States, 1985 Tax Cases ¶ 9529, 89, 309 (N.D.Ind.1985). With respect to the remaining three summonses, plaintiff must present specific facts from which the court could infer a significant possibility of wrongful conduct by the government. See United States v. Kis, 658 F.2d 526, 539 (7th Cir.1981), cert. denied sub nom. Salkin v. United States, 455 U.S. 1018, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982). The government correctly states that it need not demónstrate that it has met the requirements in United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-55, 13 L.Ed.2d 112 (1964) at this stage in the proceedings. Powell concerned the government’s prima facie case in requesting judicial enforcement of an IRS summons. The government does not seek enforcement at this time but rather seeks to dismiss the petition to quash the summonses. The Tax Equity and Fiscal Responsibility Act of 1982, 26 U.S.C. § 7609(b)(2), in an effort to prevent burdensome obstruction by taxpapers of enforcement of the tax laws, placed the burden on the taxpayer to initiate a proceeding within twenty days to quash the summons. See Joint Committee on Taxation, General Explanation of the Revenue Provisions of the Tax Equity and Fiscal Responsibility Act of 1982, 97th Cong.2d Sess. 231-22; see also Goodwin v. United States, 564 F.Supp. 1209, 1211-12 (D.Del.1983)." } ]

[ { "docid": "18379255", "title": "", "text": "language of § 7602 promotes the goal of § 7601. The summons power extends to “making a return where none is made” and to “determining the liability of any person for any internal revenue tax.” This latter phrase clearly empowers the Secretary to issue summons to obtain information about any potential taxpayer, even if the Secretary ultimately determines that the person investigated does not owe any tax. That is why courts have held that the IRS is not required to establish tax liability prior to the issuance of a summons under § 7602. See United States v. McAnlis, 721 F.2d 334, 336 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2681, 81 L.Ed.2d 877 (1984); Uhrig v. United States, 592 F.Supp. 349, 353 (D.Md.1984). Thus, whether or not the Sloans are “taxpayers,” “employees,” or “persons liable for a tax” is simply irrelevant to the summons power granted in § 7602. Second, courts have rejected arguments that summonses should be quashed because the Internal Revenue Code does not apply to the persons being investigated. See McAnlis, 721 F.2d at 336; Johnson v. United States, 607 F.Supp. 347, 349 (E.D. Pa.1985); Uhrig, 592 F.Supp. at 353. That reasoning applies here with full force. Third, there is evidence to suggest that the Sloans are in fact subject to the Internal Revenue laws. At the October 3, 1985 hearing, Mr. Sloan indicated that he works for a division of General Motors. It is a safe assumption to make that he receives a wage for his work, and the law of this court, as well as the Seventh Circuit, is that “WAGES ARE INCOME” for purposes of taxation under the Code. Granzow v. Commissioner, 739 F.2d 265, 267 (7th Cir. 1984); United States v. Kaliboski, 732 F.2d 1328, 1328 n. 1 (7th Cir.1984); Snyder v. I.R.S., 596 F.Supp. 240, 249 (N.D.Ind. 1984); Cameron v. I.R.S., 593 F.Supp. 1540, 1552 (N.D.Ind.1984), aff'd, 733 F.2d 126 (7th Cir.1985). Sloan’s liability for taxes would exist whether or not he met the definition of “employee” under 26 U.S.C. § 3401(c). It is therefore clear that the summonses issued" }, { "docid": "18399453", "title": "", "text": "which was the “substantial equivalent” of a Justice Department referral as TEFRA was designed “to establish an unmistakable bright line which would end the protracted litigation over the issue____)” In sum, the allegations stated by Taxpayer do not rebut the Government’s prima facie case or showing of good faith. Further, Taxpayer is not entitled to an evidentiary hearing to meet his burden of so doing. “It is well settled that a party opposing an IRS summons must come forward with specific facts, under oath, from his own resources, demonstrating that a triable issue exists on a legally sufficient defense in order to justify an evidentiary hearing”. Godwin, supra, at 1215. Universal Life Church, supra, at 185. In this case at bar, one hearing has already been held in February, 1984, during which Taxpayer advanced just about the same allegations in support of his petitions to quash and in opposition to the Government’s motion to dismiss which he espouses at this time. For the reasons set forth supra in this opinion, those allegations are insufficient to enable Taxpayer to prevail herein. Accordingly, Taxpayer’s motion will be denied and the two third-party recordkeeping summonses issued to First National Bank and Prudential Bache will be enforced by Order of this Court to that effect which is being entered as of this date. . Taxpayer originally sought to quash ten IRS summonses in petitions filed on April 21, 1983; May 5, 1983; May 23, 1983; and July 21, 1983. Subsequently, on August 23, 1983, the United States filed a motion to dismiss all of Taxpayer’s petitions to quash. After a hearing was held in open court on February 17, 1984, this Court filed an Order on February 19, 1984 granting the motion of the United States to dismiss with respect to eight of the ten summonses. Thus, Taxpayer’s petition is currently pending only with respect to two IRS summonses. . See United States v. LaSalle National Bank, 437 U.S. 298, 313-14, 98 S.Ct. 2357, 2365-66, 57 L.Ed.2d 221 (1978); United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-55, 13 L.Ed.2d 112" }, { "docid": "5924029", "title": "", "text": "petitioners’ liabilities. In the present case, the government argues that the relevance of the records sought from Norwest and Garrett is self-evident and not contested by the petitioners. The summonses at issue seek financial transaction records on the petitioners for the years under investigation. This court agrees with the government that it is obvious that these records are likely to shed light on the petitioners’ income and on their income tax liabilities for the years under investigation. Next, the government points out that its evidence shows that the summoned information is not already in the possession of the IRS and all other requirements for enforcement of the summonses have been met. Renninger Declaration at ¶ 7; Orme Declaration at ¶ 8. As the last two elements of the prima facie case have been met, the burden now shifts to the petitioners to establish either an abuse of process or a valid defense to enforcement of the summonses. The government correctly argues that the petitioners have completely failed to raise a valid defense to the enforcement of the summonses. The petitioners simply assert that they are not “liable for any federal tax” and are not “required to perform any act” with respect to any federal tax. Arguments such as the ones the petitioners have raised have been specifically rejected by this court. See Sloan v. United States, 621 F.Supp. 1072, 1073 (N.D.Ind.1985; aff'd in part, appeal dismissed in part, 812 F.2d 1410 (7th Cir.1987)). The petitioners filed a response to the government’s motion on June 19, 1995. However, this response does not address the substantive merits of the government’s motion. Rather, the petitioners seek to have their petition to quash granted on procedural grounds. The petitioners note that the government has admitted that its Motion for Summary Denial was 116 days late. The petitioners argue that the government has failed to respond to their petition to quash in a timely fashion and, thus, their petition to quash should be granted pursuant to Rule 8(d) of the Federal Rules of Civil Procedure. The government argues that the relief the petitioners seek pursuant" }, { "docid": "10973294", "title": "", "text": "1982, Pub.L. No. 97-248, 96 Stat. 324 (“TE-FRA”). The seventh summons was served upon Segmond himself. Segmond is not a third-party recordkeeper, as defined by section 7609(a)(3) . Moreover, Segmond was not entitled to, and did not receive, notice of that summons (as one other than the person summoned about whom information was sought). Thus, the Court does not have jurisdiction over Segmond’s petition with respect to that summons. See Godwin v. United States, 564 F.Supp. 1209, 1211 (D.Del.1983). The petition insofar as it seeks to quash the summons to Segmond is therefore dismissed. Nonetheless, the Court does have jurisdiction over respondent’s cross-motion to compel compliance with all seven summonses, pursuant to section 7604. Since the enforceability of all seven summonses is properly before this Court in some manner, the Court will construe Segmond’s papers with respect to the summons issued to him as opposition to the respondent’s cross-motion and, so construed, will consider the arguments contained therein. The procedures and substantive law applicable to summons enforcement proceedings are the same irrespective of whether the proceeding was commenced by petition to quash or by motion to compel compliance. See Godwin, 564 F.Supp. at 1211-12. Thus, all seven summonses currently before the Court will be treated alike. The initial burden in a summons enforcement proceeding rests on the government to establish a prima facie case for the enforcement of the summonses. Id. at 1211. If the government satisfies this burden, then, and only then, does the burden fall on the taxpayer to show the impropriety of enforcement. See, e.g., United States v. LaSalle Nat’l Bank, 437 U.S. 298, 316, 98 S.Ct. 2357, 2367, 57 L.Ed.2d 221 (1978); United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964); see also Godwin, 564 F.Supp. at 1213. The Court finds that respondent has satisfied its burden of establishing a prima facie case for enforcement. The basic criteria applicable are as follows: that the investigation will be conducted pursuant to a legitimate purpose ... [2] [that] the inquiry may be relevant to the purpose, [3] that the information sought" }, { "docid": "11312768", "title": "", "text": "the government can rely on the voluntary compliance of third parties to effectuate the summons. Thus, when a taxpayer petitions to quash a summons, the government can move to dismiss the petition. Such a motion mirrors a 12(b)(6) motion to dismiss for failure to state a claim. See Jungles v. United States, 634 F.Supp. 585 (N.D.Ill.1986). In a motion to dismiss the petition, the government does not have to establish a Powell prima facie case. Instead, the burden shifts immediately to the petitioner to establish a valid defense to the summons. See Deleeuw v. I.R.S., 681 F.Supp. 402 (E.D.Mich.1987). Here the government does not seek to enforce the summonses. Relying on the voluntary compliance of the third-parties, the government moves only to dismiss the petition to quash. Accordingly, the burden of proof, in the first instance, shifts to petitioners to establish a proper defense to the summonses. Alleging solely that the IRS issued the summons as part of a “fishing expedition seeking information for criminal prosecution beyond any right or probable cause to do so____”, petitioner moves to quash the summons. Petition, paragraph 9. The IRS is precluded from issuing any summons once there is a Justice Department referral. See 26 U.S.C. § 7602(c); Garpeg, Ltd. v. United States, 583 F.Supp. 799 (S.D.N.Y.1984). In this case the IRS never issued such a referral. Therefore, the IRS may issue summonses to ascertain Mr. Cosme’s tax liabilities. Accordingly, petitioners claim that the summonses are part of a criminal investigation is irrelevant. Finally, petitioners’ argument that the summons amounts to a fishing expedition which lacks probable cause lacks merit. “Probable cause” is not the applicable standard in a tax summons cases. Instead, the government need show only that the records sought “might ... throw light upon the correctness of the taxpayer’s return.” United States v. Arthur Young & Co., 465 U.S. 805, 814, 104 S.Ct. 1495, 1501, 79 L.Ed.2d 826 (1984). Here, the government passes this low threshold standard. Mr. Cosme transacted business with all the third parties who were issued summonses. The records possessed by these third parties may throw light on" }, { "docid": "11312766", "title": "", "text": "motion. 26 U.S.C. § 7609(h)(1) limits federal district court jurisdiction to hear petitions to quash summonses; the proceeding to quash must be commenced only in the district where the summoned person resides or is found. Therefore, in a petition to quash a summons issued to a third-party recordkeeper, jurisdiction exists where the third-party resides or does business. See Masat v. United States, 745 F.2d 985 (5th Cir.1984); Bilodeau v. United States, 577 F.Supp. 234 (D.N.H.1983). The Royal Bank de Puerto Rico obviously resides in Puerto Rico. Therefore, this Court is without jurisdiction to hear petitioners’ motion to quash the two summonses issued to that third-party. Finally, the Court turns to the one summons which petitioners filed timely and in the correct jurisdiction, the Merrill Lynch summons. For the reason discussed below, their petition is denied. Normally, when a taxpayer moves to quash a third party summons, the government moves simultaneously to compel compliance with the summons. 26 U.S.C. § 7609(b)(2)(A). Under the standard set forth by the Supreme Court in United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), the government is entitled to enforcement of an IRS summons when it can present a prima facie case for enforcement, and the taxpayer fails to show sufficient facts indicating the existence of a defense to enforcement of the summons. Powell at 58, 85 S.Ct. at 255. A prima facie case for enforcement is established where the government can show; (1) the summons was issued for a legitimate purpose; (2) the inquiry may be relevant for that purpose; (3) the informa tion sought is not already within the government’s possession; and (4) the administrative steps required by the Internal Revenue Code for issuance and service of the summons have been followed. Powell, 379 U.S. at 57-58, 85 S.Ct. at 254-55. In an enforcement proceeding, once the government establishes a prima facie case, the petitioner must show sufficient facts to establish a defense to the summons. However, when faced with a petition to quash an IRS third-party summons, the government need not move to enforce the summons. Instead" }, { "docid": "18399440", "title": "", "text": "§ 7609(a). Thereafter, he filed the pending petitions to quash pursuant to section 7609(b) of the Tax Equity & Fiscal Responsibility Act of 1982, Pub.L. No. 97-248, 96 Stat. 324 (“TEFRA”). The United States, in addition to seeking summary denial of those petitions, seeks to compel compliance with the summonses. In that regard, it is to be noted that section 7609(b)(2)(A) of TEFRA “expressly authorizes the United States to seek enforcement of the summons[es] in the taxpayer’s proceeding [to quash].” Godwin v. United States, 564 F.Supp. 1209, 1212 (D.Del.1983) (footnote omitted); See also McTaggart v. United States, 570 F.Supp. 547, 549 (E.D. Mich.1983). Jurisdiction over the petitions to quash and the motion for summary enforcement is conferred upon this Court by virtue of Section 7609(b) of TEFRA. TEFRA established new procedures for the enforcement of IRS summonses. Section 7609 “reverse[d] the format of enforcement proceedings concerning third-party recordkeeper summonses.” Godwin v. United States, supra, at 1211. See also Universal Life Church, Hidden Valley Congregation v. United States, 573 F.Supp. 181, 183 (W.D.Va.1983). Prior to TEFRA, when the IRS summoned a taxpayer’s records from a third-party record-keeper, the taxpayer could prevent compliance with the summons simply by notifying the recordkeeper in writing that the taxpayer did not wish the recordkeeper to comply with the summons. S.Rep. No. 494, 97th Cong., 2d Sess. 281, reprinted in 1982 U.S.Code Cong. & Ad.News 781,1027. The United States then bore the burden of initiating an action to enforce the summons. “Section 7609 removes from the government the burden of enforcement and instead, requires the taxpayer to take affirmative action to quash the summons if he or she does not want the third-party record-keeper to comply with it.” Universal Life Church, supra, at 183. Specifically, the affected taxpayer is now required to file a petition to quash in the district court within 20 days of the IRS having given notice to the customer of the third-party recordkeeper summons. As noted above, the Government may then seek enforcement of the summons in the pending petition to quash proceeding. 26 U.S.C. § 7609(b)(2)(A). While TEFRA changed the procedures" }, { "docid": "12851128", "title": "", "text": "claim upon which the Court may grant relief. Fed.R. Civ.P. 12(b)(6). Additionally, the Government maintains the district court is without jursidiction to quash three out-of-district summonses since the United States has not waived its sovereign immunity with respect to an action seeking to quash summonses issued to out-of-district entities. II. Agent Coleman derives his power from § 7601(a) of Title 26. That provision directs the Secretary of the Treasury (or his delegate) to make inquiries into the tax liability of every person who may be liable to pay any Internal Revenue tax. To aid in an investigation, § 7602(a) and (b) authorize the examination of records, issuance of summonses, and taking of testimony for the purposes of: (1) “ascertaining the correctness of any return,” (2) “making a return where none has been made,” (3) “determining the liability of any person for any internal revenue tax,” and/or (4) “inquiring into any offense connected with the administration or enforcement of the internal revenue laws.” United States v. Euge, 444 U.S. 707, 710-11, 100 S.Ct. 874, 877-78, 63 L.Ed.2d 141 (1979); United States v. LaSalle Nat’l Bank, 437 U.S. 298, 308, 98 S.Ct. 2357, 2363, 57 L.Ed.2d 221 (1978); United States v. Particle Data, Inc., 634 F.Supp. 272, 276-77 (N.D.Ill.1986). In seeking to quash the summonses in question, Dennis attempts to take advantage of § 7609(b)(2)(A), a provision which expressly waives the sovereign immunity of the United States. It permits the taxpayer (or other person entitled under § 7609(a)(1) to notice of a summons), upon complying with the conditions of the waiver, to commence a proceeding against the United States to quash an IRS summons: Notwithstanding any other law or rule of law, any person who is entitled to notice of a summons under subsection (a) shall have the right to begin a proceeding to quash such summons not later than the 20th day after the day such notice is given in the manner provided in subsection (a)(2)____ See Stringer v. United States, 776 F.2d 274, 275 (11th Cir.1985); Abraham v. United States, 582 F.Supp. 257 (S.D.N.Y.), aff'd per curiam, 740 F.2d 2" }, { "docid": "18379256", "title": "", "text": "McAnlis, 721 F.2d at 336; Johnson v. United States, 607 F.Supp. 347, 349 (E.D. Pa.1985); Uhrig, 592 F.Supp. at 353. That reasoning applies here with full force. Third, there is evidence to suggest that the Sloans are in fact subject to the Internal Revenue laws. At the October 3, 1985 hearing, Mr. Sloan indicated that he works for a division of General Motors. It is a safe assumption to make that he receives a wage for his work, and the law of this court, as well as the Seventh Circuit, is that “WAGES ARE INCOME” for purposes of taxation under the Code. Granzow v. Commissioner, 739 F.2d 265, 267 (7th Cir. 1984); United States v. Kaliboski, 732 F.2d 1328, 1328 n. 1 (7th Cir.1984); Snyder v. I.R.S., 596 F.Supp. 240, 249 (N.D.Ind. 1984); Cameron v. I.R.S., 593 F.Supp. 1540, 1552 (N.D.Ind.1984), aff'd, 733 F.2d 126 (7th Cir.1985). Sloan’s liability for taxes would exist whether or not he met the definition of “employee” under 26 U.S.C. § 3401(c). It is therefore clear that the summonses issued in this case were issued properly, and the petitioners have offered no meritorious grounds to quash those summonses. Therefore, the motion to dismiss will be granted. With the dismissal of the petition to quash, the discovery motion must also be denied because it is no longer a part of any proceeding before this court. However, the motion itself deserves comment. It is clear that “a taxpayer’s discovery rights in a summons enforcement proceeding are very limited.” United States v. Price, 655 F.2d 56, 59 (5th Cir.1981). The ultimate burden is to show a lack of good faith. United States v. Kis, 658 F.2d 526, 539 (7th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982); United States v. Moll, 602 F.2d 134, 138 (7th Cir. 1982). Here, the only allegation of possible bad faith is the claim that because the Sloans submitted an affidavit averring that they are not taxpayers, the respondent’s continued pursuit of this matter constitutes bad faith, apparently justifying discovery of the documents which support the denial of" }, { "docid": "18399443", "title": "", "text": "See United States v. Cortese, 614 F.2d 914, 920 (3d Cir. 1980). Consequently, the summons power should continue to be liberally construed in light of the purposes it serves. See United States v. Euge, 444 U.S. 707, 714-16 [100 S.Ct. 874, 879-80, 63 L.Ed.2d 141] (1980). 564 F.Supp. at 1212. To establish a prima facie case for enforcement under both prior and current law, the Government must show that: (1) the investigation is being conducted for a legitimate purpose; (2) the information sought is relevant to that purpose; (3) the information is not already in the possession of the IRS; and (4) the administrative steps required by the Internal Revenue Code have been followed. In that connection, “[t]he requisite showing is generally made by affidavit of the agent who issued the summons and who is seeking enforcement.” United States v. Garden State National Bank, 607 F.2d 61, 68 (3d Cir. 1979), citing United States v. McCarthy, 514 F.2d 368, 372 (3d Cir.1975). “Indeed, ‘no more than [an affidavit] is necessary to make the prima facie case.’ ” Godwin, supra, at 1212, citing United States v. Kis, 658 F.2d 526, 536 (7th Cir.1981), cert. denied sub nom. Salkin v. United States, 455 U.S. 1018, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982). In the case at bar, the Government has filed a sworn declaration of Special Agent Morris in support of its enforcement motion. That declaration establishes all of the requisite elements of a prima facie case for enforcement of a third-party record-keeper summons. Accordingly, “[t]he burden therefore falls upon [the taxpayer] to disprove the existence of a valid purpose or to show that enforcement of the summonses would be an abuse of the Court’s process or otherwise would be improper.” Godwin, supra, at 1213. Taxpayer has failed to carry that burden. Taxpayer’s petitions to quash and his “Demand that IRS Summonses be Quashed,” filed April 18, 1984, assert a laundry list of conclusory assertions as to why the summonses should be quashed: (1) That the summonses were issued without jurisdiction; [April 21, 1983 Pet., 11II9 and 10 and April 18, 1984" }, { "docid": "12851133", "title": "", "text": "of his income tax liabilities or by the disclosure of the summoned information. Similarly, he has not submitted—by affidavit or otherwise—any evidence of his harassment by the Government, although such showings are the minimum necessary in order to establish a prima facie case of infringement of First Amendment rights. United States v. Freedom Church, 613 F.2d 316, 320 (1st Cir.1979); O’Neal v. United States, 601 F.Supp. 874, 879-80 (N.D.Ind.1985); Holderbaum v. United States, 589 F.Supp. 107, 112 (D.Colo.1984); Foss v. United States, 573 F.Supp. 957, 960-61 (D.Colo.1983). His First Amendment defense therefore falls short of the mark. Moving to Dennis’ assertion that the summonses are overbroad and seek irrelevant data, it is clear that this contention simply cannot be sustained. The summonses call for the production of data relating to Petitioner’s in-state and out-of-state transactions. Such data is potentially relevant to the determination of his correct tax liabilities. Moreover, the Service is not required to make a particularized showing of relevance, and the district court may not substitute its or the taxpayer’s judgment for that of the Service in determining what may be relevant. United States v. Arthur Young & Co., 465 U.S. 805, 814, 104 S.Ct. 1495, 1501, 79 L.Ed.2d 826 (1984); Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 323, 105 S.Ct. 725, 733, 83 L.Ed.2d 678 (1985). Nor does the summons power given to the IRS pursuant to § 7602 infringe upon the role of the grand jury or deprive the Petitioner of his Fifth Amendment right to indictment by a grand jury. United States v. DeGrosa, 405 F.2d 926, 929 (3d Cir.), cert. denied sub nom Zudick v. United States, 394 U.S. 973, 89 S.Ct. 1465, 22 L.Ed.2d 753 (1969); Mauroni v. United States, 84-2 U.S.T.C., ¶ 9705 (N.D.Cal.1984) [Available on WESTLAW-DCT database], Dennis’ challenge to the summonses’ breadth is without merit. Yet another argument is Dennis’ incredible (but not unique) theory that he is not a taxpayer; and therefore, the IRS has no “jurisdiction” to issue the summonses which he seeks to quash. This specious assertion, though denominated as a “jurisdictional” argument, is" }, { "docid": "19212789", "title": "", "text": "BALDOCK, Circuit Judge. To determine whether petitioner-appellant John E. Codner had violated any Internal Revenue laws, the Internal Revenue Service issued twelve administrative summonses to various third parties requesting financial information regarding Codner. Codner timely filed a petition to quash the summonses on various grounds. IRS answered and filed a petition to enforce six of the summonses issued to parties residing within the District of Utah. The district court determined that it lacked jurisdiction over the petition to quash the summonses issued to the five parties who did not reside in the district, see 26 U.S.C. § 7609(h)(1), and to the Church of Jesus Christ of Latter-Day Saints because the Church was not a third-party recordkeeper, see 26 U.S.C. § 7609(a)(3). It therefore dismissed the portion of Codner’s petition dealing with these six parties. After concluding that IRS had complied with the statutory requirements applicable to issuance of the remaining six summonses, the district court denied Codner’s petition to quash and granted IRS’s petition to enforce these summonses. Codner appeals. We have jurisdiction under 28 U.S.C. § 1291. IRS has broad authority to issue summonses in support of its efforts to determine taxpayers’ tax liabilities. See 26 U.S.C. §§ 7601, 7602; United States v. Arthur Young & Co., 465 U.S. 805, 816, 104 S.Ct. 1495, 1502, 79 L.Ed.2d 826 (1984). To enforce the summonses, IRS must show “that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the [IRS] Commissioner’s possession, and that the administrative steps required by the Code have been followed. ...” United States v. Balanced Fin. Mgmt., Inc., 769 F.2d 1440, 1443 (10th Cir.1985) (quoting United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964)). IRS met its burden of showing the prima facie legitimacy of the summonses in this case through the affidavit of the special agent who issued them. See id. (IRS’s burden is “slight” and is generally met through affida vit of agent issuing summons and seeking enforcement). Codner challenges" }, { "docid": "12851136", "title": "", "text": "v. Will, 475 F.Supp. 492, 494 (M.D.Fla.1979). In sum, the petition in this case utterly fails to state a claim upon which the district court may grant relief. It raises absolutely no valid claim or defense to support quashing the summonses. Under such circumstances, a proceeding to quash, like any other civil action, should be dismissed. Fed.R.Civ.P. 12(b)(6); Jungles, 634 F.Supp. at 586; O’Neal, 601 F.Supp. at 877 n. 1; Sloan v. United States, 621 F.Supp. 1072, 1073-74 (N.D.Ind.1985), aff'd in part, dismissed in part, 812 F.2d 1410 (1987); Maikranz v. United States, 612 F.Supp. 590, 592 (S.D.Ind.1985). And this one is! Cause DISMISSED. Case CLOSED. IT IS SO ORDERED. . Three of the summoned entities—Monroe Savings Bank, Teleconnect, and Illinois Bell—neither reside in, nor are found in, the Central District of Illinois. On the other hand, Millikin National Bank, First Federal Savings and Loan Association, and Credit Bureau of Decatur, Inc., each reside and are found within the geographical district of this Court. . The Court also concludes Dennis has failed to demonstrate that his situation uniquely excepts him from the well established principle that the taxing power of the United States of America extends to every individual who is a citizen or resident of this nation. 26 C.F.R. § 1.1—1(a)(1); Cook v. Tait, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895 (1924); Templeton v. Internal Revenue Service, 650 F.Supp. 202, 204-05 (N.D.Ind.1985). Dennis’ next argument—that he has been characterized by the IRS as an \"illegal tax protestor\"—even if true, provides an insufficient basis upon which to quash an IRS summons. United States v. Pillsbury Credit Union, 661 F.2d 1195 (8th Cir.1981); Reed v. United States, 592 F.Supp. 200, 203 (S.D.Ohio 1984)." }, { "docid": "18275302", "title": "", "text": "who issued the summons, Godwin v. United States, 564 F.Supp. 1209, 1212 (D.Del.1983), showing: (1) that the investigation will be conducted for a legitimate purpose, (2) that the data sought is relevant to that purpose, (3) that the data being sought is not already in the possession of the I.R.S., and (4) that the administrative steps required by the Internal Revenue Code have been followed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964). In addition, 26 U.S.C. § 7602(b), (e) appears to require an additional showing that there has been no “Justice Department referral.” In this case, Agent Richard Uhrlass has sworn in his affidavit to the above requirements, including the giving of notice by certified mail as required by § 7609(a). Despite petitioner’s allegations to the contrary, government exhibits 1(a), 1(b) and 1(c) show proof of service. Thus, the I.R.S. has established its prima facie case of proper issuance. The burden is on petitioner to rebut the government’s showing of valid issuance. In order to be permitted to obtain discovery and an evidentiary hearing, petitioner must come forward with specific facts from his own resources, in sworn form, demonstrating that a triable issue exists on a legally sufficient defense. United States v. Morgan Guaranty Trust Co., 572 F.2d 36, 39-42 (2d Cir.1978); Godwin, supra. The petitioner’s burden is to make a “substantial preliminary showing” of the alleged abuse. United States v. Tiffany Fine Arts, Inc., 718 F.2d 7, 14 (2d Cir.1983). The Tiffany Fine Arts standard is in accord with the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub.L. No. 97-248, which amended 26 U.S.C. § 7602 to create a “bright line” test for assessing the proper purpose of a summons. The Senate Finance Committee reported one reason for the statutory change was that prior case law had “spawned protracted litigation without any meaningful results for the taxpayer. Yet, summons enforcement proceedings should be summary in nature and discovery should be limited.” S.Rep. No. 494, 97th Cong., 2d Sess. 285, Reprinted in 1982 U.S.Code Cong. & Ad.News No. 7," }, { "docid": "18275301", "title": "", "text": "The petition to quash is also dismissed with respect to those summonses identified as L and M, directed to Ira Gelfman, because Gelfman, the third-party recordkeeper, does not reside in, nor can he be found in, this district. See 26 U.S.C. § 7609(h)(1). Indeed, petitioner has already brought suit in California to quash those summonses. While the government clearly may issue a summons to someone out of this district, and the recordkeeper could choose to comply, the I.R.S. could not enforce that summons in this district, § 7604(a), nor can the taxpayer move to quash it here, § 7609(h)(1). The only summonses properly before this court, then, are the three issued to the Connecticut accountants, who are third-party recordkeepers of tax records of Ralph and Jeanne Smith. Petitioner has challenged these summonses on a multitude of grounds. For the court to enforce the summonses, it must first be found that the government has established a prima facie case of proper issuance. The government may establish its prima facie case through the affidavit of the agent who issued the summons, Godwin v. United States, 564 F.Supp. 1209, 1212 (D.Del.1983), showing: (1) that the investigation will be conducted for a legitimate purpose, (2) that the data sought is relevant to that purpose, (3) that the data being sought is not already in the possession of the I.R.S., and (4) that the administrative steps required by the Internal Revenue Code have been followed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964). In addition, 26 U.S.C. § 7602(b), (e) appears to require an additional showing that there has been no “Justice Department referral.” In this case, Agent Richard Uhrlass has sworn in his affidavit to the above requirements, including the giving of notice by certified mail as required by § 7609(a). Despite petitioner’s allegations to the contrary, government exhibits 1(a), 1(b) and 1(c) show proof of service. Thus, the I.R.S. has established its prima facie case of proper issuance. The burden is on petitioner to rebut the government’s showing of valid issuance. In order to be" }, { "docid": "5924030", "title": "", "text": "of the summonses. The petitioners simply assert that they are not “liable for any federal tax” and are not “required to perform any act” with respect to any federal tax. Arguments such as the ones the petitioners have raised have been specifically rejected by this court. See Sloan v. United States, 621 F.Supp. 1072, 1073 (N.D.Ind.1985; aff'd in part, appeal dismissed in part, 812 F.2d 1410 (7th Cir.1987)). The petitioners filed a response to the government’s motion on June 19, 1995. However, this response does not address the substantive merits of the government’s motion. Rather, the petitioners seek to have their petition to quash granted on procedural grounds. The petitioners note that the government has admitted that its Motion for Summary Denial was 116 days late. The petitioners argue that the government has failed to respond to their petition to quash in a timely fashion and, thus, their petition to quash should be granted pursuant to Rule 8(d) of the Federal Rules of Civil Procedure. The government argues that the relief the petitioners seek pursuant to Rule 8(d) is essentially a default judgment against the United States, governed by the rules regarding default judgments, Rule 55(e). Rule 55(e) states: Judgment Against the United States. No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court. . Rule 55(e) requires that, with respect to actions against the United States, the plaintiff must address and the court must review the merits of a plaintiffs claims before the plaintiff may prevail by default judgment. United States v. Geisler, 174 F.2d 992, 999 (7th Cir.1949). See also Dimmitt & Owens Financial, Inc. v. United States, 787 F.2d 1186, 1193 (7th Cir.1986). The government points out that the petitioners have completely failed to address the merits of the issues raised. Again, this court agrees with the government. The petitioners have simply not stated any legitimate basis on which to grant their petition. Conclusion For all of the foregoing reasons, the government’s Motion for" }, { "docid": "11312767", "title": "", "text": "U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), the government is entitled to enforcement of an IRS summons when it can present a prima facie case for enforcement, and the taxpayer fails to show sufficient facts indicating the existence of a defense to enforcement of the summons. Powell at 58, 85 S.Ct. at 255. A prima facie case for enforcement is established where the government can show; (1) the summons was issued for a legitimate purpose; (2) the inquiry may be relevant for that purpose; (3) the informa tion sought is not already within the government’s possession; and (4) the administrative steps required by the Internal Revenue Code for issuance and service of the summons have been followed. Powell, 379 U.S. at 57-58, 85 S.Ct. at 254-55. In an enforcement proceeding, once the government establishes a prima facie case, the petitioner must show sufficient facts to establish a defense to the summons. However, when faced with a petition to quash an IRS third-party summons, the government need not move to enforce the summons. Instead the government can rely on the voluntary compliance of third parties to effectuate the summons. Thus, when a taxpayer petitions to quash a summons, the government can move to dismiss the petition. Such a motion mirrors a 12(b)(6) motion to dismiss for failure to state a claim. See Jungles v. United States, 634 F.Supp. 585 (N.D.Ill.1986). In a motion to dismiss the petition, the government does not have to establish a Powell prima facie case. Instead, the burden shifts immediately to the petitioner to establish a valid defense to the summons. See Deleeuw v. I.R.S., 681 F.Supp. 402 (E.D.Mich.1987). Here the government does not seek to enforce the summonses. Relying on the voluntary compliance of the third-parties, the government moves only to dismiss the petition to quash. Accordingly, the burden of proof, in the first instance, shifts to petitioners to establish a proper defense to the summonses. Alleging solely that the IRS issued the summons as part of a “fishing expedition seeking information for criminal prosecution beyond any right or probable cause to do so____”," }, { "docid": "12851135", "title": "", "text": "truly a challenge to the statutory authority of the IRS and has been consistently rejected. The reasoning upon which it depends is circular, and the conclusion fallacious. Ponsford v. United States, 771 F.2d 1305, 1307 (9th Cir.1985); United States v. McAnlis, 721 F.2d 334, 336 (11th Cir.1983), cert. denied, 467 U.S. 1227, 104 S.Ct. 2681, 81 L.Ed.2d 877 (1984); Uhrig v. United States, 592 F.Supp. 349, 353 (D.Md.1984); Reed, v. United States, 592 F.Supp. 200 at 203; Cienkus v. United States, 57 AFTR 2d 86-882 (N.D.Ill.1985) [Available on WESTLAW-DCT database]. Finally, the Privacy Act, 5 U.S.C. § 552a, does not require compliance with its terms as a prerequisite to the valid issuance, service, or subsequent judicial enforcement of an IRS summons. Contrary to Dennis’ assertions, that law does not contain any provision which allows either the quashing or denial of enforcement of a summons as a remedy for any alleged failure to maintain secrecy. McAnlis, 721 F.2d at 337; Uhrig, 592 F.Supp. at 353; McTaggert v. United States, 570 F.Supp. 547, 550 (E.D.Mich.1983); United States v. Will, 475 F.Supp. 492, 494 (M.D.Fla.1979). In sum, the petition in this case utterly fails to state a claim upon which the district court may grant relief. It raises absolutely no valid claim or defense to support quashing the summonses. Under such circumstances, a proceeding to quash, like any other civil action, should be dismissed. Fed.R.Civ.P. 12(b)(6); Jungles, 634 F.Supp. at 586; O’Neal, 601 F.Supp. at 877 n. 1; Sloan v. United States, 621 F.Supp. 1072, 1073-74 (N.D.Ind.1985), aff'd in part, dismissed in part, 812 F.2d 1410 (1987); Maikranz v. United States, 612 F.Supp. 590, 592 (S.D.Ind.1985). And this one is! Cause DISMISSED. Case CLOSED. IT IS SO ORDERED. . Three of the summoned entities—Monroe Savings Bank, Teleconnect, and Illinois Bell—neither reside in, nor are found in, the Central District of Illinois. On the other hand, Millikin National Bank, First Federal Savings and Loan Association, and Credit Bureau of Decatur, Inc., each reside and are found within the geographical district of this Court. . The Court also concludes Dennis has failed to demonstrate that" }, { "docid": "12851132", "title": "", "text": "F.2d 1079, 1082 (6th Cir.1983), cert. denied 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984). Furthermore, even if a third-party record-keeper could assert a taxpayer’s Fifth Amendment rights, the “taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminatory writing ...” Fisher, 425 U.S. at 410, n. 11, 96 S.Ct. at 1580, n. 11. See also United States v. Porter, 711 F.2d 1397, 1400 (7th Cir.1983). Likewise, Dennis’ rights under the Fourth Amendment are not implicated by the compelled production since he has no legitimate expectation of privacy in the contents of documents he knows must be disclosed in his tax returns. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); Couch, 409 U.S. at 322, 93 S.Ct. at 611, 34 L.Ed.2d at 548; Weingarden, 473 F.2d at 458, n. 4. Dennis has next failed to demonstrate specifically how his associational and expression rights claimed under the First Amendment are chilled by the IRS investigation of his income tax liabilities or by the disclosure of the summoned information. Similarly, he has not submitted—by affidavit or otherwise—any evidence of his harassment by the Government, although such showings are the minimum necessary in order to establish a prima facie case of infringement of First Amendment rights. United States v. Freedom Church, 613 F.2d 316, 320 (1st Cir.1979); O’Neal v. United States, 601 F.Supp. 874, 879-80 (N.D.Ind.1985); Holderbaum v. United States, 589 F.Supp. 107, 112 (D.Colo.1984); Foss v. United States, 573 F.Supp. 957, 960-61 (D.Colo.1983). His First Amendment defense therefore falls short of the mark. Moving to Dennis’ assertion that the summonses are overbroad and seek irrelevant data, it is clear that this contention simply cannot be sustained. The summonses call for the production of data relating to Petitioner’s in-state and out-of-state transactions. Such data is potentially relevant to the determination of his correct tax liabilities. Moreover, the Service is not required to make a particularized showing of relevance, and the district court may not substitute its or the taxpayer’s judgment for that" }, { "docid": "5317851", "title": "", "text": "of later proceedings. Kurshan, 484 F.2d at 953. We therefore hold that the summoned party’s compliance with the enforcement order challenged in No. 88-1320 renders the petitioner’s appeal of that order moot. In turn, we dismiss the appeal and remand the case to the United States District Court for the Eastern District of Virginia with directions that it vacate its enforcement order and dismiss the petition to quash without prejudice to the appellants’ right to seek appropriate relief in subsequent proceedings. See United States v. Kis, 658 F.2d 526, 535 (7th Cir.1981); Kurshan, 484 F.2d at 953. Ill What remains is to decide whether the district court erred by granting the IRS’s motion for summary enforcement of the summonses challenged in No. 88-Í347. As indicated, the Hintzes claim that the CID sought their financial records for “improper purposes,” and that they were therefore entitled to an order quashing the summonses. In the alternative, they seek a limited remand, arguing that the district court should have permitted discovery and scheduled an evidentiary hearing on the underlying petition to quash. Because it turned on a resolution of the fact-specific question of whether the IRS issued the challenged summonses for legitimate purposes, we review the district court’s denial of the Hintzes’ petition to quash and its subsequent issuance of a summary enforcement order under the clearly erroneous standard. See Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir.1988); Ponsford v. United States, 771 F.2d 1305, 1307 (9th Cir.1985). Similarly, we review the district court’s decision to deny an evidentiary hearing under the comparably deferential, “abuse of discretion” standard. United States v. Author Services, Inc., 804 F.2d 1520, 1523 (9th Cir.1986), A Section 7602 of the Internal Revenue Code gives the IRS authority to issue administrative summonses to taxpayers and third-party recordkeepers “[f]or the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax ..., or collecting any such liability.” 26 U.S.C. § 7602(a). This provision “endow[s] the IRS with ‘expansive information gathering authority,’ ” United" } ]

[ { "docid": "22686906", "title": "", "text": "or upon a determination that the controlling legal principles would in any event be no different under maritime law. 245 F. 2d 175. Certiorari was granted to examine both of these issues. 355 U. S. 902. The District Court was in error in ruling that the governing law in this case was that of the State of New York. Kermarec was injured aboard a ship upon navigable waters. It was there that the conduct of which he complained occurred. The legal rights and liabilities arising from that conduct were therefore within the full reach of the admiralty jurisdiction and measurable by the standards of maritime law. See The Plymouth, 3 Wall. 20; Philadelphia, W. & B. R. Co. v. Philadelphia & Havre de Grace Steam Tugboat Co., 23 How. 209, 215; The Commerce, 1 Black 574, 579; The Rock Island Bridge, 6 Wall. 213, 215; The Belfast, 7 Wall. 624, 640; Leathers v. Blessing, 105 U. S. 626, 630; The Admiral Peoples, 295 U. S. 649, 651. If this action had been brought in a state court, reference to admiralty law would have been necessary to determine the rights and liabilities of the parties. Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 259. Where the plaintiff exercises the right conferred by diversity of citizenship to choose a federal forum, the result is no different, even though he exercises the further right to a jury trial. Whatever doubt may once have existed on that score was effectively laid to rest by Pope & Talbot, Inc., v. Hawn, 346 U. S. 406, 410-411. It thus becomes necessary to consider whether prejudice resulted from the court’s application of the substantive law of New York. In instructing the jury that contributory negligence on Kermarec’s part would operate as a complete bar to recovery, the district judge was clearly in error. The jury should have been told instead that Kermarec’s contributory negligence was to be considered only in mitigation of damages. The Max Morris, 137 U. S. 1; Pope & Talbot, Inc., v. Hawn, 346 U. S. 406, 408-409. It is equally clear, however," } ]

[ { "docid": "8619306", "title": "", "text": "550 (1959). Moreover, Dearborn’s situation is different from that of the platform defendants whose breaches of duty were platform-related, while Dearborn’s concurring breaches were admiralty-related. As between platform defendants and Monk, the only nexus with admiralty was Monk’s presence aboard the vessel. In this context it is consistent with the rationale of Rodrigue and the teachings of Executive Jet and Peytavin that the surrogate law of the platform controls the controversy. In the context of Monk versus Dearborn, however, the interest of admiralty intervenes because the risks to which Monk was exposed by Dearborn, and Dearborn’s breaches thereof, were admiralty-related, concerning the duty of the vessel to those aboard her. Under the former “locality” test for determining admiralty jurisdiction, if Monk were a dock worker who, on like facts and with like consequences, had left the dock and gone aboard the CARRYBACK tied up nearby, his claim would have been in admiralty. After Executive Jet, Peytavin and Kelly the result would be the same, since there would be involved both locality and the relationship to admiralty previously recognized in Kermarec. As Rodrigue points out, the platform is like a pier. Rodrigue did not, by making land law the surrogate law of the platform, give it greater application off the platform in an admiralty-related situation than the land law would have off the pier in like circumstances. The interests vindicated in Rodrigue were, first, the status of the platform worker as land-related, and, second, the interest of the state in the process of extracting minerals from the soil and its particular capacity to deal with that subject matter as against admiralty’s incapacity. Here there are also present matters which admiralty is particularly adapted to handle and land law is not. Admiralty’s jurisdiction over the Monk claim against Dearborn is not ousted. 3. Dearborn’s liability, a. Negligence. The District Court ruled that Dearborn breached a legal duty owing to Monk because its skipper, Armstrong, was negligent in mooring his ship with a seventy-five foot rope to the platform’s leeward side, which negligence was causally related to deaths of the crew and of" }, { "docid": "21905349", "title": "", "text": ". See, e.g., Oliver v. Aminoil, USA, Inc., 662 F.2d 349 (5th Cir. 1981) (per curiam); Bible v. Chevron Oil Co., 460 F.2d 1218 (5th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 35 L.Ed.2d 248 (1972); Bertrand v. Forest Corp., 441 F.2d 809 (5th Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 106, 30 L.Ed.2d 107 (1971). In Rodrigue itself, one of the decedents, Doré, was killed when he fell onto a barge moored next to the platform. Rodrigue, supra, 395 U.S. at 353, 89 S.Ct. at 1836, 23 L.Ed.2d at 363. . However, we sustained Monk’s admiralty claims against the owner of the standby vessel, as well as the admiralty claims of the captain and crew members of that vessel against the platform defendants. See 499 F.2d at 276, 286. . [C]oncerns about the close relationships between platform workers and their adjacent states and about the non-maritime character of platform operations indicate to us that Congress did not intend that application of state law necessarily should cease at the physical boundaries of the platform. The same concerns may be equally applicable to accidents fortuitously consummated in the surrounding sea. While Monk’s death occurred on the high seas, there is little to choose between his relationship to the adjacent state and those of his fellow platform workers. He was by all standards a platform worker. The time he spent aboard the [standby ship] was primarily in pursuit of such platform-related duties as filling out work reports and communicating with his shoreside office. Dearborn, supra, 499 F.2d at 273 (emphasis added). . Cf. Kimble v. Noble Drilling Corp., 416 F.2d 847 (5th Cir. 1969), cert. denied, 397 U.S. 918, 90 S.Ct. 924, 25 L.Ed.2d 99 (1970). There, we upheld admiralty jurisdiction over a seaman’s injury claim even though the injury was received on a fixed platform. The Outer Continental Shelf Lands Act does not oust admiralty law having a basis of applicability independent from the location of the platforms at sea; indeed, it specifically provides that the general law of the upland state is made the applicable federal law" }, { "docid": "21905331", "title": "", "text": "ball of oil” rose above the platform. Carried by the wind, the ball of fire engulfed the standby vessel, killing all aboard. Monk’s heirs sought to maintain a suit against the platform defendants for negligence under the DOHSA and general maritime law. The district court sustained admiralty jurisdiction over these claims. We reversed, concluding that “§ 1333(a)(2) of the [OCSLA], when read against the background of legislative history outlined in Ro-drigue and the increasing judicial and legislative dissatisfaction with strict locality as the sole test of jurisdiction, precludes us from treating Monk’s claim against [the platform defendants] as a suit in admiralty.” 499 F.2d at 276. Texaco and Pool argue that Kolb’s claim against them is indistinguishable from Monk's claim against the platform defendants in Dearborn, in that in both cases, platform-based negligence had its first impact on the decedent on or over the high seas and not on the platform. Although the two situations are alike in that regard, there is a critical difference between Monk’s status as a “platform worker” and Kolb’s status as the pilot of an aircraft in navigation. The basic thrust of the Dearborn opinion holding Monk limited to state law remedies (as against the platform defendants) is that Monk, as a platform worker, was only fortuitously on a vessel at the time of the explosion and that, otherwise, there was virtually nothing to distinguish between him and his fellow platform-workers who perished on the platform. Kolb, by contrast, cannot be considered a “platform worker” under any standard. Instead, his duties constantly carried him back and forth above the high seas over the outer Continental Shelf. Moreover, Kolb’s death claim, considered apart from its relationship to the OCSLA, was clearly within admiralty jurisdiction. As we have already noted, the simple fact that Kolb’s death occurred as a result of an aircraft crash into the high seas is alone enough to confer jurisdiction under the DOHSA. Even apart from this “special treatment” accorded airplane crash victims, there would still be admiralty jurisdiction over Kolb’s accident, as we show below in regard to Petroleum Helicopters’ property claim" }, { "docid": "20564688", "title": "", "text": "vessel. Using a liberal application of the admiralty doctrine of comparative negligence, the Dearborn group will have its property damage recovery reduced by 25%. Since Dearborn could and did sue all the other defendants, C & K, DEI, and Chapman will all share equally in the payment of property damages to Dearborn after the 25% reduction is made from the total recovery. See generally, Horton, supra. Dearborn must give credit on such damages to the extent Dearborn receives any payment from the amount agreed to be paid by Chapman in settlement of all property damage claims against it. Because DEI breached, the contractual agreement to obtain written indemnity agreements from all subcontractors, DEI must bear C & K’s portion of the damages recoverable to Dearborn for the destruction of the CARRYBACK. As previously discussed, this catastrophe brought about the death of Captain Armstrong, CARRYBACK crew members Cassel and Love, Chapman employee welder Mr. Gaspard, and DEI supervisor Mr. Monk. The evidence reflects that Captain Armstrong’s body was recovered in the sea; that Mr. Cassel’s body was found in his bunk aboard the CARRYBACK; that Mr. Love’s body was never found; and that the remains which were identified as those of Mr. Monk were found on the foredeck of the CARRYBACK. A careful review of the evidence relating to this catastrophe causes this court to conclude that Captain Armstrong more than likely lived long enough to jump overboard in an attempt to save himself, and, consequently, there was some period of time in the neighborhood of five to fifteen minutes during which Captain Armstrong lived and suffered extreme conscious pain and suffering. The court has concluded that an award of $25,000 to the estate and heirs of Captain Armstrong for conscious pain and suffering would be appropriate. At the same time, the court must conclude for the reasons heretofore stated that Captain Armstrong was himself guilty of acts of negligence that were a cause in whole or in part of his death and the deaths of the others aboard the CARRY-BACK and the damages to the CARRY-BACK. Therefore, the total sum" }, { "docid": "8619289", "title": "", "text": "contests the District Court’s rulings on its negligence. Dearborn contests the rulings on its negligence and unseaworthiness. C & K and DEI do not contest findings of fault on their part but contest certain legal consequences thereof. Monk’s heirs sought to maintain their suit against Dearborn for negligence and unseaworthiness under the general maritime law and the Death on the High Seas Act, 46 U.S.C. §§ 761-768. Representatives of the deceased crew members added to these contentions a claim for negligence under the Jones Act, 46 U.S.C. § 688. All four estates alleged that DOHSA and the general maritime law provide a federal cause of action against the platform defendants — C & K, DEI, and Chapman —but, as we will explore later, there is a question whether these claims fall within § 1333 of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., which prescribes the applicable law for the subsoil of the outer Continental Shelf and for artificial islands permanently affixed thereto. For the present we need only observe that the death claims against all defendants were properly in federal district court under either the Jones Act or DOHSA or fell within the Lands Act. There are two main issues — whether land law or admiralty law covers the claim of Monk against Dearborn, and whether manning and inspection requirements of federal statutes and regulations apply to the CARRYBACK. Determination of the second of these bears on the findings that Dearborn was negligent and the CARRYBACK unseaworthy, which in turn may affect, at least, limitation of liability, relative fault between the defendants, and the extent of Monk’s comparative fault. Untangling these skeins and setting out various alternatives would require a catalogue of instructions to the District Court on remand that would be neither useful nor practical. We therefore decide the issues presented as best we can, vacate the judgment of the District Court, and remand for further proceedings. 1. Consolidation. A threshold question is whether the District Court correctly consolidated Dearborn’s limitation petition, filed pursuant to 46 U.S.C. § 185, with the Armstrong death action" }, { "docid": "8619298", "title": "", "text": "all standards a platform worker. The time he spent aboard the CARRYBACK was primarily in pursuit of such platform-related duties as filling out work reports and communicating with his shoreside office. Also, his claim against C & K and Chapman rests on the theory that they performed the renovation project on the platform in an unreasonably unsafe manner, and, as Rodrigue teaches, Congress felt that accidents caused by such operations were more significantly tied to the interests of the adjacent state than to the admiralty's interest in maritime commerce. Post-Rodrigue case law in this circuit supports a view that Congress intended by § 1333 to extend the law of the adjacent state to claims such as the one in issue. Twice we have found maritime law inapplicable to claims by platform workers pushed into surrounding seas by platform-based equipment, even though substantial injuries may have been physically caused by the water itself. See Bible v. Chevron Oil Co., 460 F.2d 1218 (CA5), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 35 L.Ed.2d 248 (1972); Bertrand v. Forest Corp., 441 F.2d 809 (CA5), cert. denied, 404 U.S. 863, 92 S.Ct. 106, 30 L.Ed.2d 107 (1971). In Rodrigue itself one of the decedents was killed when he fell onto a barge moored next to the platform. The distinction between the suitors in these cases and one in the position of Monk, fortuitously positioned at sea at the time of explosion, is at best elusive. We might say that in the earlier post-Rodrigue cases a tort originating on the platform cast its victims into the sea, whereas in Monk’s case the tor,t travelled for approximately seventy-five feet across the water to find its victim, but it seems illogical to assume that Congress would have grounded the choice between maritime and state law on a distinction so lacking in substance. Other developments' in the law of admiralty jurisdiction point toward treating Monk’s claim against the platform defendants as under the law of the adjacent state. Historically maritime jurisdiction has been measured by the locality of the wrong with locality defined as where the “substance" }, { "docid": "20564687", "title": "", "text": "to comply with the safety regulations does not constitute any breach of duty that C & K owed to DEI because DEI contractually assumed this responsibility as between C & K and DEI. C & K owed no duty in this respect to DEI and C & K’s negligence as discussed above does not constitute a bar to a recovery by C & K against DEI for property damage to the platform and expenses incident to cleaning the beaches. Of course, C & K must give credit on such damages to the extent C & K receives any payment from the amount agreed to be paid by Chapman in settlement of property damage claims as between C & K and Chapman. As to the Dearborn group’s claim for property damage to the vessel, the CARRYBACK (stipulated to be $129,500) all the defendants, C & K, DEI, Chapman, and the Dearborn group itself, were responsible, as discussed above, for the chain of events and conditions that brought about the explosion, fire, and ultimate destruction of the vessel. Using a liberal application of the admiralty doctrine of comparative negligence, the Dearborn group will have its property damage recovery reduced by 25%. Since Dearborn could and did sue all the other defendants, C & K, DEI, and Chapman will all share equally in the payment of property damages to Dearborn after the 25% reduction is made from the total recovery. See generally, Horton, supra. Dearborn must give credit on such damages to the extent Dearborn receives any payment from the amount agreed to be paid by Chapman in settlement of all property damage claims against it. Because DEI breached, the contractual agreement to obtain written indemnity agreements from all subcontractors, DEI must bear C & K’s portion of the damages recoverable to Dearborn for the destruction of the CARRYBACK. As previously discussed, this catastrophe brought about the death of Captain Armstrong, CARRYBACK crew members Cassel and Love, Chapman employee welder Mr. Gaspard, and DEI supervisor Mr. Monk. The evidence reflects that Captain Armstrong’s body was recovered in the sea; that Mr. Cassel’s body" }, { "docid": "21905332", "title": "", "text": "as the pilot of an aircraft in navigation. The basic thrust of the Dearborn opinion holding Monk limited to state law remedies (as against the platform defendants) is that Monk, as a platform worker, was only fortuitously on a vessel at the time of the explosion and that, otherwise, there was virtually nothing to distinguish between him and his fellow platform-workers who perished on the platform. Kolb, by contrast, cannot be considered a “platform worker” under any standard. Instead, his duties constantly carried him back and forth above the high seas over the outer Continental Shelf. Moreover, Kolb’s death claim, considered apart from its relationship to the OCSLA, was clearly within admiralty jurisdiction. As we have already noted, the simple fact that Kolb’s death occurred as a result of an aircraft crash into the high seas is alone enough to confer jurisdiction under the DOHSA. Even apart from this “special treatment” accorded airplane crash victims, there would still be admiralty jurisdiction over Kolb’s accident, as we show below in regard to Petroleum Helicopters’ property claim arising from this same accident. See Part IIC infra. In products liability cases, admiralty jurisdiction has repeatedly been extended to cases in which death or injury occurred on navigable waters even though the wrongful act occurred on land. The place where the negligence or wrongful act occurs is not decisive. The place injury occurs and the function the injured person was performing at the time are more significant. In these respects, the Kolb claim is different from Monk’s claim in Dearborn and similar to the claims of the vessel’s captain and crew members in that case. Unlike both Monk and the workers considered in Rodrigue, the helicopter pilot was engaged in a maritime-type function, transporting persons over the seas. We hold, therefore, that admiralty jurisdiction over Kolb’s claim against nonemployer third parties is not ousted by section 1333(a) of the OCSLA. C. The Property Damage Claim Petroleum Helicopters’ claim for property damage to its helicopter, sustained as a result of the same accident which claimed Kolb’s life is patently not affected by DOH-SA. In Executive" }, { "docid": "8619291", "title": "", "text": "for trial in Houston. District courts have broad discretion under Fed.R.Civ.P. 42(a) to consolidate causes pending in the same district. See generally 9 Wright & Miller, Federal Practice & Procedure § 2384, at 272 (1971). In this case there was no jurisdictional impediment to consolidation because both the Armstrong suit and the limitation proceeding independently invoked federal jurisdiction. Since the actions presented common issues of law and fact, consolidation saved the parties from wasteful relitigation in disparate forums, avoided duplication of judicial effort, and did not prejudice Dearborn’s right to prove entitlement to limitation. The District Court did not abuse its discretion in ordering consolidation. 2. The governing law and Monk’s contributory negligence. The District Court found Dearborn, Chapman, and C & K jointly and severally liable for the death of Monk, DEI’s supervisor. Monk was basically a platform worker, but he spent part of his time aboard the CARRYBACK, completing his work reports and using the ship’s short-wave radio to communicate with DEI’s shoreside office. He was on the CARRYBACK when the explosion occurred. The court found that Monk’s inadequate supervision of platform operations contributed to his death to the extent of 25%. The District Court recognized that under Rodrigue Texas law applied to platform-based deaths and injuries, but reasoned that because Monk died at sea the claim for his death, as against all defendants, was within maritime jurisdiction. Accordingly it applied admiralty’s beneficent doctrine of comparative negligence to permit recovery by the Monk heirs against Dearborn, Chapman and C & K, reduced by 25%. Under Texas law contributory negligence is a bar to recovery in a negligence action. “The doctrine of comparative negligence, which apportions liability between the parties according to the relative degree of their negligence, does not exist in Texas, except by virtue of statute in actions between certain employers and their employees.” 40 Tex. Jur. 2d Negligence § 97, at 602-03 (1962) (footnotes omitted). Chapman and C & K — the two platform defendants held liable on the Monk claim — vigorously urge that as against them Texas law controlled so that Monk’s contributory negligence" }, { "docid": "8619305", "title": "", "text": "nearly comparable to the case before us if the claim asserted against the plant had been that of the plant superintendent, aboard the vessel as neither crewman nor as passenger in the usual sense but using the' vessel to perform plant-related duties at the time vision was obscured by smoke and fumes created in part by his landbased lack of care. We conclude that § 1333(a)(2) of the Lands Act, when read against the background of legislative history outlined in Rodrigue and the increasing judicial and legislative dissatisfaction with strict locality as the sole test of jurisdiction, precludes us from treating Monk’s claim against C & K and Chapman as a suit in admiralty. Accordingly the Texas doctrine of contributory negligence bars recovery by Monk’s heirs from C & K and Chapman. Dearborn has not claimed the benefit of the Texas contributory negligence bar, and correctly so. Suits by landsmen injured aboard ship in navigable waters have traditionally been within maritime jurisdiction. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). Moreover, Dearborn’s situation is different from that of the platform defendants whose breaches of duty were platform-related, while Dearborn’s concurring breaches were admiralty-related. As between platform defendants and Monk, the only nexus with admiralty was Monk’s presence aboard the vessel. In this context it is consistent with the rationale of Rodrigue and the teachings of Executive Jet and Peytavin that the surrogate law of the platform controls the controversy. In the context of Monk versus Dearborn, however, the interest of admiralty intervenes because the risks to which Monk was exposed by Dearborn, and Dearborn’s breaches thereof, were admiralty-related, concerning the duty of the vessel to those aboard her. Under the former “locality” test for determining admiralty jurisdiction, if Monk were a dock worker who, on like facts and with like consequences, had left the dock and gone aboard the CARRYBACK tied up nearby, his claim would have been in admiralty. After Executive Jet, Peytavin and Kelly the result would be the same, since there would be involved both locality and the relationship to" }, { "docid": "8619292", "title": "", "text": "The court found that Monk’s inadequate supervision of platform operations contributed to his death to the extent of 25%. The District Court recognized that under Rodrigue Texas law applied to platform-based deaths and injuries, but reasoned that because Monk died at sea the claim for his death, as against all defendants, was within maritime jurisdiction. Accordingly it applied admiralty’s beneficent doctrine of comparative negligence to permit recovery by the Monk heirs against Dearborn, Chapman and C & K, reduced by 25%. Under Texas law contributory negligence is a bar to recovery in a negligence action. “The doctrine of comparative negligence, which apportions liability between the parties according to the relative degree of their negligence, does not exist in Texas, except by virtue of statute in actions between certain employers and their employees.” 40 Tex. Jur. 2d Negligence § 97, at 602-03 (1962) (footnotes omitted). Chapman and C & K — the two platform defendants held liable on the Monk claim — vigorously urge that as against them Texas law controlled so that Monk’s contributory negligence barred the claim for his death. For reasons discussed below we conclude that the land law of Texas, the surrogate law for the platform, does control as between these parties with the result that the Monk claim against C & K and Chapman is barred. The death claim for Monk, who perished about seventy-five feet downwind of the platform, presents a jurisdictional conflict between the Death on the High Seas Act and the Outer Continental Shelf Lands Act. DOHSA provides in pertinent part: “Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, . . . the personal representative . . . may maintain a suit for damages in admiralty . . . .”46 U.S.C. § 761. The Lands Act extends the political jurisdiction of the United States “to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures . . . erected thereon,” 43 U.S.C. § 1333(a)(1)," }, { "docid": "8619287", "title": "", "text": "of the CARRY-BACK. Negligence and unseaworthiness. Claims Love and Cassel: Crew members killed aboard the CARRYBACK. Captain Armstrong: Master, killed aboard the CARRYBACK. Monk: DEI supervisor, killed aboard the CARRYBACK. Property damage: Loss of CARRY-BACK. Liability C. & K, Chapman, DEI and Dearborn: Liable for deaths of Love and Cassel (no contributory fault by Love or Cassel). Liable for death of Captain Armstrong (25% contributory fault). C & K, DEI and Chapman: Liable for loss of CARRYBACK (25% contributory fault by vessel). C & K, Chapman and Dearborn: Liable for death of Monk (25% contributory fault). The District Court held C & K had breached a nondelegable duty imposed by regulations promulgated under the Outer Continental Shelf Lands Act 43 U.S.C. § 1331 et seq., to maintain a safe offshore platform. DEI was found negligent in its supervision of platform operations. DEI employees specifically mentioned were Monk, the platform supervisor at the time of explosion, and Chenier, Monk’s superior, neither of whom “adequately warn[ed] Chapman and its employees of the dangers incident to removal of the equalizer line.” Chapman was held negligent because of Rick Chapman’s failure to. warn his employees of the presence of oil in the tanks and for inadequate supervision of the welding by Scanlan, Chapman’s pusher. The District Court found that these breaches of duty by Chapman, C & K, and DEI combined with the faults of Dearborn to proximately cause the deaths, injuries, and property damage in issue. Dearborn was found to have breached its legal responsibilities in several respects. The District Court found that CARRYBACK’S master was negligent in mooring her in an unreasonably hazardous location. It found the vessel unseaworthy for being moored as,she was, for failure to comply with 46 U.S.C. § 404, which imposes certain manning and inspection requirements on vessels “carrying passengers for hire,” and for being manned by an incompetent crew. These acts of negligence and conditions of unseaworthiness, the District Court found, combined with the acts of the platform defendants to proximately cause the deaths of those aboard the CARRY-BACK and the loss of the vessel itself. Chapman" }, { "docid": "8619304", "title": "", "text": "the platform defendants is based on negligent performance of platform operations. Under the teaching of Rodrigue these factors exemplify a more significant connection with the adjacent state than with admiralty. Re Motor Ship Pacific Carrier, 489 F.2d 152 (CA5 1974), cert. denied, Union Camp Corp. v. Gypsum Carrier, Inc., 417 U.S. 931, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974), is not inconsistent with our conclusion. In that case the tort was the emission from a plant located on the bank of a navigable stream of fumes, smoke and gases which blew across the channel and engulfed a ship under way. The vessel, with visibility lost, collided with a bridge. Emphasizing substantial maritime connections, rejecting a strict locality test, and relying upon Executive Jet and our decisions in Peytavin and Kelly, we held that the ship’s claim against the plant was within admiralty jurisdiction. As in Kelly, where the cause of injury was gunfire from shore, the landbased origin of the wrong consummated on the sea did not avoid admiralty jurisdiction. Pacific Carrier would be more nearly comparable to the case before us if the claim asserted against the plant had been that of the plant superintendent, aboard the vessel as neither crewman nor as passenger in the usual sense but using the' vessel to perform plant-related duties at the time vision was obscured by smoke and fumes created in part by his landbased lack of care. We conclude that § 1333(a)(2) of the Lands Act, when read against the background of legislative history outlined in Rodrigue and the increasing judicial and legislative dissatisfaction with strict locality as the sole test of jurisdiction, precludes us from treating Monk’s claim against C & K and Chapman as a suit in admiralty. Accordingly the Texas doctrine of contributory negligence bars recovery by Monk’s heirs from C & K and Chapman. Dearborn has not claimed the benefit of the Texas contributory negligence bar, and correctly so. Suits by landsmen injured aboard ship in navigable waters have traditionally been within maritime jurisdiction. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d" }, { "docid": "21905330", "title": "", "text": "occurring “on” fixed platforms, and, indeed, most cases decided under the Rodrigue principle involve an accident which occurred, and an injury which was sustained, “on” the platform. In several cases, however, we have applied OCSLA and, consequently, state law, to incidents in which platform workers who were the victims of torts originating on these artificial islands were not actually injured or killed until they fell, jumped, or were pushed into the surrounding seas. In each of these cases, the injured party was a platform worker and the original impact occurred on the platform. We have applied OCSLA-dictated state law in only one case in which a platform worker was injured by a tort whose initial impact was not sustained on the platform. In In re Dearborn Marine Service, Inc., 499 F.2d 263 (5th Cir. 1974), cert. dismissed, 423 U.S. 886, 96 S.Ct. 163, 46 L.Ed.2d 118 (1975), a platform worker, Monk, was on a “standby” vessel tied up seventy-five feet from a platform when an explosion occurred on the platform. With the explosion, a “flaming ball of oil” rose above the platform. Carried by the wind, the ball of fire engulfed the standby vessel, killing all aboard. Monk’s heirs sought to maintain a suit against the platform defendants for negligence under the DOHSA and general maritime law. The district court sustained admiralty jurisdiction over these claims. We reversed, concluding that “§ 1333(a)(2) of the [OCSLA], when read against the background of legislative history outlined in Ro-drigue and the increasing judicial and legislative dissatisfaction with strict locality as the sole test of jurisdiction, precludes us from treating Monk’s claim against [the platform defendants] as a suit in admiralty.” 499 F.2d at 276. Texaco and Pool argue that Kolb’s claim against them is indistinguishable from Monk's claim against the platform defendants in Dearborn, in that in both cases, platform-based negligence had its first impact on the decedent on or over the high seas and not on the platform. Although the two situations are alike in that regard, there is a critical difference between Monk’s status as a “platform worker” and Kolb’s status" }, { "docid": "8619302", "title": "", "text": "He sued in admiralty for resulting whiplash and back injuries. The court rejected strict locality as the sole test of jurisdiction because of its failure “to provide any clear guidance,” id. at 1126, and focused instead on the connection of the claim to traditional maritime activities or interests. Since maritime connection was lacking in the relationship between the parties, in the nature of the alleged negligence (failure to keep an automobile under control and to maintain a proper lookout), and in the nature of injuries (whiplash), the court dismissed the suit. In Executive Jet plaintiff’s plane had suffered a power loss from ingesting seagulls into its engines on taking off from defendant’s airport and finally had settled into Lake Erie just off the end of the runway, where it sank and became a total loss. Plaintiff sued in admiralty for property damages, alleging thát defendant negligently failed to keep its runway free of seagulls or to warn of their presence, but the Court dismissed for lack of jurisdiction. [T]he mere fact that the alleged wrong “occurs” or is “located” on or over navigable waters — whatever that means in an aviation context — is not itself sufficient to turn an airplane negligence case into a “maritime tort.” It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary. Id. 409 U.S. at 268, 93 S.Ct. at 504, 34 L.Ed.2d at 467. The emphasis on maritime connection as a prerequisite to admiralty jurisdiction — typified by the Supreme Court’s opinion in Executive Jet and by Peytavin in this circuit — is an additional reason for holding DOHSA inapplicable to the Monk death claim. Monk was a platform worker. He was aboard the CARRYBACK for the purpose of performing duties directly related to platform operations, the physical cause of his death was the platform explosion, and his cause of action against" }, { "docid": "8619286", "title": "", "text": "K, the heirs of Monk, Cassel, Love, and Armstrong, and by several platform workers and heirs of platform workers. In Texas state court Monk’s estate sued C & K and Freeport Operators (Dear-born’s subsidiary) who removed the cause to the federal District Court in Galveston. Suits in the same District Court, Houston Division, were filed by C & K against DEI and Chapman for damages to its platform, and by the heirs of Armstrong against C & K, DEI, Chapman, and Freeport Operators. The limitation proceedings in the Galveston Division were subsequently consolidated with the Houston suits for trial in the Houston Division, and it is from judgment entered in these consolidated proceedings after a trial without a jury that this appeal is taken. The posture of the parties under the judgment (excluding awards of indemnity) can be summarized this way, insofar as pertinent to this appeal. “Platform Defendants” C & K:. Owner of the platform. Violated safety regulations. DEI: Operator of the platform. Violated safety regulations. Chapman: Labor supplier. Negligent. Other Defendant Dearborn: Owner of the CARRY-BACK. Negligence and unseaworthiness. Claims Love and Cassel: Crew members killed aboard the CARRYBACK. Captain Armstrong: Master, killed aboard the CARRYBACK. Monk: DEI supervisor, killed aboard the CARRYBACK. Property damage: Loss of CARRY-BACK. Liability C. & K, Chapman, DEI and Dearborn: Liable for deaths of Love and Cassel (no contributory fault by Love or Cassel). Liable for death of Captain Armstrong (25% contributory fault). C & K, DEI and Chapman: Liable for loss of CARRYBACK (25% contributory fault by vessel). C & K, Chapman and Dearborn: Liable for death of Monk (25% contributory fault). The District Court held C & K had breached a nondelegable duty imposed by regulations promulgated under the Outer Continental Shelf Lands Act 43 U.S.C. § 1331 et seq., to maintain a safe offshore platform. DEI was found negligent in its supervision of platform operations. DEI employees specifically mentioned were Monk, the platform supervisor at the time of explosion, and Chenier, Monk’s superior, neither of whom “adequately warn[ed] Chapman and its employees of the dangers incident to removal of" }, { "docid": "8619290", "title": "", "text": "the death claims against all defendants were properly in federal district court under either the Jones Act or DOHSA or fell within the Lands Act. There are two main issues — whether land law or admiralty law covers the claim of Monk against Dearborn, and whether manning and inspection requirements of federal statutes and regulations apply to the CARRYBACK. Determination of the second of these bears on the findings that Dearborn was negligent and the CARRYBACK unseaworthy, which in turn may affect, at least, limitation of liability, relative fault between the defendants, and the extent of Monk’s comparative fault. Untangling these skeins and setting out various alternatives would require a catalogue of instructions to the District Court on remand that would be neither useful nor practical. We therefore decide the issues presented as best we can, vacate the judgment of the District Court, and remand for further proceedings. 1. Consolidation. A threshold question is whether the District Court correctly consolidated Dearborn’s limitation petition, filed pursuant to 46 U.S.C. § 185, with the Armstrong death action for trial in Houston. District courts have broad discretion under Fed.R.Civ.P. 42(a) to consolidate causes pending in the same district. See generally 9 Wright & Miller, Federal Practice & Procedure § 2384, at 272 (1971). In this case there was no jurisdictional impediment to consolidation because both the Armstrong suit and the limitation proceeding independently invoked federal jurisdiction. Since the actions presented common issues of law and fact, consolidation saved the parties from wasteful relitigation in disparate forums, avoided duplication of judicial effort, and did not prejudice Dearborn’s right to prove entitlement to limitation. The District Court did not abuse its discretion in ordering consolidation. 2. The governing law and Monk’s contributory negligence. The District Court found Dearborn, Chapman, and C & K jointly and severally liable for the death of Monk, DEI’s supervisor. Monk was basically a platform worker, but he spent part of his time aboard the CARRYBACK, completing his work reports and using the ship’s short-wave radio to communicate with DEI’s shoreside office. He was on the CARRYBACK when the explosion occurred." }, { "docid": "8619288", "title": "", "text": "the equalizer line.” Chapman was held negligent because of Rick Chapman’s failure to. warn his employees of the presence of oil in the tanks and for inadequate supervision of the welding by Scanlan, Chapman’s pusher. The District Court found that these breaches of duty by Chapman, C & K, and DEI combined with the faults of Dearborn to proximately cause the deaths, injuries, and property damage in issue. Dearborn was found to have breached its legal responsibilities in several respects. The District Court found that CARRYBACK’S master was negligent in mooring her in an unreasonably hazardous location. It found the vessel unseaworthy for being moored as,she was, for failure to comply with 46 U.S.C. § 404, which imposes certain manning and inspection requirements on vessels “carrying passengers for hire,” and for being manned by an incompetent crew. These acts of negligence and conditions of unseaworthiness, the District Court found, combined with the acts of the platform defendants to proximately cause the deaths of those aboard the CARRY-BACK and the loss of the vessel itself. Chapman contests the District Court’s rulings on its negligence. Dearborn contests the rulings on its negligence and unseaworthiness. C & K and DEI do not contest findings of fault on their part but contest certain legal consequences thereof. Monk’s heirs sought to maintain their suit against Dearborn for negligence and unseaworthiness under the general maritime law and the Death on the High Seas Act, 46 U.S.C. §§ 761-768. Representatives of the deceased crew members added to these contentions a claim for negligence under the Jones Act, 46 U.S.C. § 688. All four estates alleged that DOHSA and the general maritime law provide a federal cause of action against the platform defendants — C & K, DEI, and Chapman —but, as we will explore later, there is a question whether these claims fall within § 1333 of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., which prescribes the applicable law for the subsoil of the outer Continental Shelf and for artificial islands permanently affixed thereto. For the present we need only observe that" }, { "docid": "8619307", "title": "", "text": "admiralty previously recognized in Kermarec. As Rodrigue points out, the platform is like a pier. Rodrigue did not, by making land law the surrogate law of the platform, give it greater application off the platform in an admiralty-related situation than the land law would have off the pier in like circumstances. The interests vindicated in Rodrigue were, first, the status of the platform worker as land-related, and, second, the interest of the state in the process of extracting minerals from the soil and its particular capacity to deal with that subject matter as against admiralty’s incapacity. Here there are also present matters which admiralty is particularly adapted to handle and land law is not. Admiralty’s jurisdiction over the Monk claim against Dearborn is not ousted. 3. Dearborn’s liability, a. Negligence. The District Court ruled that Dearborn breached a legal duty owing to Monk because its skipper, Armstrong, was negligent in mooring his ship with a seventy-five foot rope to the platform’s leeward side, which negligence was causally related to deaths of the crew and of Monk. The District Court found that “[t]he master knew or must, in law, be charged with knowing that the platform was a deteriorated oil storage platform and that welding was being done on the platform, for he carried the equipment for the welding operations to the platform on his boat,” and that “Mr. Armstrong, the master, knew or should have known of the hazardous proximity of his boat to potential fires and possible explosion by the fact that he had, at an earlier date, helped to put out a fire on this platform during these repair operations.” 340 F.Supp. at 1245. These rulings are adequately supported by the record and are affirmed. The maritime duty of the shipowner to Monk, that owing to a nonseaman “on board for purposes not inimical to . legitimate interests [of the shipowner],” is not one of furnishing a seaworthy hull and appliances without regard to fault, but one of “exercising reasonable care under the circumstances.” Kermarec v. Compagnie Generale Transatlantique, supra; The Admiral Peoples, 295 U.S. 649, 55 S.Ct." }, { "docid": "8619303", "title": "", "text": "“occurs” or is “located” on or over navigable waters — whatever that means in an aviation context — is not itself sufficient to turn an airplane negligence case into a “maritime tort.” It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary. Id. 409 U.S. at 268, 93 S.Ct. at 504, 34 L.Ed.2d at 467. The emphasis on maritime connection as a prerequisite to admiralty jurisdiction — typified by the Supreme Court’s opinion in Executive Jet and by Peytavin in this circuit — is an additional reason for holding DOHSA inapplicable to the Monk death claim. Monk was a platform worker. He was aboard the CARRYBACK for the purpose of performing duties directly related to platform operations, the physical cause of his death was the platform explosion, and his cause of action against the platform defendants is based on negligent performance of platform operations. Under the teaching of Rodrigue these factors exemplify a more significant connection with the adjacent state than with admiralty. Re Motor Ship Pacific Carrier, 489 F.2d 152 (CA5 1974), cert. denied, Union Camp Corp. v. Gypsum Carrier, Inc., 417 U.S. 931, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974), is not inconsistent with our conclusion. In that case the tort was the emission from a plant located on the bank of a navigable stream of fumes, smoke and gases which blew across the channel and engulfed a ship under way. The vessel, with visibility lost, collided with a bridge. Emphasizing substantial maritime connections, rejecting a strict locality test, and relying upon Executive Jet and our decisions in Peytavin and Kelly, we held that the ship’s claim against the plant was within admiralty jurisdiction. As in Kelly, where the cause of injury was gunfire from shore, the landbased origin of the wrong consummated on the sea did not avoid admiralty jurisdiction. Pacific Carrier would be more" } ]

[ { "docid": "14878315", "title": "", "text": "PER CURIAM. Michael Byron Abrahamson was convicted of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). At sentencing, the district court found that Abrahamson had a prior felony drug conviction and applied a statutory sentencing enhancement that doubled his mandatory minimum sentence from ten years to twenty years. See 21 U.S.C. § 841(b)(1). Based oh the enhancement, the district court sentenced Abrahamson to twenty years’ imprisonment. Abraham-son appealed his conviction and sentence, arguing, inter alia, that the district court’s application of the sentencing enhancement violated the Sixth Amendment because the fact underlying the enhancement — the existence of a prior felony drug conviction— was found by the district court rather than a jury. We affirmed. See United States v. Abrahamson, 685 F.3d 777 (8th Cir.2012). On June 24, 2013, the United States Supreme Court granted certiorari, vacated the judgment, and remanded the case for further consideration in light of the Court’s decision in Alleyne v. United States, 570 U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). See Abrahamson v. United States, 570 U.S. -, 133 S.Ct. 2853, — L.Ed.2d-(2013). In Alleyne, the Court held that a fact that increases a defendant’s mandatory minimum sentence is an element of the crime that must be submitted to a jury. See 133 S.Ct. at 2155. However, the Court in Alleyne left intact the rule that enhancements based on the fact of a prior conviction are an exception to the general rule that facts increasing the prescribed range of penalties must be presented to a jury. See id. at 2160 n. 1 (explaining that because the parties did not address the recidivism enhancement exception recognized in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court would not revisit the issue). Because the challenged enhancement of Abrahamson’s sentence was based solely on his prior felony drug conviction, it continues to fall under the recidivism exception to the jury presentation requirement that the Court recognized in Almendarez-Torres and left unchanged in Alleyne. See United States v. Torres-Alvarado, 416 F.3d 808, 810 (8th Cir.2005)" } ]

[ { "docid": "23684561", "title": "", "text": "be found by the jury.” Id. at 2162. As this discussion indicates, Al-leyne did not address the specific question at issue in this case, which is whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions. That question continues to be governed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998), where the Court determined that the fact of a prior conviction is not an “element” that must be found by a jury. Indeed, the Alleyne Court specifically recognized that, under Almendarez-Torres, prior convictions are excepted from the general rule that a jury must find any fact that will increase the penalty for an offense. Al-leyne, 133 S.Ct. at 2160 n. 1. The Alleyne Court declined to “revisit [Almendarez-Torres] for purposes of our decision today” because “the parties d[id] not contest that decision’s vitality.” Id.; see also Descamps v. United States, - U.S. —, 133 S.Ct. 2276, 2288, 186 L.Ed.2d 438 (2013) (observing that an increase in the maximum statutory sentence based on judicial factfinding that “went beyond merely identifying a prior conviction” would “raise serious Sixth Amendment concerns”). We recognize that there is some tension between Almendarez-Torres on the one hand and Alleyne and Apprendi on the other. However, we are not free to do what the Supreme Court declined to do in Alleyne, which is overrule Almendarez-Torres. As we have said before, we are “bound to follow Almendarez-Torres unless and until the Supreme Court itself overrules that decision.” . United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir.2001). Applying that rule to this case, Harris’ Alleyne challenge to his § 3559(c) mandatory life sentence fails. The district court did not commit error, much less plain error, in imposing a mandatory life sentence under § 3559(c) without any jury findings about the existence of Harris’ pri- or convictions. B. Harris’ other contention is that the combination of 18 U.S.C. § 3559(c) and 21 U.S.C. § 851, which resulted in his mandatory life sentence, violates “the Nondele-gation Doctrine, Separation of Powers principles," }, { "docid": "19347589", "title": "", "text": "in evidence, and even if [they were], that doesn’t make [them] true or not true.” We must presume that a jury follows its instructions. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). In short, the prosecutor’s statements are not a basis for reversal. IV. The Sentencing Enhancements Davis raises two constitutional objections to the computation of his sentence. He contends that the enhancement for the second or subsequent offenses and for brandishing a weapon were imposed in violation of his Sixth Amendment right to trial by jury; the underlying facts, in the one case “subsequence,” and in the second case “brandishing,” were not found by a jury beyond a reasonable doubt. Upon review, we conclude that his claim warrants no relief as to the second or subsequent enhancement, but is meritorious on the brandishing issue. This sort of Sixth Amendment claim is governed by the Supreme Court decision in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In Alleyne, the Supreme Court overruled its prior opinion in Harris v. United States, 536 U.S. 545, 551-56, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and held that the Sixth Amendment requires any fact which increases a mandatory minimum sentence to be submitted to the jury. Alleyne, 133 S.Ct. at 2162-63. However, the Alleyne decision does not warrant relief on the “second or subsequent” mandate for consecutive sentences. Alleyne relied heavily on Apprendi v. New Jersey, in which the Court specifically excluded the fact of a prior conviction from its general holding requiring a jury to pass on those issues increasing the penalty beyond a statutory maximum. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the Court declined to reconsider its holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that the fact of a prior conviction need not be treated as an element of an offense. Alleyne, 133 S.Ct. at 2160 n. 1. It follows, then, that we may not revisit this holding either. The jury did not make" }, { "docid": "17212329", "title": "", "text": "prior convictions by information). The district court found this argument foreclosed by Harris v. United States, 536 U.S. 545, 568-69, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that facts triggering a mandatory minimum could be found by the judge rather than the jury. That case too has been overruled, and under Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), nearly all facts supporting a mandatory minimum are now treated as elements of an offense that must be charged in an indictment and found by the jury beyond a reasonable doubt. Alleyne would support the defendants’ position but for a footnote in the opinion identifying “a narrow exception ... for the fact of a prior conviction,” which need not be proved to the jury. Id. at 2160 n. 1. The exception comes from Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which has not been overruled. The defendants argue that recent cases have undermined the exception, but even if Al-mendarez-Torres seems inconsistent with the Supreme Court’s recent sentencing jurisprudence, we are bound by its holding. See United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006) (“[W]e are not authorized to disregard the Court’s decisions even when it is apparent that they are doomed.”); United States v. Harris, 741 F.3d 1245, 1250 (11th Cir.2014) (“[W]e are not free to do what the Supreme Court declined to do in Alleyne, which is overrule Almendarez-Torres.”). Therefore, the enhanced mandatory minimum was properly applied even though the fact of the prior convictions was never submitted to the jury. Long, Coprieh, and Williams also filed a supplemental brief arguing that the drug quantity should have been decided by the jury rather than the judge. That’s true: After Alleyne drug quantities can only trigger a mandatory minimum if found by a jury beyond a reasonable doubt. See United States v. Claybrooks, 729 F.3d 699, 708 (7th Cir.2013). But the defendants never properly raised this objection at trial, so we must review the challenge under the plain-error standard, see United States v." }, { "docid": "22157551", "title": "", "text": "U.S. Const. Amend. V, and he did not specifically admit that his prior convictions were serious drug offenses, U.S. Const. Amend. VI. Smith argues that the Supreme Court ruled in Alleyne v. United States that all facts that trigger mandatory minimum sentences—including the fact of a prior conviction—must be alleged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. — U.S. —, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). Smith’s arguments fail. “[N]either the Fifth Amendment nor the Sixth Amendment prevents] the district court from finding the fact of [Smithj’s prior convictions, or using them to designate him a[n Armed Career Criminal'].” United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir.2006). Although it is ordinarily true that all'elements of a crime must be alleged by indictment and either proved beyond a reasonable doubt or admitted by a defendant, there is an exception for prior convictions. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 1232-33, 140 L.Ed.2d 350 (1998). The Constitution does not require that “[t]he government ... allege in its indictment and ... prove beyond a reasonable doubt that [Smith] had prior convictions for a district court to use those convictions for purposes of enhancing a sentence.” Gibson, 434 F.3d at 1246 (internal quotation marks and citation omitted). AUeyne did not overrule Almendarez-Torres, and the Fifth and Sixth Amendments do not limit the use of Smith’s prior convictions. United States v. Harris, 741 F.3d 1245, 1250 (11th Cir.2014). We acknowledged in Harris that there is “some tension” between Almendarez-Torres and AUeyne, but “we are bound to follow Al-mendarez-Torres unless and until the Supreme Court itself overrules that decision.” Id. (internal quotation marks and citation omitted). The district court correctly used Smith’s prior convictions to designate him an “armed career criminal.” Id. B. Smith’s Prior Convictions Are “Serious Drug Offenses, ” and Nunez’s Pri- or Convictions Are “Controlled Substance Offenses. ” As an initial matter, the parties disagree about whether an argument raised for the first time in a motion to reconsider a sentence is preserved for our review. The government argues" }, { "docid": "992653", "title": "", "text": "power to place on a defendant the burden of establishing an affirmative defense that is not an essential element of the crime.” United States v. Davis, 260 F.3d 965, 970 (8th Cir. 2001). Appellant also claims that his Tennessee conviction in 2001 for aggravated robbery does not qualify as a second requisite predicate offense because this conviction was unconstitutional as he cannot recall meeting with an attorney before his hearing on the state’s motion to transfer him from juvenile to adult criminal court. His argument fails because “[t]he Constitution only requires federal [sentencing] courts to permit a collateral attack on an earlier state conviction ... [if] the defendant asserts the state court violated [his] right to appointed counsel.” United States v. Jones, 28 F.3d 69, 70 (8th Cir. 1994). To establish this claim a defendant must allege a “complete lack of representation by counsel during earlier state proceedings.” Id. Because House’s argument is an ineffective assistance of counsel claim, his 2001 Tennessee conviction cannot be collaterally attacked here. See United States v. Walker, 202 F.3d 1066, 1067 (8th Cir. 2000). Since House had at least two prior violent felony convictions, the district court properly sentenced him to life imprisonment under § 3559. House argues in addition that Alleyne v. United States, - U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and the Sixth Amendment require that a jury rather than a judge make any finding that he had been previously convicted of at least two serious violent felonies since such a fact could increase the maximum penalty to which he was exposed. In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court explained however that recidivism is not an element of an offense that must be submitted to a jury, and the Alleyne Court, 133 S.Ct. at 2160 n. 1, did not revisit that conclusion. United States v. Roberts, 763 F.3d 947, 949 (8th Cir. 2014). We conclude that the district court properly sentenced House to life imprisonment under 18 U.S.C. § 3559(c). V. House also appeals some evi-dentiary rulings." }, { "docid": "4569213", "title": "", "text": "excited utterances under Rule 803(2). C. Enhanced Sentencing Penalty Proper Boyce also argues that his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), was improper because a jury did not find the fact of his prior convictions beyond a reasonable doubt. As support, Boyce points to the Supreme Court’s decision earlier this year holding that any fact that increases the mandatory minimum sentence for a crime is an element and must be submitted to the jury and found beyond a reasonable doubt. Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013). Alleyne, however, did not change the rule announced in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that the fact of a prior conviction need not be alleged in the indictment or proven to a jury beyond a reasonable doubt. The Court explicitly stated in Alleyne that it was not revisiting its Almendarez-Torres decision because the parties had not raised it. 133 S.Ct. at 2160 n. 1. Until the Supreme Court tells us otherwise, we will continue to apply Almendarez-Torres, and so we decline to set aside Boyce’s sentence on this ground. III. CONCLUSION The judgment of the district court is Affirmed. . The argument that responding to questions precludes the application of a spontaneity exception could also be made with regard to the excited utterance exception, an exception we will turn to next. We note that in the excited utterance context, we have stated that the fact that a declarant \"was answering questions, rather than giving a spontaneous narrative, does not indicate that he was not excited when he provided the answers.” Joy, 192 F.3d at 767; see also United States v. Martin, 59 F.3d 767, 770 (8th Cir.1995). POSNER, Circuit Judge, concurring. I agree that the district court should be affirmed — and indeed I disagree with nothing in the court’s opinion. I write separately only to express concern with Federal Rules of Evidence 803(1) and (2), which figure in this case. That concern is expressed in a paragraph of the majority" }, { "docid": "17212328", "title": "", "text": "for conduct occurring before the FSA was passed. See United States v. Fisher, 635 F.3d 336, 340 (7th Cir.2011). The defendants distributed cocaine before the FSA was enacted, so in accordance with Fisher, the district court denied their request for application of the higher, post-FSA thresholds. But the Supreme Court has since overturned Fisher and held that the FSA applies to any defendant sentenced after the Act was enacted, regardless of when the underlying conduct occurred. See Dorsey v. United States, — U.S. —, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012). Since all defendants were sentenced after the FSA was enacted, Dorsey requires us to vacate and remand for re-sentencing unless the failure to apply the FSA was harmless. Long, Coprich, Williams, and Hicks also argued below that their prior drug-felony convictions should not increase the mandatory minimum because the government never proved the fact of those convictions to the jury; instead the government demonstrated the prior convictions by filing an information with the judge. See 21 U.S.C. § 851 (describing procedure for proving prior convictions by information). The district court found this argument foreclosed by Harris v. United States, 536 U.S. 545, 568-69, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that facts triggering a mandatory minimum could be found by the judge rather than the jury. That case too has been overruled, and under Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), nearly all facts supporting a mandatory minimum are now treated as elements of an offense that must be charged in an indictment and found by the jury beyond a reasonable doubt. Alleyne would support the defendants’ position but for a footnote in the opinion identifying “a narrow exception ... for the fact of a prior conviction,” which need not be proved to the jury. Id. at 2160 n. 1. The exception comes from Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which has not been overruled. The defendants argue that recent cases have undermined the exception, but even if Al-mendarez-Torres seems" }, { "docid": "7461401", "title": "", "text": "the defendant can show by clear and convincing evidence that no firearm or other dangerous weapon was used or threatened to be used in committing a prior robbery. 18 U.S.C. § 3559(c)(3)(A). Prior felonies need not be identified in the indictment, but are to be filed in an information, as they were here. United States v. Davis, 260 F.3d 965, 968-70 (8th Cir.2001), is controlling. Davis held that under Apprendi and Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), it is “proper for the district court to make the finding according to a preponderance of the evidence that appellant had two prior convictions for serious violent felonies.” Id. at 969. We therefore reject Williams’s argu ment that the government must prove beyond a reasonable doubt that he had been convicted of prior serious felonies. With regard to his second argument regarding the burden-shifting provision in § 3559, Davis holds that under Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), “Congress has the power to place on a defendant the burden of establishing an affirmative defense that is not an essential element of the crime.” Davis, 260 F.3d at 970 (citations omitted). Bound by Davis, we affirm on this point. IV. Conclusion The district court erred in giving a jury instruction that did not require the jury to find an “actual effect” on commerce. However, this was harmless error because the evidence demonstrated an actual effect on commerce, and this evidence was unre-futed. On all the other issues Williams raises, the district court did not err. Therefore, we affirm Williams’s conviction. . The Honorable Charles R. Wolle, United States District Judge for the Northern District of Iowa. . The Hobbs Act provides that \"whoever in any way or degree obstructs, delays, or affects commerce ... by robbery or extortion or attempts or conspires to do so ... shall be fined under this title or imprisoned not more than 20 years, or both.” 18 U.S.C. § 1951(a). . 18 U.S.C. § 3559(c)(l)(A)(i) mandates a term of life imprisonment where \"the" }, { "docid": "7461400", "title": "", "text": "cab for profit. For these reasons, Williams’s cab robbery necessarily had an effect on interstate commerce. We therefore affirm the district court on this matter. D. The Application of the Three-Strikes Enhancement Williams’s final argument has two parts. First, Williams argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the government must allege the prior felonies in the indictment and prove to a jury beyond a reasonable doubt that he had prior convictions for serious felonies before the three strikes enhancement can be applied. Second, he argues that the application of the three-strikes enhancement at sentencing further denied him due process by placing the burden on him to prove by clear and convincing evidence that the prior convictions were not serious violent felonies. 18 U.S.C. § 3559(c) requires that a life sentence be imposed upon a defendant who is convicted of a serious crime of violence and who has two or more serious violent felony convictions. There is an affirmative defense to application of the statute if the defendant can show by clear and convincing evidence that no firearm or other dangerous weapon was used or threatened to be used in committing a prior robbery. 18 U.S.C. § 3559(c)(3)(A). Prior felonies need not be identified in the indictment, but are to be filed in an information, as they were here. United States v. Davis, 260 F.3d 965, 968-70 (8th Cir.2001), is controlling. Davis held that under Apprendi and Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), it is “proper for the district court to make the finding according to a preponderance of the evidence that appellant had two prior convictions for serious violent felonies.” Id. at 969. We therefore reject Williams’s argu ment that the government must prove beyond a reasonable doubt that he had been convicted of prior serious felonies. With regard to his second argument regarding the burden-shifting provision in § 3559, Davis holds that under Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), “Congress has the power" }, { "docid": "23684560", "title": "", "text": "Harris, was charged with a Hobbs Act robbery under 18 U.S.C. § 1951(a) and with using or carrying a firearm to commit a crime of violence under 18 U.S.C. § 924(c)(1)(A). Alleyne, 133 S.Ct. at 2155. Section 924(c)(1)(A) provides for a minimum sentence of 5 years imprisonment for anyone who “uses or carries a firearm” in relation to a “crime of violence” and increases that mandatory minimum sentence to 7 years “if the firearm is brandished.” The jury convicted Alleyne but indicated on the jury form only that he had “[ujsed or carried a firearm during and in relation to a crime of violence.” Id. at 2156. The district court went further, finding that Alleyne had also brandished the firearm. The court believed, as it had every right to do under Harris, that it could make that additional finding without violating the Sixth Amendment. Id. But the Supreme Court, which had every right to overrule Harris, did so and held that the “fact of brandishing” constituted “an element of a separate, aggravated offense that must be found by the jury.” Id. at 2162. As this discussion indicates, Al-leyne did not address the specific question at issue in this case, which is whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions. That question continues to be governed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998), where the Court determined that the fact of a prior conviction is not an “element” that must be found by a jury. Indeed, the Alleyne Court specifically recognized that, under Almendarez-Torres, prior convictions are excepted from the general rule that a jury must find any fact that will increase the penalty for an offense. Al-leyne, 133 S.Ct. at 2160 n. 1. The Alleyne Court declined to “revisit [Almendarez-Torres] for purposes of our decision today” because “the parties d[id] not contest that decision’s vitality.” Id.; see also Descamps v. United States, - U.S. —, 133 S.Ct. 2276, 2288, 186 L.Ed.2d 438 (2013) (observing that an increase in the" }, { "docid": "897624", "title": "", "text": "a jury trial. Second, he argues that the district court erred in applying the sentencing enhancement because the government failed to prove his identity in the three prior convictions that were the basis for the enhancement. Rodriguez’s first argument lacks merit. Relying on Alleyne v. United States, Rodriguez argues that the sentence enhancement scheme under '§ 851, which increases an individual’s mandatory minimum sentence, violates the Sixth Amendment because “facts that increase mandatory minimum sentences must be submitted to the jury.” — U.S. -, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013). The Supreme Court in Almendarez-Torres v. United States held that the fact of a prior conviction used to enhance a sentence is a sentencing factor and not an element of the offense that must be decided by a jury. 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We have “repeatedly held ... that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.” United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011); see also United States v. Vallejos, 742 F.3d 902, 906 (9th Cir. 2014). We therefore conclude that the district court’s application of § 851 to enhance Rodriguez’s sentence did not violate his Sixth Amendment rights. Rodriguez’s second argument requires fuller discussion. A grand jury indicted Rodriguez for violating 21 U.S.C. § 841(a)(1). Section 841 allows the government to seek increased penalties if the individual commits the violation after a prior felony drug conviction has become final. 21 U.S.C. § 841(b)(1)(A)(viii). Pursuant to the procedures set forth in § 851, the government filed an information seeking enhanced penalties to increase Rodriguez’s potential mandatory minimum from 10 years to 20 years. § 851(a). Rodriguez filed a written response challenging the prior convictions on the grounds that (1) the statutory scheme under 21 U.S.C. § 851 is unconstitutional, and (2) two of the three prior convictions were not controlled-substance offenses that could serve as a basis for the enhancement — an issue he does not raise on appeal. At a hearing before sentencing, the government presented certified copies of three prior convictions" }, { "docid": "12529086", "title": "", "text": "and has three previous convictions for violent felonies or serious drug offenses. In Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 1231, 140 L.Ed.2d 350 (1998), the Supreme Court held that prior convictions that increase the statutory maximum sentence for a particular violation are not elements of an offense, and therefore a district court may determine if there had been such convictions when sentencing a defendant on a new conviction by using a preponderance-of-the-evidence standard. Later, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63. The Court in Alleyne extended the Apprendi rule to proof of facts that increase a mandatory minimum sentence, requiring such facts to be submitted to a jury and proven beyond a reasonable doubt; however, the Court did not extend the rule to proof of prior convictions, specifically articulating that the issue was not before the Court. Alleyne, 133 S.Ct. at 2160 n. 1. We since have recognized that Alleyne did “nothing to restrict the established exception under Almendarez-Torres that allows judges to consider prior convictions” for purposes of enhanced penalties. United States v. Blair, 734 F.3d 218, 227-28 (3d Cir.2013). Ultimately, Alleyne’s rule does not apply here to the recidivist enhancement of Section 924(e). Accordingly, we reject Burnett’s argument to the contrary. F. Burnett’s Within-Guideline Sentence Does Not Violate the Eighth Amendment. Finally, Burnett argues that his within-guideline-range sentence of 288 months imprisonment amounts to cruel and unusual punishment in violation of the Eighth Amendment. Because he did not make his Eighth Amendment challenge in the District Court, we review the argument on a plain error basis. Miknevich, 638 F.3d at 185. We determine that Burnett’s sentence is proportional to his crimes of conviction and does not constitute cruel and unusual punishment. The Supreme Court has explained that the “Eighth" }, { "docid": "12529085", "title": "", "text": "committed the gunpoint robbery. The evidence was more than sufficient; it was overwhelming. Thus, the evidence supported Burnett’s conviction on all counts. E. Burnett is An Armed Career Criminal Under 18 U.S.C. § 924(e). Burnett claims that the District Court erred when it determined that he was an armed career criminal under 18 U.S.C. § 924(e). He argues that the Court imposed his sentence in violation of the law that the Supreme Court announced in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because his predicate criminal convictions were not set forth as part of the allegations in his indictment and the question of whether he had been convicted of the offenses was not submitted to the jury. We hold that the Court properly concluded that Burnett was an armed career criminal and lawfully applied the mandatory minimum penalty required by Section 924(e). Section 924(e) mandates the imposition of a mandatory minimum period of incarceration of 15 years where a defendant is convicted of violating 18 U.S.C. § 922(g) and has three previous convictions for violent felonies or serious drug offenses. In Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 1231, 140 L.Ed.2d 350 (1998), the Supreme Court held that prior convictions that increase the statutory maximum sentence for a particular violation are not elements of an offense, and therefore a district court may determine if there had been such convictions when sentencing a defendant on a new conviction by using a preponderance-of-the-evidence standard. Later, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63. The Court in Alleyne extended the Apprendi rule to proof of facts that increase a mandatory minimum sentence, requiring such facts to be submitted to a jury and proven beyond a reasonable doubt; however, the" }, { "docid": "20511239", "title": "", "text": "the statement merely asserted that Hunter’s “only real defense” to the physical drug evidence was to question its integrity, not that he only had one “real defense” to all charges. In any event, a prosecutor may comment on the strength or credibility of the defense case. See United States v. Frokjer, 415 F.3d 865, 874 (8th Cir.2005); United States v. Jaswal, 47 F.3d 539, 544 (2d Cir.1995). The district court did not abuse its broad discretion to control closing arguments when it overruled Hunter’s unfocused objection. III. Hunter argues that, in imposing three life sentences, the district court violated his Sixth Amendment right to trial by jury as construed in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), which extended the Court’s prior decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to include facts that increase a mandatory minimum sentence established by statute. Hunter argues that Alleyne invalidated two aspects of his sentence. First, he challenges the determination that he is a career offender based on two qualifying prior felony convictions; that determination increased his advisory guidelines range to life in prison for the drug conspiracy and possession with intent to distribute offenses. See U.S.S.G. § 4Bl.l(c)(2). Second, he challenges the mandatory life sentence imposed because his second felon-in-possession offense involved a machine gun. See 18 U.S.C. § 924(e)(l)(C)(ii). This contention is foreclosed by our prior decisions. First, in United States v. Alvarez, 320 F.3d 765, 767 (8th Cir.2002), we held that the Supreme Court in Apprendi did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and therefore district courts may continue to impose career offender enhancements without having a jury determine the fact of prior convictions. Second, in United States v. Abrahamson, we upheld a postAlleyne challenge to an enhanced mandatory minimum statutory sentence, concluding that “Alleyne left intact the rule that enhancements based on the fact of a prior conviction are an exception to the general rule that facts increasing the prescribed range of penalties" }, { "docid": "23630915", "title": "", "text": "2013) (assuming without deciding that Alleyne error affected the defendant’s substantial rights, but finding harmless error at Olano’s fourth step); United States v. Baylor, — Fed.Appx. -, -, 2013 WL 3943145, *12-13 (4th Cir. Aug. 1, 2013) (unpublished per curiam) (finding harmless error where record would have supported a jury finding of brandishing). But cf. United States v. Lara-Ruiz, 721 F.3d 554, 558-60 (8th Cir.2013) (reversing and remanding for resentencing, without discussing harmless error, because Alleyne error substantially affected the defendant’s Sixth Amendment rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings); United States v. Lake, 530 Fed.Appx. 831, 831-32, 2013 WL 4017293, *1 (10th Cir. Aug. 8, 2013) (same). Finally, the defendant challenges for the first time on appeal the consecutive 25-year sentences imposed on counts nine and twelve for the § 924(c) convictions relating to the Walker and Johnson incidents. Arguing that Alleyne’s reasoning calls into doubt the continued vitality of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the defendant contends that the jury had to find that these two convictions qualified as “second or subsequent” convictions under § 924(c)(l)(C)(i) before the court could impose consecutive 25-year sentences on each count. In Almendarez-Torres, 523 U.S. at 228-29, 247-48, 118 S.Ct. 1219, the Supreme Court held that the Sixth Amendment does not require the government to set forth in the indictment and prove beyond a reasonable doubt the fact of a prior conviction. Although Almendarez-Torres may stand on shifting sands, the case presently remains good law and we must follow it until the Supreme Court expressly overrules it. See Alleyne, 133 S.Ct. at 2160 n. 1; United States v. Anderson, 695 F.3d 390, 398 (6th Cir.2012); United States v. Wynn, 531 Fed.Appx. 596, 597, 2013 WL 3941316, *1 (6th Cir. July 31, 2013) (per curiam). This challenge is without merit. III. CONCLUSION We recognize that the defendant’s trial and sentencing were not without error. Having carefully examined the record, however, we are satisfied that the defendant received a fundamentally fair trial. Accordingly, we AFFIRM the defendant’s convictions and" }, { "docid": "19061844", "title": "", "text": "charging document is not sufficiently limited, it is hard to see what would be. Accordingly, the district court properly counted the Kansas burglary conviction against Ridens for ACCA purposes. B. Sixth Amendment Challenge Ridens also claims the Sixth Amendment precluded the district court from resting the mandatory minimum on the judicially found fact of his past convictions. He relies on Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which extended the reasoning of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the mandatory-minimum context in holding that “[a]ny fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155 (internal quotation marks omitted). Because mandatory mínimums “increase the penalty for a crime,” id., Ridens argues a jury had to find the fact of his prior convictions. But Supreme Court precedent bars this argument. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court held that the fact of a prior conviction need not be submitted to a jury and proved beyond a reasonable doubt to serve as the basis for enhancing a defendant’s sentence. See id. at 226-27, 247. Almendarez-Torres survived Apprendi, see Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348, and Alleyne explicitly declined to revisit the question, see Alleyne, 133 S.Ct. at 2160 n. 1. Accordingly, Ridens’s Sixth Amendment challenge fails. III. Conclusion For the foregoing reasons, we AFFIRM Ridens’s sentence. . Ridens’s recommended Sentencing Guidelines range was 188 to 235 months, which was premised on his status as an armed career criminal under 18 U.S.C. § 924(e). See USSG § 4B1.4; R„ Vol. Ill at 14. Ridens ultimately received a 188-month sentence, and only argues here that the court wrongly concluded the burglary was a violent felony supporting an ACCA enhancement. . Thus, Ridens’s observation that facts in some judicial documents \"may be downright wrong,” Descamps, 133 S.Ct. at 2289, is off point. The Court was only" }, { "docid": "992654", "title": "", "text": "1066, 1067 (8th Cir. 2000). Since House had at least two prior violent felony convictions, the district court properly sentenced him to life imprisonment under § 3559. House argues in addition that Alleyne v. United States, - U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and the Sixth Amendment require that a jury rather than a judge make any finding that he had been previously convicted of at least two serious violent felonies since such a fact could increase the maximum penalty to which he was exposed. In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court explained however that recidivism is not an element of an offense that must be submitted to a jury, and the Alleyne Court, 133 S.Ct. at 2160 n. 1, did not revisit that conclusion. United States v. Roberts, 763 F.3d 947, 949 (8th Cir. 2014). We conclude that the district court properly sentenced House to life imprisonment under 18 U.S.C. § 3559(c). V. House also appeals some evi-dentiary rulings. He argues that the district court violated his constitutional rights by denying his motion to suppress Stitt’s trial testimony. When reviewing the denial of a motion to suppress, we review factual findings for clear error and legal conclusions de novo. United States v. Smith, 720 F.3d 1017, 1019 (8th Cir. 2013). After trial, “we examine the entire record, not merely the evidence adduced at the suppression hearing.” United States v. Henderson, 613 F.3d 1177, 1181 (8th Cir. 2010) (internal quotation marks omitted). House contends that Stitt’s trial testimony should have been suppressed because it was a result of his involuntary confession. Although House does not have standing to vindicate Stitt’s right against self-incrimination, he has standing to raise a Fifth Amendment claim to protect his own right to a fair trial. See United States v. Dowell, 430 F.3d 1100, 1107 (10th Cir. 2005); United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999). Where a defendant seeks to exclude witness testimony because it is a result of a coerced confession, he has the burden" }, { "docid": "17607280", "title": "", "text": "another ....” 18 U.S.C. § 924(e)(1) (emphasis added). Blair argues that, because he did not admit that the robberies occurred on different occasions when he pled guilty to the charges, the enhanced sentence was improper under Supreme Court case law and the Fifth and Sixth Amendments of the United States Constitution. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that, under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Nevertheless, as is evident from the language of that holding, Apprendi did not change the pre-existing rule from Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that a judge, rather than a jury, may determine “the fact of a prior conviction.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Recently, in Alleyne v. United States, the Supreme Court extended Apprendi and held that any facts that increase a mandatory minimum sentence must be submitted to a jury and proved beyond a reasonable doubt. — U.S. -, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013) (overruling Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that Apprendi did not apply to facts that increase a mandatory minimum sentence). But the Court expressly declined to alter the Almendarez-Torres rule. Id. at 2160 n. 1. It observed that, “[b]ecause the parties do not contest that decision’s vitality, we do not revisit it for purposes of our decision today.” Id. Almendarez-Torres therefore remains “a narrow exception to [Apprendi'’s ] general rule for the fact of a prior conviction.” Id. Blair tries to distance himself from the continuing control of Almendarez-Torres, but he cannot. Although he does not contend that Alleyne or Descamps overrules the Almendarez-Torres exception to Ap-prendi, he urges" }, { "docid": "22157550", "title": "", "text": "ground that his prior convictions were not “controlled substance offense[s],” id. § 4B1.2(b). The district court denied his motion. II. STANDARD OF REVIEW “We review [de novo] constitutional sentencing issues.... ” United States v. Steed, 548 F.3d 961, 978 (11th Cir.2008). III. DISCUSSION The parties present two issues. First, Smith argues that the government violated his rights under the Fifth and Sixth Amendments because his prior convictions were not alleged in his indictment or specifically admitted by him. Second, Smith and Nunez argue that their prior convictions for Florida drug crimes do not qualify as “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A)(ii), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b). We address each argument in turn. A. The District Court Correctly Relied on Smith’s Prior Convictions. Smith argues that the application of the mandatory minimum sentence, 18 U.S.C. § 924(e), violated his Fifth and Sixth Amendment rights. Smith argues that his prior convictions cannot be used to in crease his maximum possible sentence or mandatory minimum sentence because his prior convictions were not alleged by indictment, U.S. Const. Amend. V, and he did not specifically admit that his prior convictions were serious drug offenses, U.S. Const. Amend. VI. Smith argues that the Supreme Court ruled in Alleyne v. United States that all facts that trigger mandatory minimum sentences—including the fact of a prior conviction—must be alleged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. — U.S. —, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). Smith’s arguments fail. “[N]either the Fifth Amendment nor the Sixth Amendment prevents] the district court from finding the fact of [Smithj’s prior convictions, or using them to designate him a[n Armed Career Criminal'].” United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir.2006). Although it is ordinarily true that all'elements of a crime must be alleged by indictment and either proved beyond a reasonable doubt or admitted by a defendant, there is an exception for prior convictions. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 1232-33, 140 L.Ed.2d 350 (1998). The Constitution does not require that “[t]he government" }, { "docid": "19347590", "title": "", "text": "prior opinion in Harris v. United States, 536 U.S. 545, 551-56, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and held that the Sixth Amendment requires any fact which increases a mandatory minimum sentence to be submitted to the jury. Alleyne, 133 S.Ct. at 2162-63. However, the Alleyne decision does not warrant relief on the “second or subsequent” mandate for consecutive sentences. Alleyne relied heavily on Apprendi v. New Jersey, in which the Court specifically excluded the fact of a prior conviction from its general holding requiring a jury to pass on those issues increasing the penalty beyond a statutory maximum. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the Court declined to reconsider its holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that the fact of a prior conviction need not be treated as an element of an offense. Alleyne, 133 S.Ct. at 2160 n. 1. It follows, then, that we may not revisit this holding either. The jury did not make a specific finding that the convictions for Counts 5, 7, 9, 11, 14, and 17 were second or subsequent convictions under 18 U.S.C. § 924(c). However, there is no Alleyne violation where the judicial finding is the fact of a prior conviction, a finding the jury need not make. In any event, the superseding indictment charged Davis separately as to each of the seven robberies that occurred on separate days. By virtue of logic, each of Counts 5, 7, 9, 11, 14, and 17 was second or subsequent when the jury found that they were committed as set forth in the superseding indictment. We can offer no relief based on Davis’s contention that a concurrently found conviction should be treated differently for Sixth Amendment purposes ftom a conviction which predates the indictment in the current case. He cites Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), but Shepard does not speak to the issue before us. It discusses only the types of documents a sentencing court can consider." } ]

[ { "docid": "19963172", "title": "", "text": "and realleges the allegations of Paragraphs 1 through 106 and 124 through 130 as if set forth herein. Contract Modification P00011 must be rescinded and the MCM-1 contract restored to a normal CPIF contract without an artificial cost cap because the modification was procured by duress. Defendant contends that the CO had no power to consider the duress claim which seeks identical relief to the claim of mutual mistake currently before the court. Defendant also argues that the amendment would be futile because plaintiff waived reliance upon the doctrine of duress before the CO. Discussion A. Deemed Denial Provisions of the CDA Plaintiff relies on the 60-day deemed denial provisions of the CDA to bring this amended claim before the court. Pursuant to CDA § 605(c)(5)— Any failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the contracting officer denying the claim and will authorize the commencement of the appeal or suit on the claim as otherwise provided in this chapter. Under CDA § 605(c)(2), the CO has 60 days from the receipt of a certified claim to issue a decision or notify the contractor of when a decision will be forthcoming. Accordingly, if a CO fails to do so, the contractor may bring suit directly in the United States Court of Federal Claims. Boeing Co. v. United States, 26 Cl.Ct. 529, 534 (1992). B. Attorney General’s Authority In order for the 60-day deemed denial provision of the CDA to commence, “the contracting officer had to be obligated to deal with the claim.” Boeing, 26 Cl.Ct. at 534, citing White Plains Iron Works, Inc. v. United States, 229 Ct.Cl. 626, 629-30 (1981). Under 28 U.S.C. § 516 (1988)— Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General. Therefore, if the course of litigation is being pursued by" } ]

[ { "docid": "21356091", "title": "", "text": "Here, Sipco maintains that the contracting officer faded to issue a final decision on the July claim; thus, the claim is deemed denied pursuant to § 605(c)(5), and the jurisdictional requirements of the CDA are satisfied. The court disagrees. Regarding claims in excess of $50,000, § 605(e)(2) specifically allows the contracting officer sixty (60) days from the receipt of the claim to either issue a decision or inform the contractor when such decision will be issued. When Sipco filed its original complaint, which in Count II sought conversion of the termination for default to a termination for convenience, thirty-eight (38) days had elapsed since it submitted the properly certified July claim seeking the same redress. Absent the passage of sixty (60) days from the submission of the July claim to the contracting officer, Sipco could not deem its conversion claim denied. Accordingly, since no decision, either actual or deemed, had been made by the contracting officer when Sipco filed its original complaint, plaintiffs conversion claim was prematurely filed in this court. See White Plains Iron Works, Inc. v. United States, 229 Ct.Cl. 626, 629-30 (1981) (“[s]ince no contracting officer’s decision has been made, the plaintiff cannot yet commence suit in this court under the Contract Disputes Act.”); Claude E. Atkins Enters. Inc. v. United States, 15 Cl.Ct. 644, 646 (1988) (where plaintiffs written claim was submitted to the contracting officer substantially simultaneously with the filing of the complaint, there was no decision by the contracting officer, actual or deemed, at the time the complaint was filed, and no jurisdiction existed over plaintiffs claim). Moreover, a claim premature for lack of a contracting officer’s final decision does not ripen into a mature claim, while suit is pending, with the passage of sixty (60) days. Mendenhall v. United States, 20 Cl.Ct. 78, 84 (1990); see also Sharman v. United States, 2 F.3d 1564, 1571-72 (Fed.Cir.1993). Once plaintiffs claim for conversion became the subject of litigation in this court, upon the filing of the original complaint, the authority to resolve that claim was withdrawn from the contracting officer and resided within the exclusive" }, { "docid": "10031314", "title": "", "text": "claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation. That exclusive authority divests the contracting officer of his authority to issue a final decision on the claim.” 2 F.3d 1564, 1571 (Fed.Cir.1993), overruled on other grounds, Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir.1995) (citations omitted). Defendant contends that upon the filing of plaintiffs original complaint on September 16, 1998, the contracting officer was divested of the power to issue a final decision on the breach of contract claims. As a result, defendant argues, the contracting officer’s decision dated November 9, 1998, is invalid and cannot serve as the basis for a CDA action under this court’s jurisdiction. The court disagrees. A contracting officer’s final decision is a jurisdictional pre-requisite to filing suit in this court. The CDA allows the Court of Federal Claims to entertain claims arising out of any express or implied contract. See 41 U.S.C. § 602(a)(1) (1994). In order for the court to have jurisdiction under the CDA, a government contractor must present a valid claim to the contracting officer and the contracting officer must issue a final decision on the claim. See 41 U.S.C. § 605(a), (b) (1994); see also James M. Ellett Constr. Co., Inc. v. United States, 93 F.3d 1537, 1541 (Fed.Cir.1996); Case, Inc. v. United States, 88 F.3d 1004, 1008 (Fed.Cir.1996); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1573 (Fed.Cir.1995). An invalid contracting officer’s decision may not serve as the basis for a CDA action. See United States v. Grumman Aerospace Corp., 927 F.2d 575, 579 (Fed.Cir.1991). A contracting officer’s final decision is invalid when the contracting officer lacked authority to issue it. See Case, Inc., 88 F.3d at 1009. Therefore, in cases where the contracting officer lacks authority to issue a final decision, that decision cannot serve as the basis for a CDA action in this court. Defendant relies on the above-mentioned statute, 28 U.S.C. § 516 (1994), as support for the contention that the contracting officer lacked authority to issue a final decision in this case. However, the statute has been narrowly" }, { "docid": "2680756", "title": "", "text": "this action. According to plaintiff, once the C.O. concluded in his February 4,1991, letter that he would not issue a final decision on plaintiffs claims for termination for convenience costs and money damages, plaintiff could treat those claims as denied and properly subject to adjudication by the court. DISCUSSION Under the rules of this court, the court’s evaluation of a motion to dismiss for lack of jurisdiction is usually limited to the pleadings, and the unchallenged facts alleged in the complaint are deemed to be true and are construed in a light most favorable to plaintiff. RCFC 12(b)(1); see, e.g., Cupey Bajo Nursing Home, Inc. v. United States, 23 Cl.Ct. 406, 411 (1991). However, when jurisdiction is questioned, it is plaintiffs burden to establish the court’s jurisdiction over the subject matter. See Metzger, Shadyac & Schwartz v. United States, 10 Cl.Ct. 107, 109 (1986). Pursuant to the statutory scheme at 28 U.S.C. §§ 516-520 (1988), the United States Department of Justice has exclusive authority to supervise and conduct all litigation on behalf of the United States before this court. Sharman Co. v. United States, 2 F.3d 1564, 1571 (Fed.Cir.1993); Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 465, 534 F.2d 889, 901 (1976). Accordingly, if a claim is in litigation before the court, the contracting officer is without authority to issue a final decision on the claim. Sharman, 2 F.3d at 1571; Boeing Co. v. United States, 31 Fed.Cl. 289, 292 (1994); Sipco Servs. & Marine, Inc. v. United States, 30 Fed.Cl. 478, 485 (1994); Durable Metal Prods., Inc. v. United States, 21 Cl.Ct. 41, 46 (1990). Likewise, no denial may be deemed under 41 U.S.C. § 605(e)(5). Sipco, 30 Fed. Cl. at 485. Under the CDA, a final decision by the contracting officer, whatever the form, is a prerequisite for placing claims before the court; without a final decision, the court’s jurisdiction over the case never vests. United States v. W.H. Moseley Co., 730 F.2d 1472, 1475 (Fed.Cir.1984); Paragon Energy Corp. v. United States, 227 Ct.Cl. 176, 177, 645 F.2d 966, 967 (1981), aff'd, 230 Ct.Cl. 884 (1982);" }, { "docid": "10017874", "title": "", "text": "“final decision” because it was rendered without authority and thus is ineffective. The basis for this contention is the rule that “[o]nce a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation,” thereby “divestfing] the contracting officer of his authority to issue a final decision on the claim.” Sharman Co. v. United States, 2 F.3d at 1571 (citations omitted). Sharman based this rule on its reading of 28 U.S.C. §§ 516-20 (1994), which vest plenary authority in the Department of Justice to conduct litigation involving the United States. According to the defendant, these provisions of Chapter 28 not only deny the CO the power to issue final decisions of contract disputes, but also deny the Justice Department the power to voluntarily revest the CO with that authority. As such, defendant argues that a court cannot rectify a lack of subject matter jurisdiction due to a contractor’s failure to comply with 41 U.S.C. § 605 by granting a stay of judicial proceedings while the contractor, with the Justice Department’s acquiescence, certifies a claim and awaits a final decision or a “deemed denial” by the CO. Sharman clearly holds that a contracting officer may not render a “final decision” on a claim following the initiation of litigation on that claim. Though application of this rule sometimes leads to inefficient results, this court has, as it obliged to do under the doctrine of stare decisis, consistently applied this rule in cases where, as here, a CO’s decision occurs during the pendency of litigation. See, e.g., Aeronetics Division, AAR Brooks & Perkins Corp. v. United States, 12 Cl.Ct. 132, 138 (1987)(“plaintiffs retroactive filing of a properly certified claim after judicial proceedings have been instituted is ineffective under the [CDA] and will not cure an original failure to properly certify the claim”); Prefab Products, Inc. v. United States, 9 Cl.Ct. 786, 789 (1986)(holding that a plaintiffs retroactive filing of a certified claim is “ineffective under the Contract Disputes Act and [does] not cure the original failure to certify the claim at the proper time”). Moreover, this is" }, { "docid": "10031313", "title": "", "text": "Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1264 (Fed.Cir.1999); Brown v. United States, 86 F.3d 1554, 1559 (Fed.Cir.1996); Brighton Village Assoc. v. United States, 52 F.3d 1056, 1059 (Fed.Cir.1995). The Tucker Act purports to make this court the exclusive trial court for hearing disputes over government contracts that arise under the CDA. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(2) (1994); see also Quality Tooling, Inc. v. United States, 47 F.3d 1569, 1572 (Fed.Cir.1995). Therefore, defendant’s Rule 12(b)(1) motion to dismiss for lack of jurisdiction must be denied. In this case, defendant argues that the contracting officer was without authority to issue a final decision on plaintiffs breach of contract claims pursuant to 28 U.S.C. § 516 (1994). The statute states “[e]xcept as otherwise authorized by law, the conduct of litigation in which the United States ... is a party ... is reserved to officers of the Department of Justice, under the direction of the Attorney General.” 28 U.S.C. § 516 (1994). The court in Sharman Co., Inc. v. United States, explained that “[o]nce a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation. That exclusive authority divests the contracting officer of his authority to issue a final decision on the claim.” 2 F.3d 1564, 1571 (Fed.Cir.1993), overruled on other grounds, Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir.1995) (citations omitted). Defendant contends that upon the filing of plaintiffs original complaint on September 16, 1998, the contracting officer was divested of the power to issue a final decision on the breach of contract claims. As a result, defendant argues, the contracting officer’s decision dated November 9, 1998, is invalid and cannot serve as the basis for a CDA action under this court’s jurisdiction. The court disagrees. A contracting officer’s final decision is a jurisdictional pre-requisite to filing suit in this court. The CDA allows the Court of Federal Claims to entertain claims arising out of any express or implied contract. See 41 U.S.C. § 602(a)(1) (1994). In order for the court to have jurisdiction under the CDA, a government contractor must present" }, { "docid": "2306271", "title": "", "text": "finds that it has jurisdiction, Medina’s action in this Court would be precluded by several statutes. a. Preclusion Pursuant to 28 U.S.C. §§ 516 — 520 “Except as otherwise authorized by law, the conduct of litigation in which the United States, [or] an agency ... is a party ... and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.” 28 U.S.C. §§ 516. The responsibility of the Department of Justice (“DOJ”) extends to defending litigation against the United States in both domestic and foreign Courts. 32 C.F.R. § 516.4 (1998). Under this statute, once an action is commenced in a Court with appropriate jurisdiction, DOJ gains exclusive authority to act in the pending litigation and divests the CO of authority to act in the matter. See Sharman Co., Inc. v. United States, 2 F.3d 1564, 1572 (Fed.Cir.1993) (holding that claim in this Court precluded contracting officer’s authority to issue final decision on same claim), overruled on other grounds by Reflec-tone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir. 1995); Al Munford, Inc. v. United States, 30 Fed.Cl. 185, 190 (1993) (asserting that CO had no authority to act on plaintiffs claim while same claim was pending in district Court). This policy facilitates the resolution of cases by ensuring the United States the ability to speak with one voice on behalf of the common interests of the Government without being influenced by parochial interests of a particular agency. See United States v. Providence Journal Co., 485 U.S. 693, 706, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988) (interpreting 28 U.S.C. §§ 516 and 518(a)). Based upon the potentially over-inclusive scope of 28 U.S.C. §§ 516 — 520, the law has been “narrowly construed” in this Court. Hughes Aircraft Co. v. United States, 534 F.2d 889, 901, 209 Ct.Cl. 446, 465 (1976). Specifically, the pendency of an action in this Court over one aspect of claim does not bar the CO from issuing a final decision regarding a separate claim in the same matter. Case, Inc., 88 F.3d at 1010 (holding jurisdiction was appropriate" }, { "docid": "2306270", "title": "", "text": "contractor’s claim under 41 U.S.C. § 605(a); Braughler Co., Inc., 127 F.3d at 1480; Ellett, 93 F.3d at 1541-42; cf. Case, Inc. v. United States, 88 F.3d 1004, 1009 (Fed.Cir.1996) (articulating that an invalid CO’s decision may not stand as the jurisdictional basis for CDA claim). “Under the CDA, a final decision by the ... [CO], whatever the form, is a prerequisite for placing claims before the [C]ourt; without a final decision, the [C]ourt’s jurisdiction over the case never vests.” Cincinnati Elec. Corp. v. United States, 32 Fed.Cl. 496, 501 (1994) (citations omitted). 1. Contracting Officer’s Final Decision was Precluded by Statute The contract clearly memorialized the parties’ agreement to resolve disputes under and related to the contract pursuant to CDA. See 48 C.F.R. § 52.233-1 (disputes clause). Nevertheless, plaintiff insists that this case is properly venued in Portugal rather than with this Court or the Board. No decision is reached as to whether the Portuguese Court in which Medina first commenced its action has jurisdiction over this matter. However, presuming that the Portuguese Tribunal finds that it has jurisdiction, Medina’s action in this Court would be precluded by several statutes. a. Preclusion Pursuant to 28 U.S.C. §§ 516 — 520 “Except as otherwise authorized by law, the conduct of litigation in which the United States, [or] an agency ... is a party ... and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.” 28 U.S.C. §§ 516. The responsibility of the Department of Justice (“DOJ”) extends to defending litigation against the United States in both domestic and foreign Courts. 32 C.F.R. § 516.4 (1998). Under this statute, once an action is commenced in a Court with appropriate jurisdiction, DOJ gains exclusive authority to act in the pending litigation and divests the CO of authority to act in the matter. See Sharman Co., Inc. v. United States, 2 F.3d 1564, 1572 (Fed.Cir.1993) (holding that claim in this Court precluded contracting officer’s authority to issue final decision on same claim), overruled on other grounds by Reflec-tone, Inc. v. Dalton, 60 F.3d" }, { "docid": "9506465", "title": "", "text": "when it cannot be settled by agreement.” FAR 49.103. Upon receipt of a properly certified CDA claim, the contracting officer must render his decision within 60 days or notify the claimant when a final decision will be forthcoming. 41 U.S.C. § 605(e)(2). If no decision or notification is made within the required period, the contracting officer is deemed to have denied the contractor’s claim. Id. § 605(c)(5). All denials may be appealed to an agency board of contract appeals or this court. Id. §§ 606-07, 609(a). However, a court may direct the contracting officer to make a final decision before it hears the case. Id. § 605(e)(5). “Section 605(e)(5) is clearly a discretionary option for this court.” Durable Metal Prods., Inc. v. United States, 21 Cl.Ct. 41, 47 (1990). When the contracting officer declines to rule on a claim, therefore, we may direct the contracting officer to act, or we may act in the contracting officer’s stead as the circumstances warrant. II. The Government’s position is that a final decision by the contracting officer is impossible “after the subject matter of the claim is already in litigation,” and therefore cannot be deemed denied for the purpose of jurisdiction pursuant to 41 U.S.C. § 609(a). That is, a contracting officer cannot choose to deny a claim by the passage of 60 days because a decision to deny or approve a claim in litigation is the sole concern of the Department of Justice. 28 U.S.C. § 516 gives the Attorney General “exclusive and plenary power to supervise and conduct all litigation” involving the United States. Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 465, 534 F.2d 889 (1976). “Once a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation. That exclusive authority divests the contracting officer of his authority to issue a final decision on the claim.” Sharman Co. v. United States, 2 F.3d 1564, 1571 (Fed.Cir. 1993) (citations omitted), overruled on other grounds, Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir.1995) (en bane). Defendant contends that § 516 transferred control of plaintiffs’" }, { "docid": "20474504", "title": "", "text": "final decision on the claim.” Sharman Co. v. United States, 2 F.3d 1564, 1571-72 (Fed.Cir.1993) (citations omitted), overruled on other grounds by Reflectone, Inc., 60 F.3d at 1572. Thus, if a contractor submits a new claim to the contracting officer while its prior claim is in litigation, and the new claim “arise[s] from the same operative facts, claim[s] essentially the same relief, and merely assertfs] differing legal theories for that recovery,” Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed.Cir.2003), the contracting officer lacks the authority to act on the new claim. On the other hand, the contracting officer is not divested of its authority to act on new, different claims asserted by the contractor. See Case, Inc. v. United States, 88 F.3d 1004, 1010-11 (Fed.Cir.1996) (holding that the claim the contractor pursued in the original lawsuit was different from the claim that the contractor subsequently submitted to the contracting officer even though both claims “arose out of the same underlying set of facts”); Hughes Aircraft Co. v. United States, 534 F.2d 889, 901 (Ct.Cl.1976) (noting that the authority of the United States Department of Justice (“DOJ”) to control litigation in which the United States is a party is “broadly inclusive” and therefore “must be narrowly construed,” and further concluding that the DOJ’s authority “is limited to the conduct of pending litigation against the Government, and does not encompass exclusive control of other matters which, albeit related, are not yet so pending”); see also Joseph Morton Co. v. United States, 757 F.2d 1273, 1281 (Fed.Cir.1985) (noting that Congress intended “the word ‘claim’ to mean ... each claim under the CDA for money that is one part of a divisible case”). Applying these precepts, the Federal Circuit in Case, Inc. concluded that a contractor’s lawsuit did not preclude the contractor from submitting a new claim to the contracting officer. Specifically, in its original lawsuit before the Court of Federal Claims, the contractor challenged a “default termination and the government’s claim for unliquidated progress payments in the principal amount of $2,806,448.43.” 88 F.3d at 1010. After filing suit, the contractor" }, { "docid": "9506467", "title": "", "text": "termination for convenience recovery to the Department of Justice when plaintiffs requested incurred performance costs plus a reasonable profit and settlement expenses in their original complaint. This request was in effect a demand for termination for convenience costs as set forth in the contract’s Termination for Convenience Clause, FAR 52.249-2, according to the Government. In other words, defendant asserts that plaintiffs’ damages claim became part of the litigation when plaintiffs filed suit on June 7. Section 516 left the contracting officer powerless to act on plaintiffs’ post-complaint termination for convenience cost claim. The contracting officer did not necessarily disagree with the termination for convenience claim — he simply believed that he did not have the authority to settle it. There could have been no deemed denial upon which we could assert jurisdiction. See Case, Inc. v. United States, 88 F.3d 1004, 1009 (Fed.Cir.1996) (explaining Government’s argument that a deemed denial is invalid when the contracting officer does not have authority to issue a decision). Shannon Co. v. United States holds that the “contracting officer cannot address a CDA claim when that same CDA claim is in litigation.” Boeing Co. v. United States, 31 Fed.Cl. 289, 292 (1994) (emphasis added); Case, 88 F.3d at 1011 (distinguishing critical fact in Sharman that contractor’s initial claim and Government’s subsequent counterclaim were “mirror images” of same claim); Alaska Pulp Corp. v. United States, 34 Fed. Cl. 100, 103 (1995) (“Sharman establishes that the touchstone for the operation of the statute is whether the particular CDA claim is already in litigation by the filing of the complaint.”) (emphasis added). Thus, when a claim is properly before the court, the contracting officer has no authority to decide that same claim. Sharman activates § 516 to deprive the contracting officer of authority only if the post-complaint claim submitted to the contracting officer is identical to the pre-complaint claim “in litigation.” Termination for default is a government claim, and termination for convenience is a separate contractor claim. 41 U.S.C. § 605(a); Malone v. United States, 849 F.2d 1441, 1443 (Fed.Cir.1988). The fact that the two claims involve overlapping" }, { "docid": "10337632", "title": "", "text": "matter jurisdiction over these claims.”); Wallace O’Connor, 23 Cl.Ct. at 758. Compare Tecom, 24 Cl.Ct. at 614 (because the court lacked jurisdiction, a stay was improper), with Diversified Energy, Inc. v. Tennessee Valley Auth, 339 F.3d 437, 447 (6th Cir.2003) (applying the CDA and stating, “in light of our holding that the district court had jurisdiction ..., there was no need for the district court to stay the judicial proceedings.”). As explained above, the Court finds that it has and has had jurisdiction over this matter because United Partition’s claim was deemed denied before the complaint was filed. Accordingly, the Court had authority to issue the stay order “to obtain a decision on the claim by the [GSA] contracting officer.” 41 U.S.C. § 605(c)(5). Nevertheless, the decision issued by GSA’s contracting officer is not currently within the Court’s jurisdiction. b. GSA’s contracting officer’s authority while claim is in litigation. In the course of briefing and arguing the currently pending motion, the government has changed its position with regard to GSA’s contracting officer’s authority and thus the validity of that officer’s decision issued during the stay of proceedings. Initially, the government specifically averred that “because United [Partition] now has a valid contracting officer’s final decision, it will be able to file a complaint in this Court over which the Court will be able to assert jurisdiction.” Mot. at 16. However, at the hearing counsel withdrew this statement and argued that the contracting officers lost all authority over the claim when United Partition initiated its lawsuit in this Court. Hr’g Tr. at 16-21, 62. See also Def.’s Supp. Br. at 3. The Federal Circuit has explained that “[o]nce a contract claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation.” Sharman Co., 2 F.3d at 1571 (citing 28 U.S.C. §§ 516-20; Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 534 F.2d 889, 901 (1976)). The Justice Department’s exclusive authority is said to “divest[] the contracting officer of his authority to issue a final decision on the claim.” Sharman Co., 2 F.3d at 1571 (citing" }, { "docid": "9506466", "title": "", "text": "impossible “after the subject matter of the claim is already in litigation,” and therefore cannot be deemed denied for the purpose of jurisdiction pursuant to 41 U.S.C. § 609(a). That is, a contracting officer cannot choose to deny a claim by the passage of 60 days because a decision to deny or approve a claim in litigation is the sole concern of the Department of Justice. 28 U.S.C. § 516 gives the Attorney General “exclusive and plenary power to supervise and conduct all litigation” involving the United States. Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 465, 534 F.2d 889 (1976). “Once a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation. That exclusive authority divests the contracting officer of his authority to issue a final decision on the claim.” Sharman Co. v. United States, 2 F.3d 1564, 1571 (Fed.Cir. 1993) (citations omitted), overruled on other grounds, Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir.1995) (en bane). Defendant contends that § 516 transferred control of plaintiffs’ termination for convenience recovery to the Department of Justice when plaintiffs requested incurred performance costs plus a reasonable profit and settlement expenses in their original complaint. This request was in effect a demand for termination for convenience costs as set forth in the contract’s Termination for Convenience Clause, FAR 52.249-2, according to the Government. In other words, defendant asserts that plaintiffs’ damages claim became part of the litigation when plaintiffs filed suit on June 7. Section 516 left the contracting officer powerless to act on plaintiffs’ post-complaint termination for convenience cost claim. The contracting officer did not necessarily disagree with the termination for convenience claim — he simply believed that he did not have the authority to settle it. There could have been no deemed denial upon which we could assert jurisdiction. See Case, Inc. v. United States, 88 F.3d 1004, 1009 (Fed.Cir.1996) (explaining Government’s argument that a deemed denial is invalid when the contracting officer does not have authority to issue a decision). Shannon Co. v. United States holds that the “contracting officer cannot" }, { "docid": "10017873", "title": "", "text": "States, 44 Fed.Cl. 646, 652-53 (1999). Moreover, under these provisions, it is axiomatic that a contracting officer’s decision that is invalid may not serve as a basis for a CDA action. See United States v. Grumman Aerospace Corp., 927 F.2d 575, 579 (Fed.Cir.1991), cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991); W.H. Moseley Co., Inc. v. United States, 230 Ct.Cl. 405, 677 F.2d 850, 851-52 (1982), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 77 (1982). Thus, to gain a jurisdictional foothold in this court, a plaintiff pursuing a contract claim must satisfy two fundamental jurisdictional requirements—it must submit a claim for money presently due and must obtain a “final decision” on the claim, either actual or deemed. A. Has a “Final Decision” Been Rendered as to the Monetary Claims Contained in Count 1? As to the claims for money damages contained in Count 1 of the plaintiffs complaint, the defendant argues that the December 1, 1998, determination made by the CO regarding the plaintiffs claims was not a “final decision” because it was rendered without authority and thus is ineffective. The basis for this contention is the rule that “[o]nce a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation,” thereby “divestfing] the contracting officer of his authority to issue a final decision on the claim.” Sharman Co. v. United States, 2 F.3d at 1571 (citations omitted). Sharman based this rule on its reading of 28 U.S.C. §§ 516-20 (1994), which vest plenary authority in the Department of Justice to conduct litigation involving the United States. According to the defendant, these provisions of Chapter 28 not only deny the CO the power to issue final decisions of contract disputes, but also deny the Justice Department the power to voluntarily revest the CO with that authority. As such, defendant argues that a court cannot rectify a lack of subject matter jurisdiction due to a contractor’s failure to comply with 41 U.S.C. § 605 by granting a stay of judicial proceedings while the contractor, with the Justice" }, { "docid": "21356092", "title": "", "text": "Works, Inc. v. United States, 229 Ct.Cl. 626, 629-30 (1981) (“[s]ince no contracting officer’s decision has been made, the plaintiff cannot yet commence suit in this court under the Contract Disputes Act.”); Claude E. Atkins Enters. Inc. v. United States, 15 Cl.Ct. 644, 646 (1988) (where plaintiffs written claim was submitted to the contracting officer substantially simultaneously with the filing of the complaint, there was no decision by the contracting officer, actual or deemed, at the time the complaint was filed, and no jurisdiction existed over plaintiffs claim). Moreover, a claim premature for lack of a contracting officer’s final decision does not ripen into a mature claim, while suit is pending, with the passage of sixty (60) days. Mendenhall v. United States, 20 Cl.Ct. 78, 84 (1990); see also Sharman v. United States, 2 F.3d 1564, 1571-72 (Fed.Cir.1993). Once plaintiffs claim for conversion became the subject of litigation in this court, upon the filing of the original complaint, the authority to resolve that claim was withdrawn from the contracting officer and resided within the exclusive authority of the Attorney General pursuant to 28 U.S.C. §§ 516-520 (1988). See Sharman, 2 F.3d at 1571; Durable Metal Prods., Inc. v. United States, 21 Cl.Ct. 41 (1990). Under these circumstances, plaintiffs claim for conversion cannot be deemed denied, and the court must dismiss Count II on jurisdictional grounds for lack of a contracting officer’s final decision. 2. Count III. In Count III, Sipco seeks compensation for reimbursement monies arising out of the Settlement Agreement between NASA and ICNA, Sipco’s surety. Sipco’s request for this reimbursement compensation was first presented to the contracting officer in the properly certified July claim, and was first presented to the court over sixty (60) days later, in the amended complaint on October 19, 1992. The issue before the court is whether Sipco’s claim for reimbursement compensation can be correctly deemed denied thereby satisfying the jurisdictional requirements of the CDA. Defendant argues that despite the passage of sixty (60) days without a contracting officer’s decision, the claim cannot be deemed denied. Because the July claim had been pending before" }, { "docid": "17684529", "title": "", "text": "officer lacks authority to issue a final decision on a claim, there can be no valid deemed denial of the claim so as to confer CDA jurisdiction under 41 U.S.C. § 605(e)(5). However, we do not agree that, in this case, the contracting officer was without authority to issue a final decision. Thus, we reject the government’s jurisdictional argument. The basis for the government’s contention that the contracting officer was without authority to issue a final decision on Case’s equitable adjustment claim is the rule that “[ojnee a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation.” Sharman Co. v. United States, 2 F.3d 1564,1571 (Fed. Cir.1993). The “exclusive authority” given to the Department of Justice “divests the contracting officer of his authority to issue a final decision on the claim.” Id. at 1571. This rule arises from 28 U.S.C. §§ 516-20 (1994). Most importantly, under 28 U.S.C. § 516, “[ejxcept as otherwise authorized by law, the- conduct of litigation in which the United States ... is a party ... is reserved to officers of the Department of Justice, under the supervision of the Attorney General.” It is the government’s position that because the equitable adjustment claim in Case II was based upon the same specification defects alleged in the complaint in Case I, under 28 U.S.C. §§ 516, only the Department of Justice possessed the authority to act in Case II. In making its jurisdictional argument, the government relies upon our decision in Shar-man. In that case, the contracting officer issued a final decision terminating the Shar-man Company’s contract for default. 2 F.3d at 1566. In a letter sent just over a month after the termination for default, the contracting officer sought the return of unliqui-dated progress payments. Id. at 1566-67. The letter was not in the form of a final decision, however. Id. Following receipt of the final decision and the demand letter, Sharman filed suit in the Court of Federal Claims. In its complaint, Sharman “sought invalidation of the default termination, conversion of the termination to one of convenience" }, { "docid": "13539818", "title": "", "text": "the contractor. Accordingly, plaintiffs argue that the court has jurisdiction over one case (No. 99^15C) or the other (99-865C), and should not dismiss both of them. The Government argues that both claims must be dismissed by the court for lack of jurisdiction. This argument is based on the contention that EBC, not GDC, is the party with whom NAVSEA entered into Contract - 2100. If GDC is not in privity of contract with the Navy (i.e., not the contractor in Contract -2100), then it has no legal grounds on which “to maintain a suit as a contractor against the government under the [CDA, 41 U.S.C. Sec. 609].” Thomas Funding Corp. v. United States, 15 Cl.Ct. 495, 501 (1988). Until GDC’s present lawsuit is dismissed by the court, however, the Government argues that EBC is also precluded from pursuing any legal remedies by 28 U.S.C. Sec. 516 (1994), which reserves “the conduct of litigation in which the United States .... is interested ____to officers of the Department of Justice, under the direction of the Attorney General.” This means that the Navy contracting officer had no authority to issue a final decision on EBC’s administrative claim for breach of contract, since the matter was already in litigation and thus within the exclusive province of the Department of Justice. See Sharman Co., Inc. v. United States, 2 F.3d 1564, 1571 (Fed.Cir.1993). Accordingly, the lack of a final decision on EBC’s claim from the contracting officer within 60 days would not constitute a “deemed denial” conferring jurisdiction on this court under 41 U.S.C. Sec. 605(c)(5). In sum, the Government maintains that the GDC and EBC claims must both be dismissed, after which EBC, as the contractor, can institute a brand new action under the CDA by filing another administrative claim with the contracting officer. Which Corporation is the Contractor? To determine which corporation— GDC or EBC — is the contractor entitled to institute an action in this court, we must look first to the language of the contract instrument. If the provisions of a contract are clear and unambiguous, a court will give them" }, { "docid": "17684528", "title": "", "text": "“deemed denied.” Pathman Const. Co. v. United States, 817 F.2d 1573, 1575 (Fed.Cir.1987). Closely related to this rule of jurisdiction is the principle that an invalid contracting officer’s decision may not serve as the basis for a CDA action. United States v. Grumman Aerospace Corp., 927 F.2d 575, 579 (Fed.Cir.), cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991). A contracting officer’s final decision is invalid when the contracting officer lacked authority to issue it. See Ball, Ball & Brosamer, Inc. v. United States, 878 F.2d 1426, 1428 (Fed.Cir.1989) (where submitted claim was not properly certified, there was no valid claim for the contracting officer to decide). In this case, the government argues, the contracting officer was without authority to issue a final decision on Case’s equitable adjustment claim in Case II. Accordingly, the government continues, there could not be a valid deemed denial of the claim. Consequently, the Court of Federal Claims lacked jurisdiction in Case II. We agree with the premise of the government’s argument — that when a contracting officer lacks authority to issue a final decision on a claim, there can be no valid deemed denial of the claim so as to confer CDA jurisdiction under 41 U.S.C. § 605(e)(5). However, we do not agree that, in this case, the contracting officer was without authority to issue a final decision. Thus, we reject the government’s jurisdictional argument. The basis for the government’s contention that the contracting officer was without authority to issue a final decision on Case’s equitable adjustment claim is the rule that “[ojnee a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation.” Sharman Co. v. United States, 2 F.3d 1564,1571 (Fed. Cir.1993). The “exclusive authority” given to the Department of Justice “divests the contracting officer of his authority to issue a final decision on the claim.” Id. at 1571. This rule arises from 28 U.S.C. §§ 516-20 (1994). Most importantly, under 28 U.S.C. § 516, “[ejxcept as otherwise authorized by law, the- conduct of litigation in which the United States ... is" }, { "docid": "21356094", "title": "", "text": "the contracting officer for less than sixty (60) days when the original complaint was filed, the defendant contends that the contracting officer’s authority to consider the claim was withdrawn. For support, defendant directs the court to 28 U.S.C. §§ 516, 518. Specifically, § 516 provides: Except as otherwise authorized by law, the conduct of litigation in which the United States ... is a party ... is reserved to officers of the Department of Justice, under the direction of the Attorney General. 28 U.S.C. § 516. Section 518 adds that the Attorney General “shall conduct and argue suits and appeals in the ... United States [Court of Federal Claims].” Based on these sections, this court and the U.S. Court of Appeals for the Federal Circuit have found that when the contractor deems his claim denied, after waiting the requisite sixty (60) days, and files suit in this court, the contracting officer’s authority over the contractor’s claim is withdrawn. Sharman, 2 F.3d at 1571; Durable Metal, 21 Cl.Ct. at 46. In Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 534 F.2d 889 (1976), which is binding precedent on this court, the United States Court of Claims agreed with the Government that unless otherwise provided by law, the “Attorney General is charged by statute with exclusive and plenary power to conduct all litigation to which the U.S. is a party.” 209 Ct.Cl. at 465, 534 F.2d at 901. However, the Hughes court also held that because this power is so broadly inclusive, it must be narrowly construed. It must be limited to conduct of pending litigation against the United States “and does not encompass exclusive control of other matters which, albeit related, are not yet so pending.” 209 Ct.Cl. at 465, 534 F.2d at 901 (emphasis added). Indeed, in Sharman, the Federal Circuit emphasized that, although once a claim is in litigation the contracting officer’s authority to act on that claim is withdrawn, a claim is limited to each claim under the CDA for money that is part of a divisible case. See Sharman, 2 F.3d at 1569. Thus, under the CDA," }, { "docid": "20474503", "title": "", "text": "contract extension. As noted above, in its original complaint, plaintiff sought only the remission of liquidated damages, alleging that the Coast Guard “changed,” “modified,” and “failed to extend” the contract. Compl. ¶¶ 6-7. Plaintiff subsequently submitted a claim letter to Ms. Broussard seeking payment of $34,300 and an eighty-eight-day contract extension for additional work performed at the Coast Guard’s direction. Defendant argues that plaintiff, by alleging in its original complaint that the Coast Guard changed the contract requirements without extending the time required to perform the changed work, was precluded from filing a claim for time exten sions with Ms. Broussard while litigation on the original complaint was pending. As a result, defendant contends, Ms. Broussard’s January 16, 2007 decision was a nullity with respect to plaintiffs claim for an eighty-eight-day contract extension, rendering plaintiffs appeal of that aspect of the decision inoperative. The court agrees. “Once a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation. That exclusive authority divests the contracting authority to issue a final decision on the claim.” Sharman Co. v. United States, 2 F.3d 1564, 1571-72 (Fed.Cir.1993) (citations omitted), overruled on other grounds by Reflectone, Inc., 60 F.3d at 1572. Thus, if a contractor submits a new claim to the contracting officer while its prior claim is in litigation, and the new claim “arise[s] from the same operative facts, claim[s] essentially the same relief, and merely assertfs] differing legal theories for that recovery,” Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed.Cir.2003), the contracting officer lacks the authority to act on the new claim. On the other hand, the contracting officer is not divested of its authority to act on new, different claims asserted by the contractor. See Case, Inc. v. United States, 88 F.3d 1004, 1010-11 (Fed.Cir.1996) (holding that the claim the contractor pursued in the original lawsuit was different from the claim that the contractor subsequently submitted to the contracting officer even though both claims “arose out of the same underlying set of facts”); Hughes Aircraft Co. v. United States, 534 F.2d 889," }, { "docid": "10031315", "title": "", "text": "a valid claim to the contracting officer and the contracting officer must issue a final decision on the claim. See 41 U.S.C. § 605(a), (b) (1994); see also James M. Ellett Constr. Co., Inc. v. United States, 93 F.3d 1537, 1541 (Fed.Cir.1996); Case, Inc. v. United States, 88 F.3d 1004, 1008 (Fed.Cir.1996); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1573 (Fed.Cir.1995). An invalid contracting officer’s decision may not serve as the basis for a CDA action. See United States v. Grumman Aerospace Corp., 927 F.2d 575, 579 (Fed.Cir.1991). A contracting officer’s final decision is invalid when the contracting officer lacked authority to issue it. See Case, Inc., 88 F.3d at 1009. Therefore, in cases where the contracting officer lacks authority to issue a final decision, that decision cannot serve as the basis for a CDA action in this court. Defendant relies on the above-mentioned statute, 28 U.S.C. § 516 (1994), as support for the contention that the contracting officer lacked authority to issue a final decision in this case. However, the statute has been narrowly construed because of its potential for disruptive effects. See Case, Inc., 88 F.3d at 1011; Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 534 F.2d 889, 901 (1976); Alaska Pulp Corp. v. United States, 34 Fed.Cl. 100, 103 (1995); Sipco Servs. & Marine Inc., 30 Fed.Cl. at 485. Application of the statute has been limited to the conduct of litigation pending against the United States, and to exclude other matters, albeit related, that are not yet pending. See Hughes Aircraft Co., 534 F.2d at 901; see also Sipco Servs. & Marine Inc., 30 Fed.Cl. at 485. For the statute to have effect in the instant case, the complaint and the matters pending before the contracting officer would have to be the same CDA claim. See FAR § 3.201; 48 C.F.R. § 33.201 (1998). Defendant contends that plaintiffs takings claim and breach of contract claims are the “same” because the claims are based on the same factual predicate and request the same amount for relief. The court in Sharman Co., Inc., held that a claim" } ]

[ { "docid": "9465541", "title": "", "text": "to Cedars for purposes of reviewing a Rule 12(b)(1) dismissal, and because it submitted documentation with its complaint supporting its allegations that it is suffering immediate and substantial hardship abroad. We cannot accept either of Cedars’ positions. The burden of establishing jurisdiction in the district court lies with the party seeking to invoke the court’s jurisdiction. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 201, 81 L.Ed. 183 (1936); see Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir.1990); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). If a Rule 12(b)(1) motion simply challenges the court’s subject matter jurisdiction based on the sufficiency of the pleading’s allegations—that is, the movant presents a “facial” attack on the pleading—then those allegations are taken as true and construed in a light most favorable to the complainant. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (case dismissed upon facial attack on complaint, without consideration of any extrinsic evidence); 2A James W. Mooreet-al., Moore’s Federal Practice ¶ 12.07[2.-1], at 12-51 to -52 (1993). If the Rule 12(b)(1) motion denies or controverts the pleader’s allegations of jurisdiction, however, the movant is deemed to be challenging the factual basis for the court’s subject matter jurisdiction. Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558-59 (9th Cir.1987); 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1363, at 456-57 (1990). In such a case, the allegations in the complaint are not. controlling, KVOS, 299 U.S. at 277-79, 57 S.Ct. at 200-01; Trentacosta, 813 F.2d at 1559; Thornhill Publishing Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979); 5A Wright & Miller, supra, § 1363, at 457-58, and only uncontroverted' factual allegations are accepted as true for purposes of the motion. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); 5A Wright & Miller, supra, §§ 1350, 1363, at 219-20, 457. All other facts .underlying the controverted" } ]

[ { "docid": "16852803", "title": "", "text": "to advocate.” 52 Fed.Cl. 365, 369 (2002). B. Motion to Dismiss — RCFC 12(b)(1) Subject matter jurisdiction, which is “an inflexible matter that must be considered before proceeding to evaluate the merits of a case,” Matthews, 72 Fed.Cl. at 278, may be challenged at any time by the parties, by the court stia sponte, or on appeal, Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.2004). When considering an RCFC 12(b)(1) motion, the burden of establishing the court’s subject matter jurisdiction resides with the party seeking to invoke it. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). The court “consider[s] the facts alleged in the complaint to be true and correct.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); see also Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (recognizing the court’s obligation to “assume all factual allegations to be true and to draw all reasonable inferences in plaintiffs favor”); cf. Betz v. United States, 40 Fed.Cl. 286, 290 (1998) (noting that the court is not required to accept plaintiffs framing of the complaint and that it should “look to plaintiffs factual allegations to ascertain the true nature of the claims”). A plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence, Reynolds, 846 F.2d at 748, and needs only set forth a prima facie showing of jurisdictional facts to survive a motion to dismiss, Raymark Indus., Inc. v. United States, 15 Cl.Ct. 334, 338 (1988). Where a defendant or the court challenges jurisdiction, “the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction.” Murphy v. United States, 69 Fed.Cl. 593, 600 (2006). The court may consider matters outside the pleadings when examining jurisdiction. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir.1993); see also Reynolds, 846 F.2d at 748 (“If a motion to dismiss for lack of subject matter jurisdiction ... challenges the truth of the jurisdictional facts alleged in the complaint, the district court may consider" }, { "docid": "13291754", "title": "", "text": "Plaintiffs then filed suit in the Western District of Washington pursuant to § 1540(g)(1). That court held that it lacked subject matter jurisdiction over the case and transferred the complaint to the Court of International Trade. See Salmon Spawning & Recovery Alliance v. Spero, No. C05-1878Z, 2006 WL 1207909 (W.D. Wash. May 3, 2006); see also 28 U.S.C. § 1631 (2000)(providing for transfer for want of jurisdiction). II. DEFENDANTS’ MOTION TO DISMISS Subject matter jurisdiction constitutes a “threshold matter” in all cases, such that without it, a case must be dismissed without proceeding to the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). “The burden of establishing jurisdiction lies with the party seeking to invoke th[e] Court’s jurisdiction.” Bhullar v. United States, 27 CIT 532, 535, 259 F. Supp. 2d 1332, 1334 (2003) (citing Old Republic Ins. Co. v. United States, 14 CIT 377, 379, 741 F. Supp. 1570, 1573 (1990) (citing McNutt v. GM Acceptance Corp., 298 U.S. 178, 189 (1936))), aff'd, 93 F. App’x 218 (Fed. Cir. 2004). A. Standard of Review An analysis of whether a Court has subject matter jurisdiction “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Bennett v. Spear, 520 U.S. 154, 161 (1997) (quotations & citation omitted). In its constitutional aspect, a plaintiff must satisfy the “‘case’ or ‘controversy’ requirement of Article III,” which requires that the “plaintiff . . . demonstrate [1] that he has suffered [an] ‘injury in fact’ [2] . . . ‘fairly traceable’ to the actions of the defendant, and [3] that the injury will likely be redressed by a favorable decision.” Id. (citations omitted). When examining these factors, “general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum [e] that general allegations embrace those specific facts that are necessary to support the claim.’ ” Earth Island Inst., 19 CIT at 1465, 913 F. Supp. at 564 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “[T]he material allegations of a complaint are taken as" }, { "docid": "21992759", "title": "", "text": "and that the entries may not be reliquidated. II. Standard of Review Where jurisdiction is challenged, “[pjlaintiffs carry the burden of demonstrating that jurisdiction exists.” Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F.Supp. 428, 432 (1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). In deciding a USCIT R. 12(b)(1) motion that does not challenge the factual basis for the complainant’s allegations, and when deciding a USCIT R. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted, the court assumes all factual allegations to be true and draws all reasonable inferences in plaintiffs .favor. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 & n. 13 (Fed.Cir.1993); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (subject matter jurisdiction); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (failure to state a claim). III. Discussion A. Jurisdiction Defendant invokes the general rule that section 1581(i) jurisdiction attaches only if jurisdiction under another section of 28 U.S.C. § 1581 (2000) is unavailable or manifestly inadequate. See Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987). Defendant contends that plaintiffs had an available remedy to challenge the liquidations via the protest procedure of 19 U.S.C. § 1514(a)(5), 19 U.S.C. § 1515, and 28 U.S.C. § 1581(a) (2000). Defendant’s proposed jurisdictional basis, however, is not responsive to the gravamen of plaintiffs’ complaint because the protest procedure of sections 1514 and 1515 applies to decisions of Customs, not Commerce. Plaintiffs’ challenge is to an action of Commerce. See Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304-05, 1309-10 (Fed.Cir.2004) (“Because the alleged agency error in [this] ... case is on the part of Commerce, and not Customs, sections 514 and 515 [of the Tariff Act of 1930] do not apply.”); Ugine & Alz Belgium v. United States, 452 F.3d 1289, 1295-96 (Fed.Cir.2006) (“Belgium”); see also Mukand Int’l, Ltd. v. United States, 29 CIT -, -, 412 F.Supp.2d 1312, 1316-17 (2005). Once Commerce issues liquidation instructions, Customs must liquidate the" }, { "docid": "5034698", "title": "", "text": "waiver of the statute of limitations, Nitek had seven days “to file a petition for relief from the penalty issued.” Compl. Ex. M. On March 3, 2011, counsel for Defendant filed a letter with Customs stating that Nitek had acted with reasonable care in classifying its merchandise and, in an effort to resolve the claim, offered to pay all duties owed. Def.’s Reply Ex. I. Plaintiff thereafter filed this action. II. Standard of Review A fundamental question in any action before the Court is whether subject matter jurisdiction exists over the claims presented. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); see 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3522 (3d ed. 2011) (“A federal court’s entertaining a case that is not within its subject matter jurisdiction is no mere teehnical violation.... ”). The plaintiff bears the burden of establishing jurisdiction, see Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006), but, in deciding a Rule 12(b)(1) motion to dismiss, the Court accepts as true all uncontroverted factual allegations in the complaint, Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1355 (Fed.Cir.2011). To survive a Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 n. 13 (Fed.Cir.1993) motion to dismiss, “a complaint must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plaintiff" }, { "docid": "3904721", "title": "", "text": "alleged violation of any provision of any law, rule, or regulation enforced by Customs, specifically 19 C.F.R. §§ 111.29 and 143.6. Subsequently, Landweer filed its motion to dismiss. Standard of Review In deciding a USCIT Rule 12(b)(1) motion to dismiss that does not challenge the factual basis for the complainant’s allegations and a USCIT Rule 12(b)(5) motion to dismiss for failure to state a claim upon which relief can granted, the court assumes all factual allegations to be true and draws all reasonable inferences in plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (subject matter jurisdiction); Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 & n. 13 (Fed.Cir.1993) (failure to state a claim). Plaintiffs factual allegations must be “enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “[T]o raise a right to relief above the speculative level,” a complaint must allege “enough factual matter (taken as true)” by making allegations “plausibly suggesting (not merely consistent with)” a valid claim. Id. at 556, 127 S.Ct. 1955. The basis of the court’s determination is limited to the facts stated on the face of the complaint, documents appended to the complaint, and documents incorporated in the complaint by reference. See Asahi Seiko Co. v. United States, 33 CIT ——,-, (2009), 2009 WL 3824745, at *4 (quoting Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)). Discussion 1. Subject Matter Jurisdiction Subject matter jurisdiction is a threshold inquiry. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Plaintiff carries “the burden of demonstrating that jurisdiction exists.” Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F.Supp. 428, 432 (1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). Pursuant to 28 U.S.C. § 1582, this Court possesses exclusive jurisdiction to entertain “any civil action" }, { "docid": "21992758", "title": "", "text": "days earlier on August 9, 2004. Plaintiffs subsequently commenced this action on February 11, 2005. Pending the decision in this case, the previously assigned judge stayed plaintiffs’ action challenging the Final Results. Both actions were then transferred to this judge for disposition. Plaintiffs contend that Commerce’s liquidation instructions to United States Customs and Border Protection (“Customs”) were unlawful because Commerce may not issue liquidation instructions within the 60-day period established by 19 U.S.C. § 1516a(a)(2)(A) for commencing an action in the Court of International Trade (30 days to file a summons, and 30 days thereafter to file a complaint). Otherwise, plaintiffs argue, Commerce could deprive an interested party of its right to judicial review simply by instructing Customs to liquidate the entries, mooting an action before the expiration of the time allowed to file a summons and complaint and to enjoin liquidation. Accordingly, plaintiffs maintain that liquidations based on unlawful instructions are void. Defendant, on the other hand, urges the court to hold that the liquidation instructions were lawfully issued, that the liquidations were valid, and that the entries may not be reliquidated. II. Standard of Review Where jurisdiction is challenged, “[pjlaintiffs carry the burden of demonstrating that jurisdiction exists.” Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F.Supp. 428, 432 (1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). In deciding a USCIT R. 12(b)(1) motion that does not challenge the factual basis for the complainant’s allegations, and when deciding a USCIT R. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted, the court assumes all factual allegations to be true and draws all reasonable inferences in plaintiffs .favor. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 & n. 13 (Fed.Cir.1993); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (subject matter jurisdiction); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (failure to state a claim). III. Discussion A. Jurisdiction Defendant invokes the general rule that section 1581(i) jurisdiction attaches only if jurisdiction under another section of" }, { "docid": "13424396", "title": "", "text": "of the Tariff Act governs the review of protests filed under 19 U.S.C. §1514 (1994), and is codified at 19 U.S.C. §1515 (1994). The Court construes this portion of Defendant’s motion to dismiss as a USCIT R. 12(b)(1) motion to dismiss for lack of jurisdiction over the subject matter. In deciding such a motion, the Court looks to whether the moving party challenges the sufficiency of the pleadings or the factual basis underlying the pleadings. In the first instance, the Court must accept as true all facts alleged m the non-moving party’s pleadings. In the second instance, the Court accepts as true only those facts which are uncontroverted. All other facts are subject to fact-finding by the Court. Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993). Here, Defendant does not attack the sufficiency of the allegations in Plaintiffs’ pleadings, but instead asserts Plaintiffs’ action is barred because Plaintiffs failed to exhaust their administrative remedies. Answer at para. 21. Thus, Defendant challenges the actual existence of subject matter jurisdiction. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1350 (2d ed. 1990). Therefore, the allegations in Plaintiffs’ Complaint are not controlling, and only uncontroverted factual allegations are accepted as true for purposes of the USCIT R. 12(b)(1) portions of this Motion To Dismiss. All other facts underlying the controverted jurisdictional allegations are in dispute and are subject to fact-finding by this Court. Section 1520(d) permits the reliquidation of an entry to refund any excess duties paid on goods qualifying under the rules of origin set out in 19 U.S.C. § 3332 for which no claim for preferential tariff treatment was made at the time of importation, if the importer, within one year after the date of importation, files a claim, notwithstanding the fact that a valid protest was not filed. At oral argument, the parties argued whether §1520(d) petition denials were final, and therefore protestable, under §1514. The wording of §1514(a) is somewhat unclear on this point. This lack of clarify leads to confiision regarding jurisdiction under §1581(a). If the denials are not protestable," }, { "docid": "16670672", "title": "", "text": "2002, Plaintiff filed this action against Commerce and the ITC seeking injunctive relief and unspecified monetary and punitive damages. (Pl.’s Compl. at 3.) Standard of Review The burden of establishing jurisdiction lies with the party seeking to invoke this Court’s jurisdiction. Old Republic Ins. Co. v. United States, 741 F. Supp. 1570, 1573 (Ct. Int’l Trade 1990) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In this action, the burden of establishing jurisdiction falls to Tony Bhullar, the plaintiff appearing pro se. It is well settled that the United States is immune from suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Such a waiver of sovereign immunity “must be unequivocally expressed” in the statute and will be “strictly construed ... in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996). For the purposes of antidumping and countervailing duty laws, the government’s express waiver of sovereign immunity is contained in 28 U.S.C. § 1581(2002). Parties’ Contentions A. Defendants’ Contentions Although Defendants have filed separate motions to dismiss and supporting memoranda, because their contentions are substantially similar, they will be considered together for the purposes of this Opinion. Defendants contend that this Court does not have subject matter jurisdiction over this action for the following reasons: 1) under 19 U.S.C § 1516a(g), a NAFTA binational panel has exclusive review of the challenged determinations; 2) residual jurisdiction under § 1581(i) cannot be asserted under these circumstances; 3) even if jurisdiction under §§ 1581(c) or (i) could be established, Plaintiff failed to fulfil the statutory timeliness requirements; and 4) Plaintiff lacks standing to bring this action. (Mem. of Law in Supp. of Def. U.S. Int’l Trade Comm’n’s Mot. to Dismiss This Action (“ITC Br.”) at 4, 7; Def. United States’ Mem. in Supp. of Its Mot. to Dismiss for Lack of Subject Matter Jurisdiction (“Commerce Br.”) at 7, 9-10, 11, 13.) 1. A NAFTA binational panel has exclusive review of these determinations. Defendants contend that under 19 U.S.C. §" }, { "docid": "20409268", "title": "", "text": "no rate for the intermediate companyfies) involved in the transaction.” Id. Later in December 2006, Commerce issued certain “assessment instructions.” See Def.’s Confidential Ex. A, ECF No. A. On February 17, 2007, Customs issued a Notice of Action assessing additional duties on Celta’s entry. Compl. ¶ 12. On March 30, 2007, Customs liquidated Celta’s entry with antidumping duties assessed at the “all others” rate of 17.21%. Id. ¶ 13. On April 26, 2007, Celta paid the additional antidumping duty assessment amount of $412,316.29, including interest, and on June 29, 2007 filed an administrative protest with Customs, claiming “that the Department’s liquidation instructions to Customs ... was [sic ] not in accordance with law.” Id. ¶¶ 14-15. Customs summarily denied the protest on December 4, 2009. Id. ¶ 16. Celta filed a summons on June 2, 2010 and a complaint on May 23, 2011. Summons, ECF No. 1; Compl. 1. In its complaint, plaintiff asserted jurisdiction “pursuant to 28 U.S.C. § 1581(a), as this action is commenced to contest the denial of a protest under 19 U.S.C. § 1515” and “[a]lternatively and to the extent that any claim herein is not covered by 28 U.S.C. § 1581(a) ... pursuant to 28 U.S.C. § 1581©.” Compl. ¶¶ 1-2. Plaintiffs complaint states three claims, each of which challenges the liquidation instructions Commerce transmitted to Customs. Id. ¶¶ 18-35. As relief, plaintiff seeks a judgment directing Customs to refund all duties deemed improperly assessed and collected, in addition to interest, on the subject entry. Id., Request for Judgment and Relief. On December 23, 2011, defendant United States filed its motion to dismiss and accompanying memorandum of law. Def.’s Mot.; Def.’s Mem. Plaintiff responded to defendant’s motion on July 25, 2012, Pl.’s Resp. to Def.’s Mot. to Dismiss, ECF No. 37, and defendant replied to plaintiffs response on August 23, 2012, Def.’s Reply Mem., ECF No. 40 (“Def.’s Reply”). II. Discussion The party invoking a court’s jurisdiction has the burden of demonstrating the requisite jurisdictional facts. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Norsk Hydro" }, { "docid": "20795343", "title": "", "text": "most favorable to that party. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). However, if the Rule 12(b)(1) motion challenges the factual allegations of jurisdiction in the party’s pleadings, the movant is deemed to be questioning the factual basis for the court’s subject matter jurisdiction. Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558-59 (9th Cir. 1987) (referencing Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1563, at 653-54 (1969)). In such a case, the allegations in the complaint are not controlling and only the uncontroverted facts are accepted as true. Id.; see also Power-One, Inc. v. United States, 83 F. Supp. 2d 1300, 1303 (Ct. Int’l Trade 1999) (quoting Cedars-Sinai Med. Cntr. v. Walters, 11 F. 3d 1573, 1583-84 (Fed. Cir. 1993)). All other facts underlying the controverted jurisdiction are in dispute and are subject to fact-finding by this Court. Power-One, Inc., 83 F. Supp. at 1308. In the present case, Defendant’s Rule 12(b)(1) motion to dismiss challenges the basis of AAI’s allegations of jurisdiction. Specifically, Customs is questioning AAI’s assertion that this action is timely and properly before this Court. Only the uncontroverted facts will be accepted as true. If, after a review of the pleadings and extrinsic evidence, any doubt remains whether this Court has jurisdiction to hear this action, the Court will refrain from granting Defendant’s motion to dismiss. See Hamlet v. United States, 873 F.2d 1414, 1416 (Fed. Cir. 1989) (stating that a complaint should only be dismissed if the plaintiff cannot prove any set of facts that would entitle the plaintiff to relief (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957))). Parties’ Contentions A. Defendant’s Contentions Defendant argues that this Court lacks subject matter jurisdiction under 28 U.S.C. § 1581(a) because AAI’s claim is untimely. (Def’s Br. at 5.) Defendant asserts that this Court lacks jurisdiction because AAI failed to commence an action within 180 days after Customs partially denied the Initial Protests in HQ 960755. (Id.) Defendant emphasizes the language in 28 U.S.C. § 2636(a)(1) which states that “[a] civil action contesting the denial, in whole" }, { "docid": "3409976", "title": "", "text": "inadequate notice of reliquidation. Defendant, United States Customs Service (Customs), replied to plaintiff's fact assertions by pointing to the notice of reliquidation on the denial in part of SSK’s protest plaintiff admitted receiving. Defendant also noted that a presumption of regularity attaches to government acts like the provision of notice. (See Defendant’s Reply Brief in Support of Motion to Dismiss for Lack of Jurisdiction and in Opposition to Plaintiffs Response, at 3 (citing Penrod Drilling Co. v. United States, 727 F.Supp. 1463 (CIT 1989)).) As argued by Customs, the Court notes \"government officials are entitled to the benefit of a presumption that their duties are performed in the manner required by law\" and \"[i]n the absence of an affidavit or other evidence from plaintiff, the presumption that notice was posted is sufficient to negate the existence of a genuine issue of material fact.” Star Sales & Distributing Corp. v. United States, 663 F.Supp. 1127, 1129, 10 C.I.T. 709(1986). Because plaintiff presented no evidence to support its claim of inadequate notice, the Court finds the government’s presumption of regularity prevails and no further discussion of this issue is warranted. . Defendant, United States, filed its motion to dismiss for lack of subject matter jurisdiction pursuant to U.S. CIT 12(b)(1). In deciding such a motion, the Court considers whether the moving party challenges the sufficiency of the pleadings or the factual basis underlying the pleadings. In the first instance, the Court must accept as true all facts alleged in the non-moving party’s pleadings. In the second instance, the Court accepts as true only those facts which are uncontroverted. All other facts are subject to fact finding by the Court. See Power-One Inc. v. United States, 83 F.Supp.2d 1300, 1303 n. 9 (CIT 1999) (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir.1993)). In this case, defendant challenges the actual existence of subject matter jurisdiction by asserting plaintiff, SSK Industries, Inc. (SSK), failed to comply with the statutory requirements for judicial review under 28 U.S.C. § 1581(a) (1994). Therefore, the Court will only accept uncon-troverted factual allegations as true for purposes" }, { "docid": "20795341", "title": "", "text": "in accordance with AAI’s proposed multiple functional units classification approach which resulted in a recalculation of the total duties owing. (Def.’s Br. at 4; Pl.’s Br. at 6.) However, Customs did not change the classification of certain items, such as the safety fences, material handling jigs, and gauges. (Def.’s Br. at 5; PL’s Br. at 5.) Further, Customs applied the Value Advance as it had in the original liquidation. (Id.) AAI filed a protest to the reliquidation (“Reliquidation Protest”) on January 25, 2001. (PL’s Compl. Ex. F.) AAI argued in the Reliquidation Protest that Customs should have classified all of the merchandise as a single functional unit or that Customs should have included the safety fences, gauges, material handling jigs, etc. in the classification as parts of functional units of welding equipment or material handling equipment. (Attachment B in Support of Reliquidation Protest No. 1101-01-100053 at 2-3, PL’s Compl. Ex. F at 8-9.) Further, AAI reasserted its argument that Customs improperly applied the Value Advance to the entries. (Id. at 4-8, PL’s Compl. Ex. F at 10-14.)' Customs denied AAI’s Reliquidation Protest on June 12, 2001. (PL’s Summons, Form 1-1.) Although filed within the requisite 90 days after reliquidation, Customs did not address the merits of AAI’s Reliquidation Protest; rather, Customs denied the protest as “Untimely Filed.” (PL’s Summons, Form 1-2.) AAI then filed a summons in this Court on December 6, 2001 challenging the denial of the Reliquidation Protests. The summons was filed within 180 days of the denial of the Reliquidation Protests and almost 14 months after Customs issued its decision on the Initial Protests. Standard of Review The burden of establishing jurisdiction lies with the party seeking to invoke this Court’s jurisdiction. Old Republic Ins. Co. v. United States, 741 F. Supp. 1570, 1573 (Ct. Int’l Trade 1990) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In this case, AAI bears the burden of establishing jurisdiction. If a Rule 12(b)(1) motion to dismiss challenges subject matter jurisdiction based on the sufficiency of a party’s pleadings, then those pleadings are construed in a light" }, { "docid": "21865017", "title": "", "text": "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 jurisdiction the analysis is similar to a 12(b)(6) motion, whereby the facts in the complaint are assumed to be true). However, if the movant challenges the existence of subject matter jurisdiction, the pleadings are treated as evidence on the issue. Indeed, in this type of 12(b)(1) motion, the requirement is not unlike that for summary judgment, where the non-moving party cannot rest on the allegations in the complaint, but must present evidence to defeat the motion. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir.1990); Trentacosta v. Frontier Pacific Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir.1987) (quoting Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1363 at 653-54 (1969)); Tolan v. United States, 176 F.R.D. 507, 510 (D.Pa.1998) (holding that the court may review evidence and resolve factual disputes regarding jurisdictional allegations in a 12(b)(1) motion). The Defendant’s Motion to Dismiss challenged the existence of subject matter jurisdiction, not simply the adequacy of the complaint’s allegations. Under this analysis, there is no presumption of truthfulness" }, { "docid": "9139205", "title": "", "text": "Security Act, and specifically not to use acquisition cost to calculate payment rates unless Defendants have complied with 42 U.S.C. § 1395l(t)(14)(A)(iii)(I). Pls.' Mem. at 35. The government has opposed Plaintiffs' motion and filed a motion to dismiss the action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See generally Defs.' Mot. The parties' motions are fully briefed and ripe for this Court's consideration. III. LEGAL STANDARDS A. Federal Rule of Civil Procedure 12(b)(1) A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)\"presents a threshold challenge to the Court's jurisdiction.\" Curran v. Holder, 626 F.Supp.2d 30, 32 (D.D.C. 2009) (quoting Agrocomplect, AD v. Republic of Iraq, 524 F.Supp.2d 16, 21 (D.D.C. 2007) ). \"It is to be presumed that a cause lies outside [the federal courts'] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.\" Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citing McNutt v. Gen. Motors Acceptance Corp. , 298 U.S. 178, 182-83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ; Turner v. Bank of N.A. , 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799) ). In determining whether the plaintiff has met this burden, a court must accept \"the allegations of the complaint as true,\" Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1129 (D.C. Cir. 2015), and \"construe the complaint 'liberally,' granting the plaintiff 'the benefit of all inferences that can be derived from the facts alleged,' \" Barr v. Clinton , 370 F.3d 1196, 1199 (D.C. Cir. 2004) (quoting Kowal v. MCI Commc'ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir.1994) ). However, \"the [p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.\" Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F.Supp.2d 9, 13-14 (D.D.C. 2001) (internal quotation marks omitted) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 ). The Court" }, { "docid": "21865018", "title": "", "text": "jurisdiction the analysis is similar to a 12(b)(6) motion, whereby the facts in the complaint are assumed to be true). However, if the movant challenges the existence of subject matter jurisdiction, the pleadings are treated as evidence on the issue. Indeed, in this type of 12(b)(1) motion, the requirement is not unlike that for summary judgment, where the non-moving party cannot rest on the allegations in the complaint, but must present evidence to defeat the motion. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir.1990); Trentacosta v. Frontier Pacific Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir.1987) (quoting Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1363 at 653-54 (1969)); Tolan v. United States, 176 F.R.D. 507, 510 (D.Pa.1998) (holding that the court may review evidence and resolve factual disputes regarding jurisdictional allegations in a 12(b)(1) motion). The Defendant’s Motion to Dismiss challenged the existence of subject matter jurisdiction, not simply the adequacy of the complaint’s allegations. Under this analysis, there is no presumption of truthfulness of the Plaintiffs allegations, and the burden is on the Plaintiff to establish the Court’s jurisdiction. See Thornhill Publishing Co., 594 F.2d at 733 (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir.1977)). 2. DISCUSSION As discussed in the Court’s Order of July 7, 2002, the Defendant’s Motion to Dismiss is premised on the Defendant’s argument that the Court lacks subject matter jurisdiction in this case. Specifically, the Defendant argues that Plaintiff has failed to comply with the applicable statute of limitations under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80. Title 28 of the United States Code, section 2401(b) embodies the FTCA’s statute of limitations and reads: [а] 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 .... The Court takes judicial notice that Plaintiff filed its first administrative claim on December 31, 1998. (Complaint, ¶ 4(a)). [б] How a claim “accrues” is governed by federal" }, { "docid": "20795342", "title": "", "text": "at 10-14.)' Customs denied AAI’s Reliquidation Protest on June 12, 2001. (PL’s Summons, Form 1-1.) Although filed within the requisite 90 days after reliquidation, Customs did not address the merits of AAI’s Reliquidation Protest; rather, Customs denied the protest as “Untimely Filed.” (PL’s Summons, Form 1-2.) AAI then filed a summons in this Court on December 6, 2001 challenging the denial of the Reliquidation Protests. The summons was filed within 180 days of the denial of the Reliquidation Protests and almost 14 months after Customs issued its decision on the Initial Protests. Standard of Review The burden of establishing jurisdiction lies with the party seeking to invoke this Court’s jurisdiction. Old Republic Ins. Co. v. United States, 741 F. Supp. 1570, 1573 (Ct. Int’l Trade 1990) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In this case, AAI bears the burden of establishing jurisdiction. If a Rule 12(b)(1) motion to dismiss challenges subject matter jurisdiction based on the sufficiency of a party’s pleadings, then those pleadings are construed in a light most favorable to that party. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). However, if the Rule 12(b)(1) motion challenges the factual allegations of jurisdiction in the party’s pleadings, the movant is deemed to be questioning the factual basis for the court’s subject matter jurisdiction. Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558-59 (9th Cir. 1987) (referencing Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1563, at 653-54 (1969)). In such a case, the allegations in the complaint are not controlling and only the uncontroverted facts are accepted as true. Id.; see also Power-One, Inc. v. United States, 83 F. Supp. 2d 1300, 1303 (Ct. Int’l Trade 1999) (quoting Cedars-Sinai Med. Cntr. v. Walters, 11 F. 3d 1573, 1583-84 (Fed. Cir. 1993)). All other facts underlying the controverted jurisdiction are in dispute and are subject to fact-finding by this Court. Power-One, Inc., 83 F. Supp. at 1308. In the present case, Defendant’s Rule 12(b)(1) motion to dismiss challenges the basis of AAI’s allegations of jurisdiction. Specifically, Customs is" }, { "docid": "3409977", "title": "", "text": "presumption of regularity prevails and no further discussion of this issue is warranted. . Defendant, United States, filed its motion to dismiss for lack of subject matter jurisdiction pursuant to U.S. CIT 12(b)(1). In deciding such a motion, the Court considers whether the moving party challenges the sufficiency of the pleadings or the factual basis underlying the pleadings. In the first instance, the Court must accept as true all facts alleged in the non-moving party’s pleadings. In the second instance, the Court accepts as true only those facts which are uncontroverted. All other facts are subject to fact finding by the Court. See Power-One Inc. v. United States, 83 F.Supp.2d 1300, 1303 n. 9 (CIT 1999) (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir.1993)). In this case, defendant challenges the actual existence of subject matter jurisdiction by asserting plaintiff, SSK Industries, Inc. (SSK), failed to comply with the statutory requirements for judicial review under 28 U.S.C. § 1581(a) (1994). Therefore, the Court will only accept uncon-troverted factual allegations as true for purposes of this motion. See Power-One, 83 F.Supp.2d at 1303 n. 9. The Court notes, there is no dispute between the parties that plaintiff did not file a protest with respect to Customs' reliquidation of the Cypres entries. All other facts underlying the controverted jurisdictional allegations in dispute are subject to fact-finding by this Court. . The Court recognizes it is not bound by the prior precedent of the United States Court of International Trade (CIT). See Algoma Steel Corp., Ltd. v. United States, 865 F.2d 240, 243 (Fed.Cir.1989) (\"among trial courts [e.g., CIT] it is unusual for one judge to be bound by the decision of another and, if it is to occur, such a rule should be stated somewhere. That is not done here\"). \"Nevertheless, absent unusual or exceptional circumstances, it would appear to be a better practice for judges of this court to follow the prior opinions of the court.” Krupp Stahl A.G. v. United States, 15 CIT 169, 173 (1991) (citing Fricker v. Town of Foster, 596 F.Supp. 1353, 1356 (D.R.I.1984))." }, { "docid": "17222724", "title": "", "text": "(D.D.C.2001) (denying leave to file a sur-reply where the plaintiff failed to demonstrate that the defendant’s reply presented any new matters). B. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1) Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Because “subjecUmatter jurisdiction is an ‘Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Rasul v. Bush, 215 F.Supp.2d 55, 61 (D.D.C.2002) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). The court may dismiss a complaint for lack of subject-matter jurisdiction only if “ ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 315 F.3d 338, 343 (D.C.Cir.2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Because subject-matter jurisdiction focuses on the court’s power to hear the claim, however, the court must give the plaintiffs factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir.2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Moreover, the" }, { "docid": "19044391", "title": "", "text": "Id. The Government filed a Reply on June 10, 2011. In reply, the Government continues to construe Plaintiffs claim as one for disability pay and argues that Plaintiff “impermissibly requests the Court to make a determination that he failed retention standards without an existing military disability evaluation.” Def.’s Reply at 2. The Government claims that the Army decided not to refer Plaintiff to a MEB, and that until a military board has made an actual disability determination, this Court does not have jurisdiction over the Army’s referral decision. Id. The Government also argues that jurisdiction is prema ture because Plaintiff has failed to exhaust his administrative remedies. Id. at 2-3. A. Standard of Review A plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (“[Ojnce the [trial] court’s subject matter jurisdiction [is] put in question, it [is] incumbent upon [the plaintiff] to come forward with evidence establishing the court’s jurisdiction”). When deciding a motion to dismiss pursuant to RCFC 12(b)(1), the Court is “obligated to assume all factual allegations to be true and to draw all reasonable inferences in [the] plaintiff’s favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); see Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.2004). If subject matter jurisdiction is challenged, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds, 846 F.2d at 747-48. When ruling on a motion to dismiss for lack of subject matter jurisdiction, a court may consider evidence and resolve factual disputes over the jurisdictional facts. Reynolds, 846 F.2d at 747; see also Rocovich v. United States, 933 F.2d 991, 994 (Fed.Cir.1991); Int’l Mgmt. Servs., Inc. v. United States, 80 Fed.Cl. 1, 2 n. 2 (2007). In their briefing on the Government’s motion to dismiss, both parties have filed exhibits to support their respective positions. The Court considers these exhibits in" }, { "docid": "20409269", "title": "", "text": "U.S.C. § 1515” and “[a]lternatively and to the extent that any claim herein is not covered by 28 U.S.C. § 1581(a) ... pursuant to 28 U.S.C. § 1581©.” Compl. ¶¶ 1-2. Plaintiffs complaint states three claims, each of which challenges the liquidation instructions Commerce transmitted to Customs. Id. ¶¶ 18-35. As relief, plaintiff seeks a judgment directing Customs to refund all duties deemed improperly assessed and collected, in addition to interest, on the subject entry. Id., Request for Judgment and Relief. On December 23, 2011, defendant United States filed its motion to dismiss and accompanying memorandum of law. Def.’s Mot.; Def.’s Mem. Plaintiff responded to defendant’s motion on July 25, 2012, Pl.’s Resp. to Def.’s Mot. to Dismiss, ECF No. 37, and defendant replied to plaintiffs response on August 23, 2012, Def.’s Reply Mem., ECF No. 40 (“Def.’s Reply”). II. Discussion The party invoking a court’s jurisdiction has the burden of demonstrating the requisite jurisdictional facts. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006). From those facts, the court must glean “the true nature of the action.” Norsk Hydro, 472 F.3d at 1355 (internal quotation marks and citation omitted). In deciding a Rule 12(b)(1) motion to dismiss that does not challenge the factual basis for the complainant’s allegations, the court assumes “all factual allegations to be true and draws all reasonable inferences in plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Where, as here, claims depend upon a waiver of sovereign immunity, a jurisdictional statute is to be strictly construed. United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995). A. The Court May Not Exercise Jurisdiction under 28 U.S.C. § 1581(a) Plaintiff asserts jurisdiction under 28 U.S.C. § 1581(a), under which the Court of International Trade has “exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under Section 515 of the Tariff Act of 1930.” Tariff Act of 1930 (“Tariff" } ]