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10-3138-cv Tuccio Dev. Inc. v. Miller UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 23rd day of May, two thousand eleven. PRESENT: ROGER J. MINER, JOSÉ A. CABRANES, CHESTER J. STRAUB, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x TUCCIO DEVELOPMENT, INC., DTGUERRA LLC, TUCCIO 7 LLC, and TUCCIO CUSTOM HOMES, LLC, Plaintiffs-Appellants, v. No. 10-3138-cv LAWRENCE MILLER, JAMES VULCANO, KATHERINE DANIEL, RONALD F. KLIMAS, TOWN OF BROOKFIELD, and BROOKFIELD INLAND WETLANDS COMMISSION, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFFS-APPELLANTS: JOHN R. WILLIAMS, New Haven, CT. 1 FOR DEFENDANTS-APPELLEES: JOHN F. CONWAY, Loughlin Fitzgerald, P.C., Wallingford, CT. Appeal from a judgment of the United States District Court for the District of Connecticut (Mark R. Kravtiz, Judge). UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. Plaintiffs-appellants (“plaintiffs”), a group of real estate development companies, appeal from a July 14, 2010 order of the District Court granting summary judgment in favor of defendants- appellees (“defendants”), various officials and municipal bodies of the Town of Brookfield, in three cases consolidated before the District Court. All three cases involved claims regarding defendants’ conduct in overseeing and regulating the construction of a residential subdivision known as Whispering Glen. Plaintiffs appeal the District Court’s judgment only with respect to the second of the three actions, and, more specifically, only with respect to their claim that defendants denied them permits and subjected them to onerous development requirements in retaliation for their assertion of their First Amendment rights (namely, plaintiffs’ filing of the first of their three legal actions). We assume the parties’ familiarity with the remaining facts and procedural history of the case. We review a district court’s order granting summary judgment de novo, construing the evidence in the light most favorable to the plaintiff and drawing all inferences in the plaintiff’s favor. See, e.g., Lumbermens Mut. Cas. Co. v. RGIS Inventory Specialists, LLC, 628 F.3d 46, 51 (2d Cir. 2010). Here, the District Court determined that, although the alleged retaliation occurred approximately two months after plaintiffs’ protected speech—thus demonstrating a temporal link between the protected activity and the alleged adverse action—plaintiffs offered no other evidence to support their argument that the permit denials and other development requirements were the result of a retaliatory motive, nor did they introduce evidence tending to show that defendants would not have taken those actions absent plaintiffs’ speech. See Cotarelo v. Village of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251 (2d Cir. 2006) (explaining that in order to survive a motion for summary judgment on a First Amendment retaliation claim, the plaintiff must present evidence that shows “that there was a causal connection between the protected speech and the adverse employment action”). Rather, the evidence before the Court reflected that defendants had acted in response to plaintiffs’ violations of various wetlands regulations and other land development regulations. Accordingly, the District Court concluded that no reasonable jury could find in plaintiffs’ favor and that defendants were therefore entitled to judgment as a matter of law. 2 After an independent review of the record, we agree with the District Court’s careful and well-reasoned analysis. Defendants offered reasonable, well-supported explanations for the land restrictions and penalties they imposed upon plaintiffs. Plaintiffs, on the other hand, offered nothing but unsubstantiated speculations regarding defendants’ motives. In sum, plaintiffs simply failed to raise a genuine issue of material fact for decision by a trier of fact. CONCLUSION We have considered all of plaintiffs’ arguments and find them to be without merit. We AFFIRM the judgment of the District Court substantially for the reasons stated in its Memorandum and Decision, Tuccio Development, Inc. v. Town of Brookfield, No. 08-cv-1610, 2010 WL 2794192 (D. Ct. July 14, 2010). FOR THE COURT, Catherine O’Hagan Wolfe, Clerk of Court 3
NO. 07-08-0451-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C SEPTEMBER 14, 2009 ______________________________ BRYAN S. HALL, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant v. XCEL ENERGY, INC., SOUTHWESTERN PUBLIC SERVICE COMPANY d/b/a XCEL ENERGY and DWAYNE MARCHBANKS, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellees _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 94392-A; HON. RICHARD DAMBOLD, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Â Â Â Â Â Â Â Â Â Â Bryan S. Hall (Hall) appealed from a summary judgment denying him relief against Xcel Energy, Inc. (Xcel). The suit involved the recovery of damages arising from a fall that occurred during Hallâs employment as a linesman. Hall sued not only Xcel but also Southwestern Public Service Co. (SPS) and Dwayne Marchbanks, his supervisor. Though summary judgment was granted in favor of each of the defendants, only that aspect of the judgment involving Xcelâs liability was appealed. We affirm the summary judgment. Â Â Â Â Â Â Â Â Â Â Â The record before us discloses that Xcel, SPS, and Marchbanks jointly moved for summary judgment. In their motion and under the heading âFactual Background and Basis of the Motion,â the movants stated that âDefendants bring this Motion . . . seeking dismissal of the Plaintiffâs case in its entirety on the basis that his claims are barred by the exclusivity provision of the Texas Workersâ Compensation Act . . . .â (Emphasis added). This passage was followed by another that read: â[i]n addition, Xcel Energy, Inc. moves for judgment on the basis that there is no evidence that it committed any act or omission connected in any way to Plaintiffâs accident.â To the foregoing, we add that the movants also described, in the motion, what they meant by the word âDefendantsâ; it encompassed all three of them (i.e. Xcel, SPS, and Marchbanks). Given this definition, we conclude that Xcel sought insulation from liability on at least two grounds. The first concerned the allegation that the Workerâs Compensation Act provided Hall with his exclusive remedy, while the second involved the matter of Xcel committing any act or omission upon which liability could be based. This is of import because the trial court did not state the basis upon which it awarded summary judgment to Xcel. Â Â Â Â Â Â Â Â Â Â Â Â Â Where multiple grounds for summary judgment are alleged and the trial court does not specify the particular one underlying its decision, the appellantâs burden is heightened. He must illustrate why none support the ruling. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). Thus, Hall was obligated to show why none of the grounds we noted above entitled Xcel to relief. However, the three appellate issues before us omit discussion about the Workerâs Compensation Act providing Hall his exclusive means of redress against Xcel. Thus, he not only failed to carry the burden imposed upon him by the Texas Supreme Court in Star-Telegram but also failed to prove that the trial court erred in granting Xcel the relief it sought. Â Â Â Â Â Â Â Â Â Â Accordingly, we affirm the trial courtâs summary judgment. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Brian Quinn Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice BR2"> John T. Boyd Senior Justice Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005). 2. We need not address whether a record made without knowledge that it might be used in litigation is inadmissible under the business records exception to the hearsay rule. Tex. R. App. P. 47.1. 3. Texas Rule of Evidence 803(1) says that a present sense impression is a statement describing an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. 4. There are two exceptions to that requirement but these exceptions are inapplicable to the present case. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).
175 F.2d 45 (1949) MEYER v. UNITED STATES. No. 199, Docket 21257. United States Court of Appeals Second Circuit. Argued March 10, 1949. Decided June 1, 1949. Henry Woog, New York City, for plaintiff-appellant. John F. X. McGohey, United States Attorney, New York City, John M. Cunneen, New York City, of counsel, for defendant-appellee. Before L. HAND, Chief Judge, and CHASE and FRANK, Circuit Judges. CHASE, Circuit Judge. The appellant sued to recover a part of the income taxes she paid in the years 1940 and 1941 and this appeal from an adverse judgment presents identical issues for each year. They are whether she was entitled to a deduction for the amounts she paid, under the following circumstances, as premiums on two policies of insurance on the life of her son. The appellant is the widow of Jonas Meyer who died in 1939 leaving a will in which she was the sole legatee. At the time of his death he was, and for some years had been, a co-partner in business with his, and the appellant's son, A. Edwin Meyer. The partnership articles provided, 46 among other options given the son, which could be exercised successively, that upon the death of Jonas Meyer the surviving partner might elect to continue the business himself and have the benefit of the use of the decedent's investment in it, not in excess of $85,000, during the time the son managed the business, though not for longer than ten years and with provisions for partial liquidation of this interest before the ten-year period expired. The decedent's estate was bound to allow the investment to remain under these conditions and the additional one that it should have no voice in the management of the business. It was entitled to be paid interest on the amount left in the business together with a fixed percentage of the net profits each year. The son was not to become a debtor of his father's estate and the interest thus left in the business was to be at risk and liable for claims of creditors. The son elected to continue the partnership business under the terms of the option above outlined. Not until 1945 was this asset of the estate transferred formally to the appellant. When he died, the father also held the absolute assignment of two policies of insurance on the life of his son in the total principal sum of $25,000. In 1940 these policies, which then had a substantial cash surrender value, were assigned by the executors to the appellant. She continued the insurance and paid the two premiums here involved. No deductions were taken for these premiums in the years they were paid on the theory that they were not incurred in carrying on a trade or business within Section 23(a) (1) of the Internal Revenue Code, 26 U.S.C.A. § 23(a) (1), as it then was. However, Section 23(a) of the Internal Revenue Code was amended by Section 121 of the Revenue Act of 1942 by the addition of what is now Section 23(a) (2), I. R. C. to provide for the deduction of non-trade or non-business expenses and the amendment was made sufficiently retroactive to include the years here involved. Mrs. Meyer then filed timely claims for refunds and after their disallowance brought this suit. The case was tried by the court upon a stipulation of facts supplemented by oral testimony of the appellant and her son. The facts so stipulated have already been summarized in so far as is presently necessary except that the decedent's interest in the business was over $80,000 when he died and that the appellant paid $83.39 more in 1940 and $72.65 more in 1941 than term insurance for the same amount would have cost. The appellant testified that she had had no business experience and acted solely on the advice of her son. The son testified that he was operating the former partnership business alone and that when the policies were assigned to his mother he told her to continue them " * * because I have been running the business, and if anything happened to me she would suffer a loss in winding up the business without my services * * " The trial judge failed to find that the appellant "continued the policies in effect for the purpose of protecting her limited and defeasible interest in the business." He was of the opinion that her payment of the premiums was at least as consistent with a purpose to protect her in the event of his death from the financial consequences of the loss of a son who might support her if necessary. The decision accordingly turned on a question of fact. Meyer v. United States, D.C., 80 F.Supp. 933. Perhaps the inference was justified despite the testimony of the appellant's witnesses and the fact that some protection against possible loss in the business investment was inherent in the situation. However, if no part of the deduction would be allowable had the finding been the opposite, the correctness of the finding of fact is immaterial as a matter of law. And so it seems desirable to decide whether as a matter of law any part of the payments which may be allocable to the protection of the business investment is deductible, assuming the premiums to have been paid in whole or in part for the protection of her investment. We think no part of either of those payments is allowable as a deduction for the following reasons: Section 23(a) (2), under which they are claimed, was added in 1942 to provide relief for individual taxpayers paying or incurring ordinary and necessary expenses "during the taxable year for the production or collection of income, 47 or for the management, conservation, or maintenance of property held for the production of income," similar to that which had been available, under Sec. 23(a) (1), which became 23(a) (1) (A), to those carrying on a trade or business. The two subdivisions are in pari materia. Trust of Bingham v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670, 163 A.L.R. 1175; Bowers v. Lumpkin, 4 Cir., 140 F.2d 927, 151 A.L.R. 1336. At the time subdivision (a) (2) was made a part of the statute, Sec. 24(a) (4) was in effect as it had been since 1924. It made non-deductible premiums paid by a taxpayer on any life insurance policy covering the life of "* * * any person financially interested in any trade or business carried on by the taxpayer, when the taxpayer is directly or indirectly a beneficiary under such policy." It thus carved out an exception to the deductions allowable for "ordinary and necessary" expenses paid or incurred by a taxpayer in trade or business. When subdivision (a) (2) was added to allow non-business taxpayers deductions described and limited in part by the words "ordinary and necessary" those words had already acquired a special meaning in (a) (1) because of their limitation by Sec. 24(a) (4). They should be presumed to have the same meaning they had thus acquired when used in subdivision (a) (2). "When the same word or phrase is used in the same section of an act more than once, and the meaning is clear as used in one place, it will be construed to have the same meaning in the next place." Lewellyn v. Harbison, 3 Cir., 31 F.2d 740, 742. If both (a) (1) and (a) (2) had been in Section 23 when Section 24(a) (4) was passed there would be force to the argument that the limitation in Section 24(a) (4) should be confined to Section 23(a) (1) because the language fits precisely only thus far. But when effect is given to the fact that Section 23(a) (2) was merely added while Section 24(a) (4) was left as it was, we think it plain enough that Congress intended to impose like restrictions upon the deduction of expenses paid or incurred for life insurance by individual taxpayers not in trade or business. See Davis v. Commissioner, 8 Cir., 151 F.2d 441, certiorari denied 327 U.S. 783, 66 S. Ct. 682, 90 L.Ed. 1010. One evident purpose of the limitation in respect to persons in trade or business was the avoidance of a double tax benefit resulting from the circumstance that the proceeds of such insurance paid upon the death of the insured are not taxable under Section 22(b) (3). This reason applies with equal force whenever the taxpayer is directly or indirectly a beneficiary under the policy when the insurance covers the life of any person comparable to an officer or employee or one financially interested in a business carried on by the taxpayer who is insured at the expense of the taxpayer to protect the taxpayer from loss, through the consequences flowing from his death, in respect to the management, conservation, or maintenance of property held for the production of income. Thus far we have assumed that the taxpayer was not in trade or business by virtue of the particular investment interest she took, under the provisions of her husband's will and the election of her son, in the business conducted by the latter. The opposite view would, however, lead to the same result. Although the son did not formally elect to have the business conducted as a partnership as he might have done under the terms of his partnership agreement with his father, the option he did select gave this taxpayer a relationship to the business which has no substantial legal difference from that of a limited partner as defined in Section 99 of the New York Partnership Law, McK.Consol.Laws, c. 39. In this sense she was carrying on a trade or business and the deduction was explicitly forbidden by Section 24(a) (4). Affirmed.
158 F.Supp. 344 (1957) Helen L. SMITH, Plaintiff, v. UNITED STATES of America, Defendant. Civ. A. No. 5240. United States District Court D. Colorado. December 30, 1957. 345 Yegge, Bates, Hall & Shulenburg, Mortimer Stone, Richard D. Hall, Denver, Colo., for plaintiff. Donald E. Kelley, U. S. Atty., for the Dist. of Colorado, Vernon V. Ketring, Asst. U. S. Atty., Denver, Colo., Charles K. Rice, Asst. Atty. Gen., James P. Garland, Anthony T. Dealey, Attys., Dept. of Justice, Washington, D. C., for defendant. KNOUS, Chief Judge. This is an action brought pursuant to 28 U.S.C.A. § 1346 (as amended by Chapter 648, § 1, 68 Stat. 589, July 30, 1954), for the refund of federal estate taxes paid by plaintiff for the estate of her deceased husband, Charles G. Smith. The case was tried before the Court upon an agreed stipulation of facts together with attached exhibits, and brief testimony taken in Court. Charles G. Smith, husband of plaintiff, died September 29, 1951, leaving a last will and testament dated July 30, 1948, which was admitted to probate November 26, 1951, by the County Court of the City and County of Denver, State of Colorado. Also on November 26, plaintiff Helen L. Smith and Carrol D. Sack were duly appointed co-executors and letters testamentary issued to that effect. In December, 1952, the co-executors filed a Federal Estate Tax Return (F-706) and paid an estate tax amounting to $23,448.12. Notified of a tax deficiency on testator's estate, plaintiff paid $45,000 on March 24, 1955, with her own funds. A statement of estate taxes due from said estate was issued April 20, 1955, crediting earlier payments and assessing an additional deficiency of $7,660.54 ($1,443.20 principal and $6,217.34 interest). This latter amount was paid by plaintiff May 2, 1955. A claim for refund filed by plaintiff on June 20, 1955 for $45,808.13 ($40,402.31 principal and $5,405.82 interest), and for interest on said amount, was later disallowed. As the basis for the tax deficiency imposed the Government classified all assets received by plaintiff through (1) Article VIII of testator's will within the "terminable interest" category of 26 U. S.C.A. § 812(e) (1) (B) and (D) I.R.C. 1939; and, therefore, not deductible as a marital deduction, and (2) placed certain "interest income" certificates described later in the opinion, within the "reversionary interest" category of 26 U.S.C.A. § 811(c) (1) (B); and, therefore, included in testator's gross estate. The case thus presents two distinct questions for resolution. The first controversy centers on Article VIII of the will, which reads as follows: "I devise and bequeath unto my wife, Helen L. Smith, all the rest, 346 residue and remainder of my estate of whatsoever character and wheresoever located, including all lapsed legacies and devises, to be her absolute property. "In the event that my said wife should predecease me or, surviving me, die before distribution to her of the bequest herein provided for her, then and in that event I direct that the bequest to her shall lapse and become a part of the rest, residue and remainder of my estate which I then devise and bequeath unto the children of my said wife named in paragraph V hereof, share and share alike. * * " Under section 812(e) (1) (B) and (D), supra, an interest passing by the will of the decedent to the surviving spouse may not be included in the marital deduction where the terms of the will provide that upon the occurrence of an event or contingency, which may occur six months after decedent's death, the interest passing to the surviving spouse will terminate or fail. The Government concedes that under the first paragraph of Article VIII of the will of Charles G. Smith, deceased, the plaintiff received a vested interest in the bequest therein made but contends that the contingency of her surviving until the distribution of such bequest contained in the second paragraph of Article VIII created the possibility of divestment which makes interest passing to her under Article VIII a "terminable interest" and, therefore, one not qualifying for the marital deduction under the above specified provisions of section 812, supra. The language of paragraph two so effecting is said to be: "In the event that my said wife should * * die before distribution to her of the bequest herein provided for her * * * then * * * the bequest to her shall lapse * * ." The plaintiff takes the position that the property passing under Article VIII of the will "vested absolutely" in her. Thus, the precise issue in dispute appears to be whether the property passing under Article VIII "vested absolutely" in the plaintiff or vested "subject to divestment in the plaintiff." Considering the contentions of the parties, the resolution of this issue depends upon whether the second paragraph of Article VIII is clearly and easily understood "free from any possible indefiniteness, uncertainty, or ambiguity," and "clear and unambiguous," as the Government argues; or whether, as the plaintiff insists, the provisions of the second paragraph, and particularly the language last above quoted, are so indefinite, uncertain, and ambiguous as to meaning, and in such hopeless conflict with the first paragraph of Article VIII of the will and as well, with Article VII thereof, as to render said second paragraph void and of no effect. The Court is of the opinion that the contention of the plaintiff must be upheld. The most persuasive decision in this field which has been called to the Court's attention is Kellar v. Kasper, D.C.S.D. 1956, 138 F.Supp. 738, 739, wherein it was held that the language "if living at the time of distribution of my estate," was ambiguous and void, and that the widow under the Kellar will took a vested estate which was indefeasible and not subject to divestment and that the widow was entitled to the full marital deduction. Consistently, in the case of Steele v. United States, 1956, 146 F.Supp. 316, the United States District Court for the District of Montana, also held that the marital deduction was allowable by reason of the vesting of the absolute title of the property as of the time of the testator's death. In that case the provision of the will in question read as follows: "In the event my said wife, Blanche C. Steele, should not be living at the time Decree in Distribution of my estate is made hereunder, then that portion of my estate which she would have received had she lived, I give, devise, and bequeath to my son and daughter." In reaching the conclusion expressed, the Montana Court followed the decisions in Kellar v. Kasper, supra. 347 The Government attempts to distinguish the decision in Kellar v. Kasper, supra, from the case at bar on two grounds: first, that the Kellar case involved the application of South Dakota law rather than Colorado law; and, second, that the "condition subsequent" was not as clearly set out in the Kellar case as in the case at bar. A study of the Kellar decision, supra, indicates that the Court therein concluded that the law of South Dakota definitely favored the rule of early vesting of title to property and that the Supreme Court of South Dakota had also shown a "definite tendency to favor a substitutional construction rather than a successive construction." In this respect the law of South Dakota seems to be very much like that of Colorado, since the Supreme Court of this state, in many decisions, has indicated a consistent policy to favor the early and indefeasible vesting of estates: Liebhardt v. Avison, 1951, 123 Colo. 338, 229 P.2d 933; Jones v. Pueblo Savings & Trust Co., 1939, 103 Colo. 455, 87 P.2d 2; Hignett v. Sherman, 1924, 75 Colo. 64, 224 P. 411, and Carmichael v. Cole, 1928, 83 Colo. 575, 267 P. 408. Thus, there appears to be no valid basis for this distinction. The second claimed distinction between the Kellar case and the one at bar is that the "condition subsequent" was not as clearly set up in the Kellar case. The will in the Kellar case states, "if living at the time of the distribution of my estate" as to a specific bequest of $100,000, and provided in the residuary bequest that "if living at the time of the distribution of my estate, I give, devise and bequeath to my wife" one-third of the residuary estate. The will in the case at bar provided that, "I devise and bequeath unto my wife, Helen L. Smith, all the rest, residue, and remainder of my estate * * * to be her absolute property," and in a separate but following paragraph then provided that if she died before distribution to her of the bequest, then the "bequest to her shall lapse and become a part of the rest, residue and remainder of my estate which I then devise and bequeath unto the children of my said wife * * " (with further provisions as to the distribution in the event of the death of one or more of the children). There is undoubtedly a difference between the words used in the two wills, but this difference seems to me to suggest that insofar as the contention of the Government is concerned the "condition subsequent" is more clearly set out in the Kellar will than in the Smith will and yet, notwithstanding in the Kellar case, as has been said, the Court firmly held that the widow took a vested estate which was indefeasible and not subject to divestment and that she was entitled to the full marital deductions. I also feel that the Government is in error in assuming that the distribution to the plaintiff under the Colorado statutes could not possibly occur until the passage of at least six months after issuance of letters of administration. Although it is true that claims may be filed against an estate for a full six months after issuance of letters of administration, under section 152-14-5, Colorado Revised Statutes, 1953, legacies may be ordered paid by the Court whenever it appears that there are sufficient assets to satisfy all legacies and all demands against the estate. Under section 152-14-8, Colorado Revised Statutes, 1953, executors or administrators may require a bond and security to be given to indemnify them against any debts which may afterward appear against the estate, and under such bonding provision legacies have on occasion been paid in estates under probate in Colorado courts before the expiration of the six months' period for presentation of claims. See Fenn v. Knauss, 1930, 87 Colo. 175, 285 P. 945. Thus, the same ambiguities and uncertainties as to the time of divestment discussed in the Kellar opinion, although therein based upon South Dakota law, have pertinency here. In this connection, the opinion in Kellar v. Kasper, stated: " * * When, under the wording of Mr. Kellar's will, would such claimed divestment take place? The 348 will reads `if living at the time of the distribution of my estate.' This could mean under South Dakota law that she survive any one of four different times and occasions in the operation of South Dakota wills-and-property law. It could [1] refer to the `distribution' effected by the law which occurs on the death of the testator. Again, there is nothing in South Dakota law that prevents an executor from paying a cash legacy immediately upon his appointment and qualification if he is certain that the estate is solvent and that in due course there will be sufficient funds after paying such legacy to pay the funeral expenses, expenses of administration and claims. Thus [2] `distribution' could mean the time when the legacy provided under Item 2 of the decedent's will was actually paid to Mrs. Kellar. (Note the last sentence of this item: `It is my will and I do so direct that this legacy shall be paid in full prior to the payment of any other legacy, bequest, or devise.') It could also mean and refer to the actual entry of a decree of `distribution', and here, again, under South Dakota law, this could be at the time of the entry of a partial decree of distribution, which is common, particularly in the case of large estates such as this one, or, where the estate is apt to remain open for any great length of time, or it could mean the actual entry of a final decree of `distribution', which would be when the estate had been completely administered and was ready to be closed." It also seems to the Court that the provisions of Article VII of the Smith will, wherein it was provided that "under no circumstances shall the share left my said wife be less than a full one-half (½) of all my estate," is in complete and hopeless conflict with the construction of the second paragraph of Article VIII of the will suggested by the Government. As viewed by the Court, nothing expressed in the opinion in the case of Burden v. Colorado National Bank, 116 Colo. 111, 179 P.2d 267, is inconsistent with the conclusions I have reached herein. Therein, the vested estate was subject to being divested upon the happening of a condition subsequent, i. e., the death of one of the children before the death of the daughter of the testator which certainly and positively fixed the date of divestment as the date of the death of any of the children of the daughter of the testator. Nor, because of the factual difference does the decision in Eggleston v. Dudley, D.C.W.D. of Pa.1957, 154 F. Supp. 178, also relied upon by the Government, have any decisive effect in the proceeding at bar. In view of the conclusions just reached with reference to the point above discussed, it is unnecessary to consider the question, raised by the plaintiff, as to whether the second paragraph of Article VIII of the will violates the rule against perpetuities. As has been mentioned, the second question to be decided is whether the Government properly included as a part of the gross estate of decedent, Charles G. Smith, the value of certain interest income certificates, less the value of the life estate of decedent's wife, Helen L. Smith. Each of the certificates provided that the interest accruing thereon would be paid to plaintiff, provided she be living, and otherwise to her husband, Charles G. Smith. There was also a provision in each stating that plaintiff could withdraw the full "amount upon which she is then entitled to receive interest payments" subject to a three-month notice requirement. The certificates also provided that if plaintiff failed to withdraw the principal amounts represented by the interest income certificates from the company, and she predeceased her husband, withdrawal rights and the right to the interest payments would revert to the husband, Charles G. Smith. The parties are 349 agreed that both of the interest income certificates were outstanding at the time of the death of Charles G. Smith. The Government contends that this factual situation brings the interest income certificates squarely within the terms of section 811(c) (1) (B), supra, and relies exclusively on the cases of Commissioner of Internal Revenue v. Nathan's Estate, 7 Cir., 1947, 159 F.2d 546, and Marks v. Higgins, 2 Cir., 1954, 213 F.2d 884, as upholding its position. Notwithstanding the reliance placed upon these cases by the Government, I believe in reality the decision in the Nathan case points out the fallacy in the Government's contention. In the opinion in that case, 159 F.2d at page 548, it was said: "Stated differently, was the period during which his contingent estate therein existed ascertainable without reference to his death or did the period of the contingent estate which decedent retained in the trust he created have a possible ending before his death?" Thus, in the Nathan case the only manner in which a contingent estate of the brother could have been terminated was by his death and there was no other possible ending before his death of the contingent estate owned by the brother. In the case at bar, however, the contingent estate of the grantor could have been terminated at any time before his death by the plaintiff by simply making a written request for the payment of the principal amount of the interest income certificates. If the plaintiff had had no right of withdrawal then the case at bar would be similar on its facts to those in the Nathan case. The case of Marks v. Higgins, supra, is grounded upon the Nathan decision and upon a generally similar factual situation. The presence herein of plaintiff's right of withdrawal, in the opinion of the Court, removes the interest income certificates in concern from the purview of either of the above mentioned decisions. Historically, starting with Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, practically all possible reversionary interests were included in the gross estate of decedent including those arising by operation of law. Cf. Goldstone v. United States, 325 U.S. 687, 65 S.Ct. 1323, 89 L.Ed. 1871; Estate of Spiegel v. Commissioner of Internal Revenue, 335 U.S. 701, 69 S.Ct. 301, 93 L.Ed. 330, and Commissioner of Internal Revenue v. Church, 1949, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288. The latter two cases cited resulted in the passage of section 7 of the Technical Changes Act, approved October 25, 1949, 63 Stat. 891, referring to section 811(c), 1939 I.R.C. (Cum.Bul. 1949-2, p. 278). This Technical Changes Act included reversionary interests in decedent's gross estates as to property transferred prior to October, 1949 (The transfers here were in 1942 and 1944) only if such interests were expressly retained by decedent, and possession or enjoyment by ultimate beneficiaries could be obtained only by surviving decedent. (For a more detailed historical development, see Costin v. Cripe, 7 Cir., 1956, 235 F.2d 162. Federal Regulation 81.17(c), passed by the Treasury Department, states: "A transfer of an interest in property made by the decedent prior to October 8, 1949 is not `intended to take effect in possession or enjoyment at or after his death' unless possession or enjoyment of the transferred property can, through ownership of such interest, be obtained only by surviving the decedent. * * * where possession or enjoyment of the transferred property can be obtained either by surviving the decedent or through the occurrence of some other event (as, for example, the exercise of a power), the transfer shall not be considered as intended to take effect in possession or enjoyment at or after the decedent's death unless, from a consideration of its terms and circumstances as a whole, the other event is deemed to be unreal, in which case such other event shall be disregarded." (26 C. *350 F.R., p. 23 Cumulative Pocket Supplement, Jan. 1, 1957); also Cumulative Bulletin 1951-1, § 81.17(c), pp. 78-79. (Emphasis supplied.) Under the terms of section 811 (c) (1) (C) and the regulation above, three conditions must exist before a property interest transferred during life prior to October 8, 1949, which takes effect at the death of decedent (other than a bona fide sale for an adequate consideration in money or money's worth) is included in decedent's gross estate. The interest is included if: 1) the decedent retains for himself or his estate, including a power of disposition, a reversionary interest in the transferred property by the express terms of the instrument of transfer (not by operation of law); 2) the value of the reversionary interest immediately before the death of the decedent exceeds five per cent. of the value of the entire transferred property; and 3) possession or enjoyment of the property, through ownership of the interest, can be obtained only by surviving the decedent, i. e., whether possession can be enjoyed by the beneficiary before the death of the grantor. Cf. Costin v. Cripe, supra, 235 F.2d 165, 166; also 60 Harvard Law Review, 989. In the case before this Court, the reversionary interest was expressly retained by decedent but possession or enjoyment by the ultimate beneficiary could be had not only by surviving decedent but also by plaintiff's exercise of the conferred power of termination. Therefore, the "income certificates" should not have been included in decedent's gross estate. In the opinion of the Court the findings of fact and conclusions of law expressed in this memorandum opinion are sufficient to meet the requirements of Rule 52(a) Fed.Rules Civ.Proc., 28 U. S.C.A., and the preparation and filing of formal findings of fact and conclusions of law may be dispensed with. In the agreed statement of facts, the parties stipulated that "in the event the Court shall find for the plaintiff in this action, either in whole or in part, the parties hereby agree to submit the question of the amount of the refund due the plaintiff to the Internal Revenue Service for recomputation. The parties further agree to request the Court to enter an order based upon the recomputation of the Internal Revenue Service after the said recomputation has been completed. In the event that the parties shall not be able to agree on the amount of the refund due after the recomputation has been completed, the matter will be submitted to the Court for determination." Counsel for the parties will proceed in accordance with the foregoing stipulation and in due course counsel for the plaintiff will prepare and serve judgment in accordance herewith. If stipulation as to the form thereof cannot be reached, its settlement may be submitted to the Court on notice.
U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 38885 ________________________ UNITED STATES Appellee v. Donald W. COX Senior Airman (E-4), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 22 February 2017 ________________________ Military Judge: Matthew P. Stoffel (sitting alone). Approved sentence: Confinement for one year and reduction to E-1. Sen- tence adjudged 25 June 2015 by GCM convened at Vandenberg Air Force Base, California. For Appellant: Major Lauren A. Shure, USAF (argued) and Colonel Jef- frey G. Palomino, USAF. For Appellee: Major G. Matt Osborn, USAF (argued); Colonel Katherine E. Oler, USAF; and Gerald R. Bruce, Esquire. Before DREW, MAYBERRY, and J. BROWN, Appellate Military Judges. Chief Judge DREW delivered the opinion of the Court, in which Senior Judge MAYBERRY and Senior Judge J. BROWN joined. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________ DREW, Chief Judge: A general court-martial composed of a military judge sitting alone con- victed Appellant, contrary to his plea, of one specification of involuntary man- slaughter by culpable negligence, in violation of Article 119, Uniform Code of United States v. Cox, No. ACM 38885 Military Justice (UCMJ), 10 U.S.C. § 919. 1 The adjudged and approved sen- tence was confinement for one year and a reduction to E-1. Appellant raises one assignment of error: whether his conviction for invol- untary manslaughter is legally and factually sufficient. 2 We find that it is and thus affirm the findings and sentence. I. BACKGROUND Appellant and another Airman drove their cars from the dorms on Vanden- berg Air Force Base, California, in the direction of an off-base grocery store. Both had two passengers each. At the time, Appellant was 21 years old and had very little experience driving a standard transmission car, like the one he had recently purchased and was driving that day. After leaving the base, Ap- pellant and the other Airman drove at excessive speeds on a divided four-lane road while passing other cars on the left and on the right. The cars entered a curvy, downhill stretch of road when Appellant lost control of his car. His car skidded diagonally across the road, hit a small curb, flew into and tumbled in the air, collided with a tree, and rolled over on the ground several times before finally coming to a rest in a cloud of dust and debris. The car sustained cata- strophic damage. Appellant and his rear-seat passenger were injured but sur- vived; his front-seat passenger died. II. DISCUSSION – LEGAL AND FACTUAL SUFFICIENCY Appellant challenges the legal and factual sufficiency of the evidence. Spe- cifically, he alleges that it does not prove that he acted with culpable negli- gence. As Appellant concedes that his driving that day constituted simple neg- ligence, this case presents a question as to what is necessary to constitute the higher standard of culpable negligence. We review issues of legal and factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for legal sufficiency is “whether, considering the evidence in the light most favorable to the prosecu- tion, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 1 The military judge also convicted Appellant of one specification of reckless driving, in violation of Article 111, UCMJ, 10 U.S.C. § 911, but immediately dismissed this finding as an unreasonable multiplication of charges. The military judge acquitted Ap- pellant of one specification of willfully engaging in a vehicle speed contest, in violation of Article 134, UCMJ, 10 U.S.C. § 934. 2We heard oral argument in this case on 12 January 2017 at The Ohio State University Moritz College of Law as part of this court’s Project Outreach. 2 United States v. Cox, No. ACM 38885 2002) (quoting United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001); see also United States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993). The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we are] convinced of [Appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] own independent de- termination as to whether the evidence constitutes proof of each required ele- ment beyond a reasonable doubt.” Washington, 57 M.J. at 399. Proof beyond reasonable doubt does not mean that the evidence must be free from conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our assessment of legal and factual sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993). The elements of involuntary manslaughter by culpable negligence are: (1) a death, (2) the death resulted from Appellant’s act or omission, (3) the killing was unlawful, and (4) Appellant’s act or omission constituted culpable negligence. Manual for Courts-Martial, United States (MCM) (2012 ed.), pt. IV ¶ 44.b.(2); United States v. Oxendine, 55 M.J. 323, 325 (C.A.A.F. 2001); United States v. McDuffie, 65 M.J. 631, 634 (A.F. Ct. Crim. App. 2007). As an initial matter, Appellant argues that the Government, in attempting to prove his actions amounted to culpable negligence, is—based on how they elected to charge the offense—limited only to proof that Appellant “exceeded the speed limit.” We disagree. In addition to exceeding the speed limit, the specification specifically alleged the act of causing his car to veer off the road and crash. Moreover, the specification alleges—and the Government must prove— that these specified acts constituted culpable negligence. To prove the culpably negligent nature of Appellant’s acts, the Government may, and often must, rely on the additional surrounding circumstances and the manner in which he com- mitted them. It is not necessary that all of the details that together establish that an act or omission rose to the level of culpable negligence be specifically alleged in a specification. See generally, United States v. Crafter, 64 M.J. 209 3 United States v. Cox, No. ACM 38885 (C.A.A.F. 2006) (addressing the test for the sufficiency of a specification). In- stead, the fact-finder at trial and this court on appeal may consider all of the evidence admitted during findings when determining whether Appellant’s ac- tions constituted culpable negligence. Appellant’s primary argument on appeal is that his actions amounted to nothing more than simple negligence and did not rise to the level of culpable negligence necessary to sustain a conviction of involuntary manslaughter. “Culpable negligence is a degree of carelessness greater than simple negli- gence.” MCM, pt. IV ¶ 44.c.(2)(a)(i). “Simple negligence is the absence of due care, that is an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care of the safety of others which a rea- sonably careful person would have exercised under the same or similar circum- stances.” Id. at ¶ 85.c.(2). [Culpable negligence] is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to oth- ers of that act or omission. Thus, the basis of a charge of invol- untary manslaughter may be a negligent act or omission which, when viewed in the light of human experience, might foreseeably result in the death of another, even though death would not nec- essarily be a natural and probable consequence of the act or omission. Id. at ¶ 44.c.(2)(a)(i). “We apply an objective test in determining whether the consequences of an act are foreseeable.” McDuffie, 65 M.J. at 635 (citing United States v. Riley, 58 M.J. 305, 311 (C.A.A.F. 2003); Oxendine, 55 M.J. at 326). The MCM defines recklessness, in the context of operating a vehicle, in a similar fashion under Article 111, UCMJ, 10 U.S.C. § 911, as a “culpable dis- regard of foreseeable consequences to others from the act or omission involved.” MCM, pt. IV, ¶ 35.c.(7). The MCM goes on to state that recklessness “cannot be established solely by reason of the happening of an injury . . . or . . . by proof alone of excessive speed or erratic operation” of a vehicle, but these facts may be relevant to the ultimate question of whether an appellant’s actions were of a “heedless nature which made it actually or imminently dangerous to the oc- cupants.” Id.; see also United States v. Bennitt, 72 M.J. 266, 269 (C.A.A.F. 2013) (noting that the 1917 MCM stated that “the driving of an automobile in slight excess of the speed limit . . . is not the kind of unlawful act” sufficient to sustain a conviction for involuntary manslaughter); United States v. Lawrence, 18 C.M.R. 855, 857 (A.F.C.M.R. 1955) (“[E]xceeding the speed limit, . . . standing alone, may show nothing more than simple negligence, which will not suffice for a conviction for reckless driving. Nor may we conclude from the mere oc- currence of the accident that it was precipitated by a culpably negligent or 4 United States v. Cox, No. ACM 38885 wanton operation of the vehicle.”) (citations omitted); United States v. Gamble, 40 C.M.R. 646, 648 (A.C.M.R. 1969) (“[S]imply exceeding the speed limit is not culpable negligence.”). Appellant, relying on the MCM’s guidance for reckless operation of a vehi- cle, argues that Appellant’s speed alone cannot establish culpable negligence. Because the definitions of “recklessness” and “culpable negligence” employ the same operative language, the MCM’s discussion of recklessness is instructive to our analysis of culpable negligence, but we disagree that it leads to a con- clusion that no amount of speed alone can ever establish culpable negligence. While exceeding the speed limit by a few miles per hour would not, by itself, establish culpable negligence, there are circumstances where sufficient excess speed alone could do so. When reviewing for legal sufficiency, we view the evidence in the light most favorable to the Government. The posted speed limit was 65 miles per hour. The Government’s expert testified that Appellant was driving over 100 miles per hour, perhaps up to 115 miles per hour, when he lost control of his car. One of Appellant’s passengers died as a result of his operation of his car and it is foreseeable that his unlawful act in driving over 100 miles per hour on a curvy, downhill public road would result in a fatal crash. When giving the evidence a fresh, impartial look, as we are required to do when assessing factual sufficiency, Appellant’s exact speed at the time of the crash becomes less clear. The Defense successfully challenged the Government expert’s conclusions and provided an alternative expert opinion. If the sole ev- idence before the military judge was the testimony of these expert witnesses, this case might be a closer call, but the evidence was much more than just a so-called “battle of the experts.” The Government expert’s opinion was corrob- orated by multiple lay witnesses, including the civilian occupants of two other cars on the road that day, by occupants of the fellow Airman’s car, by the sur- viving passenger of Appellant’s car, and even by Appellant’s own admissions. Appellant’s friend, who was his rear-seat passenger at the time of the crash, testified that he had ridden with Appellant more times than he could count and this was the fastest Appellant had ever driven. He also testified that 10- 30 seconds before the crash, Appellant was driving at what seemed to him as over 120 miles per hour. The two civilian drivers on the road put Appellant’s speed when he passed them as well above 80 miles per hour. Appellant himself admitted that he was driving over 80 miles per hour. The evidence of his ex- cessive speed alone might well have been sufficient to establish the foreseea- bility of a fatal crash, but the Government introduced additional evidence to prove the degree of Appellant’s negligence. 5 United States v. Cox, No. ACM 38885 The evidence established that Appellant was a relatively inexperienced driver, driving a modified manual transmission “muscle car,” and that his driv- ing behavior on the day in question involved high-speed passing, along with rapid acceleration and deceleration. Although the driving conditions were gen- erally good, with dry well-maintained pavement and ample daylight, the crash occurred in a portion of the road with two curves and a significant downhill grade. This evidence of the manner in which Appellant was driving and of the other surrounding circumstances, taken together with his excessive speed, es- tablishes that Appellant’s actions constituted culpable negligence. It is foreseeable that a crash will occur when an inexperienced driver en- gages in high-speed passing on both sides of other vehicles, on a stretch of road with curves and a notable downhill grade, all while driving at speeds at least in excess of 80 miles per hour. Moreover, death of an occupant is a foreseeable result of a crash at these speeds. After reviewing the testimony and photo- graphs of the crash and resulting destruction, we are convinced that it is not only foreseeable, but a natural and probable result of such a high speed crash for all three occupants to be killed. Appellant’s actions in driving the way he did culpably disregarded these foreseeable consequences and, thus, amounted to culpable negligence. Appellant next argues that the pre-crash modifications to his vehicle, par- ticularly the unexplained disconnection of the side airbags, were the actual cause of the death. He points to the testimony of the medical examiner that the deceased was partially ejected from the vehicle and died as a result of a com- pression fracture of his skull. Appellant argues that if the airbags had worked properly, Appellant might not have been partially ejected and would not have suffered the same type of injury to his skull. The modifications to the vehicle did not make a fatal crash at Appellant’s speed and manner of driving any less foreseeable. There is no evidence that the modifications to Appellant’s vehicle would have caused a reasonable person to expect it to handle so safely at high speeds on such a road that it would be unforeseeable for an inexperienced driver to crash and cause the death of a passenger. Additionally, while it is possible that a fully functioning airbag sys- tem could have intervened to save the decedent’s life, it was Appellant’s acts or omissions—not the lack of a side airbag—that caused his death. Thus, none of the modifications to Appellant’s vehicle made a fatal accident any less foresee- able nor do they make his disregard for these foreseeable results any less cul- pable. It was Appellant’s driving behavior, not the modifications to his vehicle, that caused his passenger’s death. We are convinced that a reasonable factfinder could have found—as the military judge did—all the essential elements of involuntary manslaughter be- yond a reasonable doubt. In addition, after weighing the evidence in the record 6 United States v. Cox, No. ACM 38885 of trial and making allowances for not personally observing the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt. III. CONCLUSION The approved findings and the sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Ar- ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a); 866(c). Accordingly, the ap- proved findings and the sentence are AFFIRMED. FOR THE COURT KURT J. BRUBAKER Clerk of the Court 7
371 F.Supp. 385 (1974) Oliver I. SABALA, Individually and on behalf of all others similarly situated v. WESTERN GILLETTE, INC., et al. Leonard M. RAMIREZ, Individually and on behalf of all others similarly situated v. WESTERN GILLETTE, INC., et al. Civ. A. Nos. 71-H-961, 71-H-1388. United States District Court, S. D. Texas. Houston Division. February 26, 1974. 386 387 Henry M. Rosenblum, Rosenthal, Didion & Rosenblum, Houston, Tex., for plaintiff Sabala. Sidney Ravkind, Mandell & Wright, Houston, Tex., for plaintiff Ramirez. L. G. Clinton, Jr., Fulbright, & Crooker, Houston, Tex., for defendant Western Gillette. L. N. D. Wells, Jr. and G. William Baab, Mullinax, Wells, Mauzy & Baab, Dallas, Tex., for defendant Internal Brotherhood and Southern Conf. James P. Wolf, Houston, Tex., for defendant Local 988. Memorandum and Opinion SINGLETON, District Judge. The trial of these cases involving the question of racial discrimination in employment practices was bifurcated and an order concerning jurisdiction and liability entered July 17, 1973, published at D.C., 362 F.Supp. 1142. The hearing on remedies, damages, and costs was held during October and November of 1973. 388 This supplemental Memorandum and Opinion will treat those subjects only. In the areas of remedies, damages, and costs, this Memorandum and Opinion has enlarged upon that of July 17, 1973, and in those areas will supersede the earlier opinion, when inconsistencies arise. REMEDY Having determined that Black and Mexican American employees of Western Gillette at its Houston terminal were discriminated against, both under the Civil Rights Act of 1964 and the Civil Rights Act of 1866, this court must now determine the remedy to be given these aggrieved plaintiffs. The question of remedy is a complex one because of the conflicting interests of plaintiffs and the various defendants as well as the many employees that will be affected by this court's order. This court must first deal with the question of the dual seniority system. This dual seniority system has locked in past discrimination against minority groups at the Houston terminal. But this court feels that it would be too drastic a remedy to completely merge the two seniority systems. Such a remedy would have various major shortcomings. It would prejudice recently hired or transferred road drivers including minority drivers because they could be bumped off their job by city drivers with lower seniority on the city roster. Further, city employees who during the early years of their employment have enjoyed a weekly guarantee and consequent higher pay as compared to similarly situated road drivers would be permitted to move to the road with a resulting freeze of lower seniority men in the least attractive low-paying road jobs. Top seniority city drivers who could not meet traffic skills and the driving skills required of them would be able to bump into the most attractive road positions. This court is persuaded that doing away with the dual seniority system entirely and having only one seniority roster would, therefore, create chaos and be detrimental to both minority and nonminority employees as well as the Company. In questions of this kind, the court must tread softly and must fashion a remedy which has the least destructive effects on both Company's and employees' desires while at the same time obviating the effects of past discrimination. This court intends by its order to afford the class members an opportunity to transfer to over-the-road positions heretofore denied them either by outright discrimination or by virtue of their having been "locked in" as a result of their collective bargaining agreement. Such relief must be broad enough to insure that the transferring discriminatee is able to keep his over-the-road position once he obtains it. Consequently, all transferring discriminatees will carry over with them their "rightful place" seniority date. "Rightful place" seniority represents the earliest opportunity following his qualification at which any discriminatee could have been hired as a road driver. Bing v. Roadway Express, Inc., et al., 5th Cir., 485 F.2d 441. The testimony at trial and the evidence established that of the qualified class members ten would have accepted over-the-road employment anywhere in the Southern Conference and thirteen of the qualified class members limited themselves to over-the-road employment at the Houston terminal. Further, there were over-the-road jobs available in the Southern Conference and in Houston to which the discriminatees would have acceded absent discrimination. Predicated on the foregoing, those discriminatees who would have accepted over-the-road employment anywhere in the Southern Conference (herein called "Southern Conference Discriminatees) have been assigned "rightful place" seniority dates predicated upon the job next available anywhere in the Southern Conference after the date upon which such Southern Conference Discriminatee was qualified to drive over-the-road. As to those discriminatees who limited themselves to over-the-road employment in Houston, Texas (hereinafter referred to 389 as "Houston Discriminatees"), they have been assigned "rightful place" seniority based upon the over-the-road job next available out of the Houston terminal after the date upon which such Houston Discriminatee became qualified to drive over-the-road. A roster of all discriminatees entitled to relief under this Order is herein set forth reflecting the name of the discriminatee, whether he be a Southern Conference Discriminatee (SC) or a Houston Discriminatee (H), and his "rightful place" seniority date. Such seniority dates shall be as of 11:59 p. m. on the date designated. "Rightful Place" Name Seniority Raymond O'Neal (SC) 5/31/56 George Williams (H) 1/18/60 Luther Thomas (H) 2/10/63 Alfonso Adams (SC) 6/18/64 Thomas Lindley (SC) 6/20/64 I. V. Phlegm (H) 8/27/64 Frank Fountain (H) 5/03/65 Essie McGregor (H) 5/10/65 Herman Carrier (H) 8/03/65 John Roberson (SC) 9/01/65 Roy Rodrigues (SC) 6/09/66 Henry McTear (SC) 10/11/66 Leonard Ramirez (SC) 5/02/68 Oliver Sabala (SC) 6/18/68 Lewis Norman (H) 4/27/69 Robert Clark (SC) 2/07/69 Charles O'Neil (SC) 2/11/69 Grover Williams (H) 5/01/70 Edgar Williams (H) 6/07/70 Deford Bailey (H) 7/20/71 Charles Lipscomb (H) 7/21/71 Ormogene Dosty (H) 9/01/71 Ellsworth Pinkins (H) _______ Two members of the class previously defined, Frank Golden and Manuel Ellison are eliminated from further consideration for remedial relief or back pay because (a) both responded to defendant Western Gillette's interrogatories that they would not accept road employment either in Houston or in the Southern Conference, and (b) neither is presently qualified to operate over-the-road equipment. Jose Fonseca is entitled to no relief in that he has quit his employment and is, therefore, no longer a member of the class as previously defined. This court finds that discriminatee Frank Fountain was disqualified for employment as an over-the-road driver from July 1, 1972, until June 1, 1973, and, therefore, that any back-pay award to the said Frank Fountain will not include an award for the eleven-month period described herein. This court finds that discriminatee Leonard Ramirez accepted over-the-road employment outside the Southern Conference in August 1972, and, therefore, any back-pay award as to the said Leonard Ramirez shall terminate as of August 1, 1972. The following changes are hereby ordered to be placed into effect: 1. Within thirty (30) days of this Order, the Company shall inform in writing all class discriminatees whose names appear in the list set forth above of their rights under this Order including the right to transfer to over-the-road driving jobs with "rightful place" seniority carry-over. A copy of such written notice shall be presented to counsel for the class for approval prior to dispatch. The notice shall contain the salient provisions hereinafter set forth in paragraphs 2 through 9. 2. As over-the-road job opportunities occur anywhere in the Southern Conference, such jobs shall be offered to the discriminatees whose names appear above in the order in which their names appear above. The Company is ordered to offer such persons the opportunity to transfer, with "rightful place" seniority dating to the date set forth opposite such men's names. As to Ellsworth Pinkins, his "rightful place" seniority date shall be the date that the first opening occurs in Houston, Texas. To the extent that the carry-over of "rightful place" seniority violates the National Master Freight Agreement rule on seniority, that rule is suspended because it violates the Civil Rights Act of 1964. Accordingly, the union defendants are enjoined to not oppose the effectuation of the transfers herein ordered. The practice of casuals "forcing on" as road drivers was referred to in this 390 court's earlier opinion, 362 F.Supp. 1142 at 1152. This practice should be discontinued because it is the opinion of this court that such practice can be utilized to effect a policy of discrimination relating to road-driver positions. However, such a practice is apparently a part of the present bargaining agreement and for that reason this court is reluctant to enjoin future use of such practice. The court suggests that in connection with future negotiations relating to new bargaining agreements the parties should meet this problem. In the meantime, whenever, in the Southern Conference, a person "forces on" the road board, a job vacancy shall be deemed to have occurred, and the Company shall immediately offer a position at such terminal to the next discriminatee entitled to a job opportunity. As to such transfers, union defendants are enjoined to not oppose their effectuation. 3. If any member of the Southern Conference Discriminatees rejects an opportunity to transfer to an over-the-road driver position at any terminal in the Southern Conference, he shall be deemed to have waived his right to transfer under this Order. If a Houston Discriminatee rejects a job offer at a terminal other than in Houston, his name shall be moved to the bottom of the roster set forth above and he will be afforded one more demonstrable opportunity to transfer to a road position in Houston, Texas, if and when an over-the-road vacancy occurs there. 4. Any discriminatee who transfers to an over-the-road driving job pursuant to this Order or who may have previously transferred (e. g., Leonard Ramirez) shall carry his "rightful place" seniority for all bidding purposes and his company seniority for fringe-benefit purposes. Each transferring discriminatee shall be slotted into the over-the-road seniority roster at the terminal to which he transfers based upon his "rightful place" seniority so that he may establish his "rightful place" on such roster. 5. Any discriminatee who transfers to an over-the-road position pursuant to this Order shall have a 180-day "retreat" period during which he shall have the right to return to his old job without loss of seniority if he does not wish to continue as an over-the-road driver. Such a return shall be considered a rejection within the meaning of paragraph 3; provided, however, that any discriminatee may waive, in writing, his "retreat" right and by so waiving that right forfeits the privilege of returning to his former job classification with his seniority intact. 6. After each discriminatee has had one demonstrable opportunity to accept or reject over-the-road employment at any terminal in the Southern Conference, and after each Houston Discriminatee, regardless of whether he rejects an opportunity other than at Houston, has had one demonstrable opportunity to accept or reject any over-the-road position at Houston, Texas, as per paragraph 3, above, the operative provisions of this Order shall terminate. However, the Company is admonished that it should seek henceforth to promote, on a nondiscriminatory basis, from within in the future. 7. Defendant International shall designate one International union official who shall be responsible for compliance with this Order. The International shall give counsel for plaintiff his name within thirty days of this Order. Such individual shall inform all affiliated local unions which represent Western Gillette, Inc., employees of the requirements of this Order and advise them of the necessity of compliance therewith. 8. As to all of the above, the Company is ordered to implement the necessary changes, and the union is enjoined from opposing such implementation. 9. This court shall retain jurisdiction for the purpose of resolving any controversy or problem which may arise in the implementation of this Order which cannot be satisfactorily resolved through normal grievance procedures. This court feels that the above remedy would be the most appropriate means to 391 destroy the effects of past discrimination on members of the class. The reasons that class members who were discriminated against may transfer to any terminal in the Southern Conference and not just the Houston terminal are that the evidence shows: (a) That "Modified System Seniority" affords over-the-road drivers the opportunity to "bump" from terminal to terminal in the Southern Conference when they are on layoff; (b) That at least ten men demonstrated to the satisfaction of the court that they were in the past and continue to be willing to accept over-the-road employment at any terminal in the Southern Conference; and (c) That the Company freely moves road drivers from location to location within the Southern Conference under "changes of operation." The full dual seniority system remains in effect for all city drivers whose names do not appear in the roster set forth above since this is what the employer and employees desire as evidenced by their actual practice and their collective bargaining agreements. DAMAGES AND COSTS Damages The plaintiffs also seek appropriate back pay representing the monies they would have earned had they been over-the-road drivers. This is a Rule 23(b)(2) class action which is used when the representatives of the class are seeking final injunctive relief or corresponding declaratory relief. However, it is also permissible in a Rule 23(b)(2) class action to seek and obtain back pay as part of the injunctive relief needed to obviate past discrimination. See Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969); Robinson v. Lorillord Corp., 444 F.2d 791 (4th Cir. 1971); Wright & Miller, Federal Practice and Procedure § 1775. It is clearly in the discretion of the court, once having found intentional unlawful employment practices, to order, as part of the affirmative action necessary to obviate such unlawful employment practices, that the party responsible for the unlawful employment practices pay to the class members back pay calculated to restore such class members to their rightful economic place. The discretionary authority vested in this court is found in 42 U.S.C. § 2000e-5(g), and supported by the Fifth Circuit: "The demand for back pay is not in the nature of a claim for damages, but rather is an integral part of the statutory equitable remedy, to be determined through the exercise of the court's discretion. . . ." Johnson v. Georgia Highway Express, Inc., supra. This court holds that members of the class previously described are entitled to back pay equaling the difference between the salary they did receive as city drivers and the salary they would have received as over-the-road drivers absent discrimination. The court finds that it is not necessary as a prerequisite of an award of back pay to a class plaintiff that such class plaintiff had to apply for a position and be denied a position for discriminatory reasons at a time a position was available. Accordingly, the court concludes, as a matter of law, that proof of discrimination against an individual member of the class is not a prerequisite to an award of back pay to that individual member of the class. See United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973). No back pay shall be computed for time after July 17, 1973, when this court by its prior Memorandum and Order ordered that the discriminatory practices be terminated. This court has found that a reasonably prudent over-the-road driver for Western Gillette, Inc., expends approximately 10% of his gross annual pay in connection with his employment as an over-the-road driver; consequently, as to any back pay determined to be due any discriminatee herein, such amount otherwise determined due such discriminatee shall be reduced by an amount equal to 10% of such amount. This 392 court has heard testimony from all discriminatees with regard to "interim earnings," and finds that the evidence adduced is not sufficiently definite to show that such "interim" or "moonlight" earnings were of the type that such discriminatees could not have earned had they been employed as over-the-road drivers. In connection with such earnings, counsel for the class has agreed to furnish counsel for the Company all discriminatees' earnings data for the years 1968 through 1973, and counsel for the class is ordered to do so as a condition precedent to the payment of any back pay to any discriminatee. The court will retain jurisdiction to resolve disputes concerning the matters of "interim" or "moonlight" earnings insofar as such earnings might operate to reduce the amounts of back pay due each discriminatee. Finally, no discriminatee shall be paid any monies due him under this Order until such discriminatee shall have accepted an over-the-road job and remained in such job beyond the 180-day "retreat" period unless such discriminatee waives such "retreat" period in writing in which case he shall be paid at the time of such waiver; provided, however, if all discriminatees are not afforded one demonstrable opportunity at over-the-road employment within a period of one year of the date of this Order, the court will reconvene counsel for the purposes of ascertaining the reasons therefor and ordering such further affirmative action, if any, which may be necessary to implement this court's Order. In this second half of the bifurcated trial, substantial expert testimony and supporting data was offered by both counsel for plaintiffs and counsel for the Company with regard to the matter of determining the difference in what a discriminatee earned as a city driver and what he would have earned as an over-the-road driver. The matter of computation of back pay for each member of a class of discriminatees, at trial, is a question of first impression. The variety of formulae by which individual back pay due this class of discriminatees can be computed is bewildering; the record of the second part of this bifurcated trial is replete with such formulae. Having carefully considered all of such formulae as were advanced, this court adopts the formula of Dr. Richard A. Tapia which is contained in court's Exhibit 2. By that formula, a reasonably prudent (i. e., representative) road driver and a reasonably prudent (i. e., representative) city driver, each having characteristics representative of their peers with regard to seniority, earnings and work habits were selected. Thereafter, the average monthly earnings of the representative road and city driver for the period embracing June 3, 1968, through July 17, 1973, were compared, and a ratio representing such comparison was derived. In this case it was demonstrated that a representative over-the-road driver earns, on a monthly basis, 1.56 times that which a representative city driver earns. The court while recognizing that the method of damage calculation determined by it contains a statistical disparity and does not measure what the plaintiffs would have earned had they been given the first available opportunity to transfer to a line position, nevertheless, holds that the 1.56 factor is based upon the average road driver earnings as against the average city driver earnings based upon the seniority date of the city drivers, and that such factor is to be applied to all plaintiffs. Consequently, in order to find the back pay due a particular discriminatee, such discriminatee's earnings for the period June 3, 1968, through July 17, 1973, or from his "rightful place" seniority date through July 17, 1973, whichever is lesser, must first be determined; that figure should then be multiplied by 1.56; the result of such multiplication represents the gross earnings he would have made as a road driver. The resulting figure must, of course, be reduced by (a) the expenses incurred in connection with over-the road employment which are not incurred in connection with city driver employment (in this case, 10%), and (b) any 393 "interim earnings" of a particular discriminatee which he would not have been able to have earned had he been an over-the-road driver, and (c) the actual amount earned as a city driver. Based on the conditions of accepting over-the-road employment as set forth above, the defendant Company is ordered to pay to the discriminatees the amounts set forth in the court's Final Judgment. This court holds that the back pay set forth in the Final Judgment will be paid to the qualifying members of the class by the defendant Company. The Company maintains that it is not liable for the dual seniority system. However, the Company in its collective bargaining agreements with the unions agreed to accept the principle of seniority under the different contracts as a basis for assignments of work for its employees. At the very least, the Company knew of the dual seniority system and accepted it. Further and more importantly, the testimony of witnesses and the statistical evidence show that the Company discriminated against members of the class who desired to become road drivers. The testimony and the statistical evidence demonstrates that there was never a Black or Mexican-American hired as an over-the-road driver in Houston, Texas. The Company may not evade its burden of having to pay to rectify this discrimination by saying the seniority system is the unions' responsibility alone. Costs The question of attorneys' fees and other costs involves an allocation of responsibility for this discrimination among the various defendants. The 1964 Civil Rights Act provides that the court, in its discretion, may allow the prevailing party reasonable attorneys' fees as part of the costs. 42 U.S.C.A. §§ 2000a-3(b). The Fifth Circuit has held that in a § 1981 action the court may also award attorneys' fees. Jinks v. Mays, 464 F.2d 1223 (5th Cir. 1972). All defendants argue that they have no responsibility for the discrimination. As noted earlier, this court holds that the primary responsibility for the discrimination against the class is the Company's since the Company is the one that practiced overt discrimination in transferring which resulted in locked-in discrimination of the dual seniority system. Both the International and the Southern Conference, on the one hand, and the Local, on the other hand, argue that because of the collective bargaining structure they have nothing to do with any discrimination. The unions' attempts to wash their hands of the discrimination must fail. As far as the Local is concerned, it acquiesced in the discrimination practiced against its members. Further, the Local gave a written power of attorney to a bargaining committee representing the Southern Conference of Teamsters (the National Teamster Union is divided into various regional conferences, one of which is the Southern Conference) which negotiated the contract. The bargaining agreement authorizing this seniority system was signed by the Local and also negotiated by an agent of the union, and, therefore, the Local is responsible for it. International and Southern Conference argue that any discrimination is a matter between the Company and the Local. These unions argue that neither International nor Southern Conference was a bargaining agent of the Local. To understand this contention reference must be made to the manner in which collective bargaining arguments are reached. The basic nationwide contract between the Teamsters Union and employers throughout the country is the National Master Freight Agreement. This is negotiated by committees representing local unions and various employers. Incorporated into the National Master Freight Agreements are various supplemental agreements entered into between negotiating committees for the Teamsters locals in the conference in question and committees for the employers in the conference. These supplemental agreements affecting the class in this suit are *394 the Over-the-road Supplemental Agreement and the Local Freight Forwarding Supplemental Agreement for the Southern Conference and they are signed by the local union. Even though in theory perhaps neither the Southern Conference nor International are part of the agreements, in practice the negotiating committee is made up of International and Southern Conference officials at least in part responsible for its outcome. As this court said earlier, all union organizations violated their duty under § 1981 to protect the class from discrimination. Therefore, this court awards the costs of this action to the plaintiffs; such costs are to be taxed against the defendants and allocated as follows: one-half (½) to be paid by the Company, the other one-half (½) to be paid equally by the three union organizations. Included in such costs, but not limited thereto, are the following: (a) Expert witness fee for Dr. Richard A. Tapia, who testified on behalf of the plaintiffs and who prepared certain studies at the court's request $ 3,000.00 (b) Attorneys' fees to Mandell & Wright (Sidney Ravkind), attorneys for Leonard A. Ramirez .............................. $12,500.00 (c) Attorneys' fees for Rosenthal & Rosenblum (Messrs Henry Rosenblum, Alvin Rosenthal and Ronald Cohen), attorneys for the Class ................... $35,000.00 (d) Such other and further costs which are ordinarily taxable in litigation of this nature. As to (a), (b), and (c), this court finds that the amounts set forth therein are reasonable under the circumstances in light of the time spent in preparation and litigation of the cause, the complexity of such preparation and litigation, and the novelty of the issues. Plaintiffs have also sued defendant unions alleging a breach of duty of fair representation under 29 U.S.C. § 151. The landmark case on the duty of fair representation is Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). This case held that a bargaining representative of employees has a duty "to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them." Steele v. Louisville & Nashville R. R. Co., supra at 202, 203, 65 S.Ct. at 232, 89 L.Ed. at 183. The evidence on this point was rather meager almost entirely what this court denotes as "remote circumstantial." For that reason, this court reluctantly holds that there has been no breach of fair representation by any of the union defendants. The unions have acquiesced in a seniority system that perpetuates past discrimination but that does not give rise to a breach of their duty of fair representation. To breach this duty there must be evidence that the unions acted unfairly or unimpartially or not in good faith or with hostile discrimination. Richardson v. Texas & New Orleans R. R. Co., 242 F. 2d 230 (5th Cir. 1957). To sum up, plaintiff Sabala may represent all Mexican-Americans and Blacks currently employed by Western Gillette during the pendency of this action as city drivers in Houston, Texas. Plaintiff Sabala and the class he represents and plaintiff Ramirez have proved discrimination against the defendant Employer under § 1981 and § 2000e and against the defendant Local, Southern Conference, and International under § 1981. Both Company and unions are to some extent responsible for this discrimination although the Company has the greater burden of responsibility. Plaintiffs have not shown a breach of the duty of fair representation by any of the defendant unions. This court enjoins all defendants from continuing the discriminatory practices discussed herein and orders the parties to implement the affirmative action relief ordered by this Opinion. Except as included in this supplemental Opinion, each party's requested proposed findings of fact and conclusions of law have been, and the same are hereby, denied and this supplemental Memorandum and Opinion along with this court's prior Memorandum and Order dated July 17, 1973, as reported in 362 F.Supp. 1142, will constitute the entirety of this court's findings of fact and conclusions of law relating to all aspects of this case.
404 F.2d 1337 131 U.S.App.D.C. 360 DISTRICT OF COLUMBIAv.Mark GRIMES, Defendant. No. 21555. United States Court of Appeals District of Columbia Circuit. Argued Feb. 13, 1968.Decided March 28, 1968. Mr. David P. Sutton, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for the District of Columbia. Mr. Lawrence H. Schwartz, Washington, D.C., with whom Mr. David C. Niblack, Washington, D.C. (both appointed by the District of Columbia Court of General Sessions) was on the brief for defendant. Messrs. David G. Bress, U.S. Atty., Frank Q. Nebeker and Lawrence Lippe, Asst. U.S. Attys., filed a brief on behalf of the United States of America as amicus curiae. Before McGOWAN, TAMM and ROBINSON, Circuit Judges. TAMM, Circuit Judge: 1 Despite our concise holding in District of Columbia v. Moody, 113 U.S.App.D.C. 67, 304 F.2d 943 (1962) we are again presented herein with the question whether the prosecution of charges of disorderly conduct in violation of D.C.CODE 22-1107 (1967)1 is within the jurisdiction of the Corporation Counsel or of the United States Attorney. The statute involved is set forth in its entirety in the appendix. 2 By an information filed in the Criminal Division of the Court of General Sessions, appellee, designated 'Defendant in the pleadings before us,' was charged with disorderly conduct in violation of D.C.CODE 22-1107 (1967). In the course of preliminary proceedings in that court, defense counsel challenged the authority of the corporation counsel to prosecute the offense, and the Court of General Sessions, acting pursuant to D.C.CODE 23-102 (1967), (also quoted in the appendix hereto) certified the question on this court. Basically, the thrust of appellee's position is that since the punishment now provided for violation of the disorderly conduct statute is a fine of 'not more than $250 or imprisonment of not more than ninety days, or both,' the prosecutive authority is established by D.C.CODE 23-101 (1967) (see appendix) as being exclusively in the United States Attorney. The Corporation Counsel attempts to establish its prosecutive authority by a chronological presentation of the development of the disorderly conduct statute from its origin to its present content. Briefly stated, this summation begins with Congress enacting in 1892 'an act for the preservation of public peace and the protection of property in the District of Columbia.' 27 Stat. 322 (1892). This act, which embraced enumerated acts of disorderly conduct, provided specifically that all prosecutions for violations thereof 'shall be conducted in the name of and for the benefit of the District of Columbia * * ,' and provided a fine of $25.00 for violation of any of its criminal provisions. In ensuing years, soem changes not pertinent hereto were made in the statute, but in 1953 Congress rewrote various provisions of the 1892 act including a revision of the disorderly conduct provisions to the form in which they now appear in 22-1107. In addition Congress eliminated the $25.00 fine provided in the 1892 act and substituted therefor $250.00 or imprisonment for not more than ninety days, or both.' 67 Stat. 97 (1953). The prosecutive jurisdiction, originating as section 18 of the 1892 act now appears as D.C.CODE 22-109 (1967) (see appendix) and still provides for prosecution 'in the name of and for the benefit of the District of Columbia * .' 3 The opposing contentions then bring into head-on confrontation the conflicting statutory provisions for '(prosecution) in the name of and for the benefit of the District of Columbia' id est 22-109, and the restriction upon prosecutive jurisdiction of the District of Columbia acting through its legal office, the Corporation Counsel, by 23-101, which limits this jurisdiction to cases where the maximum punishment is a 'fine only, or imprisonment not exceeding one year.'We note that historically the Corporation Counsel has conducted the prosecution of the disorderly conduct cases for many years, not only prior to the 1953 amendments of the statute, but subsequently down to the present time. We find no solution to our problem in the District of Columbia's suggestion that because of its deep antecedents in these prosecutions the status quo should remain undisturbed. We do not believe that the rule of statutory construction that 'long-continued contemporaneous and practiced interpretation of a statute by the executive officers charged with its administration and enforcement, the courts, and the public constitutes an invaluable aid in determining the meaning of a doubtful statute,' 2 SUTHERLAND, STATUTORY CONSTRUCTION 5103, p. 512 (Horack's 3d ed. 1943), is a standard applicable to any situation in which a statutory provision would appear to positively prohibit the challenged conduct. 4 While it is, of course, true that in our opinion in United States v. Strothers, 97 U.S.App.D.C. 63, 228 F.2d 34 (1955) we discussed the significance of the distinction between amendment of a statute and an outright repeal of a statute, we do not find that distinction as being dispositive of the present question. We are herein confronted with a statute which contains within its own phraseology no specific identification of the agency which will prosecute the violations therein enumerated. This omission appears to have substantial significance when it is noted that some forty other statutory provisions of the District of Columbia Code which provide for both fine and imprisonment, either contain specific authorization in each situation for the Corporation Counsel to carry on the prosecutions enumerated, or provide that the prosecution shall be carried on 'in the name of the District of Columbia.' A listing of some of these D.C.CODE sections are made a part of the appendix to this opinion. The conclusion is to us inescapable that had Congress intended to place prosecutive jurisdiction for 22-1107 violations in the Corporation Counsel, Congress would have specifically so provided. We hold, therefore, that 23-101, by restricting the Corporation Counsel's authority to cases in which the punishment is fine or imprisonment, requires that prosecutions for 22-1107 violations be carried on by the United States Attorney. 5 We are not unmindful of the additional burden placed upon the United States Attorney by this decision, nor are we ignoring the substantial reduction in the resulting work load of the Corporation Counsel's Office. Our holdings on this question have been consistent since ww decided District of Columbia v. Simpson, supra, in 1913. It would certainly seem that under the impetus of United States v. Strothers, supra, in 1955, District of Columbia v. Moody, supra, in 1962 and Smith v. District of Columbia, supra, in 1967, the Corporation Counsel's Office would, if it had any serious interest in this recurring problem, have initiated the necessary action in Congress to effectuate a simple revision in the phraseology of 23-101 which would completely clarify this matter. 6 The case is remanded to the Court of General Sessions for whatever further action, consistent with this opinion, is necessary. 7 Remanded. APPENDIX D.C.CODE 22-109 (1967), provides: 8 All prosecutions for violations of section 22-1121 or any of the provisions of any of the laws or ordinances provided for by this Act shall be conducted in the name of and for the benefit of the District of Columbia, and in the same manner as provided by law for the prosecution of offenses against the laws and ordinances of the said District. Any person convicted of any violation of section 22-1121 or any of the provisions of this Act, and who shall fail to pay the fine or penalty imposed, or to give security where the same is required, shall be committed to the workhouse of the District of Columbia for a term not exceeding six months for each and every offense. The second sentence of this section shall not apply with respect to any violation of section 22-1112(b). (July 29, 1892, 27 Stat. 325, ch. 320, 18; June 29, 1953, 67 Stat. 93, 98, ch. 159, 202(a)(2), 211(b).) D.C.CODE 22-1107 (1967), provides: 9 It shall not be lawful for any person or persons within the District of Columbia to congregate and assemble in any street, avenue, alley, road, or highway, or in or around any public building or inclosure, or any park or reservation, or at the entrance of any private building or inclosure, and engage in loud and boisterous talking or other disorderly conduct, or to insult or make rude or obscene gestures or comments or observations on persons passing by, or in their hearing, or to crowd, obstruct, or incommode, the free use of any such street, avenue, alley, road, highway, or any of the foot pavements thereof, or the free entrance into any public or private building or inclosure; it shall not be lawful for any person or persons to curse, swear, or make use of any profane language or indecent or obscene words, or engage in any disorderly conduct in any street, avenue, alley, road, highway, public park or inclosure, public building, church, or assembly room, or in any other public place, or in any place wherefrom the same may be heard in any street, avenue, alley, road, highway, public park or inclosure, or other building, or in any premises other than those where the offense was committed, under a penalty of not more than $250 or imprisonment for not more than ninety days, or both for each and every such offense. (July 29, 1892, 27 Stat. 323, ch. 320, 6; July 8, 1898, 30 Stat. 723, ch. 638; June 29, 1953, 67 Stat. 97, ch. 159, 210.) D.C.CODE 23-101 (1967), provides: 10 The attorney for the District of Columbia shall be known as the corporation counsel. 11 Prosecutions for violations of all police or municipal ordinances or regulations and for violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia and by the corporation counsel or his assistants. All other criminal prosecutions shall be conducted in the name of the United States and by the attorney or the United States for the District of Columbia or his assistant. (Mar. 3, 1901, 31 Stat. 1340, ch. 854, 932; June 30, 1902, 32 Stat. 537, ch. 1329.) D.C.CODE 23-102 (1967), provides: 12 If in any case any question shall arise as to whether under section 23-101 the prosecution should be conducted by the corporation counsel or by the attorney of the United States for the District of Columbia, the presiding justice shall forthwith, either of his own motion or upon suggestion of the corporation counsel or the attorney of the United States, certify the case to the United States Court of Appeals for the District of Columbia, which court shall hear and determine the question in a summary way. In every such case the defendant or defendants shall have the right to be heard in the United States Court of Appeals for the District of Columbia. The decision of such court shall be final. (Mar. 3, 1901, 31 Stat. 1341, ch. 854, 933; June 30, 1902, 32 Stat. 537, ch. 1329; June 7, 1934, 48 Stat. 926, ch. 426.) 13 Following is a selection of the many statutory provisions authorizing the District of Columbia Corporation Counsel to prosecute crimes for which both a fine and imprisonment are provided. Like D.C.CODE 22-109 (1967), some of these provisions state that prosecution shall be in the name of the District of Columbia but do not specifically name the Corporation Counsel. 14 ------------------------------------------------------------------ D.C.Code Violation of Statute Maximum Section Relating to Penalty 1967 ed. Statute-At-Large ---------------------------------------------------------------------- Cemeteries and 200/90 days 27-127 31 Stat. 1298 (1901) Crematories Dead Human Bodies 100/1 yr. 2-209 32 Stat. 175 (1902) General Licensing 300/90 days 47-2347 32 Stat. 628 (1902) Insanitary Buildings 100/90 days 5-631 34 Stat. 161 (1906) 68 Stat. 889 (1963) Pharmacies 200/6 mos. 2-616 34 Stat. 182 (1906) Veterinarians 200/6 mos. 2-812 34 Stat. 873 (1907) Hospitals 200/30 days 32-305 35 Stat. 65 (1908) Money Lender 200/30 days 26-607 37 Stat. 659 (1913) Public Auction 200/60 days 47-2207 39 Stat. 847 (1916) Industrial Safety 300/90 days 36-442 40 Stat. 961 (1918) 55 Stat. 738 (1941) Minimum Wages 10,000/6 mos. 36-414 40 Stat. 963 (1918) Weights and 500/6 mos. 10-134 41 Stat. 1225 (1921) Measures Optometrists 1000/1 yr. 2-502 43 Stat. 177 (1924) 79 Stat. 1308 (1965) Dairy Production 500/30 days 33-319 43 Stat. 1008 (1925) Renovation and Sale 500/6 mos. 6-605 44 Stat. 839 (1926) of Mattresses Practice of 200/1 yr. 2-1030 45 Stat. 953 (1928) Architecture Books & Records 300/90 days 35-204 47 Stat. 158 (1932) of Insurance Corp. Alcoholic 1000/1 yr. 25-132 48 Stat. 336 (1934) Beverages Boilers 100/90 days 1-714 49 Stat. 1917 (1936) Motor Vehicles 300/30 days 40-104 50 Stat. 682 (1937) Registration Real Estate and 500/6 mos. 45-1416 50 Stat. 797 (1937) Business Brokers Cosmetology 300/6 mos. 2-1327 52 Stat. 619 (1938) Communicable 300/90 days 6-119h 53 Stat. 1408 (1939) Disease 60 Stat. 919 (1946) Making of False 500/1 yr. 40-714 54 Stat. 739 (1940) Statement Concerning Automobile liens Vagrancy 300/90 days 22-3305 55 Stat. 810 (1941) Black-outs in 300/90 days 6-1010 55 Stat. 860 (1941) War Time Child Placing 300/90 days 32-788 58 Stat. 195 (1944) Agency Without License Boxing 1000/1 yr. 2-1224 58 Stat. 826 (1944) Secrecy Breach 1000/6 mos. 47-1564c(e) 61 Stat. 342 (1947) by District Employees General D.C. 5000/1 yr. 47-1589e 61 Stat. 357 (1947) Taxes Sales Taxes 500/6 mos. 47-2627 63 Stat. 124 (1949) Cigarette Tax 1000/1 yr. 47-2810 63 Stat. 139 (1949) Charitable 500/60 days 2-2112 71 Stat. 281 (1957) Solicitations Fish and Game 300/90 days 22-1631 72 Stat. 815 (1958) Practical Nurses 300/90 days 2-437 74 Stat. 807 (1960) Physical 500/1 yr. 2-467 75 Stat. 582 (1961) Therapists Public Welfare 500/90 days 3-212 76 Stat. 917 (1962) Disclosure of 100/90 days 11-1586(d) 77 Stat. 501 (1963) Juvenile Court Records Public 500/1 yr. 2-926 80 Stat. 792 (1966) Accountants 15 SPOTTSWOOD W. ROBINSON, III, Circuit Judge (concurring): 16 Judge McGowan sets forth persuasively the historical facts translatable into an appeal for maintenance of the prosecutorial status quo in Section 22-1107 disorderly conduct cases. For me, however, the considerations delineated in Judge Tamm's opinion, in which I concur, provide the edge in the resolution of the close question which was certified to us. The District cannot, in my view, assume the litigatory helm in such cases without colliding head-on with our holdings in Strothers1 and Moody,2 which I am unable to comfortably distinguish, and impinging on the judicial philosophy underlying them. If, as an alternative measure, those decisions are to be overruled, not only must that step be taken by the court en banc,3 but also for sound supporting reasons. 17 Unfolded before us is a situation strikingly similar in its material aspects to those presented in Strothers and Moody. Section 22-1107, except as to its current penalty, is the product of an 1898 amendment4 fusing Sections 5 and 6 of an 1892 statute,5 self-described as 'an act for the preservation of public peace and the protection of property within the District of Columbia.' The act contained nineteen sections, the first seventeen of which defined offenses in no instance made punishable by imprisonment. The eighteenth section, now Section 22-109 of the Code, specified that all prosecutions under the act should be conducted by and for the District. Like the problem here, those addressed in Strothers and Moody were generated by subsequent increases in the maximum punishment, from a fine alone to both fine and imprisonment, for activities originally outlawed by the 1892 act. 18 Section 7 of the act, forbidding solicitation for prostitution, had been expressly repealed when it was displaced by a 1935 statute,6 now Section 22-2701 of the Code, which was involved in Strothers. On the other hand, Moody treated Section 1 of the act, now Section 22-3112 of the Code, proscribing the destruction of private property, which has been amended in 1906,7 inter alia, to alter the penalty. Each case was inaugurated by the District and conducted by its Corporation Counsel, apparently because Section 22-109 had been left untouched. We held, however, that in consequence of Section 23-101,8 enacted in 1901,9 each charge must be prosecuted, if at all, by the United States Attorney. These decisions lead me to the same conclusion here. 19 By Section 23-101,10 Congress supplied the standard by which, absent a different specification, the District's jurisdiction over violations of local criminal laws is to be ascertained. Congress said that the District may engage in such litigation 'where the maximum punishment is a fine only, or imprisonment not exceeding one year,' and that 'all other criminal prosecutions shall be conducted in the name of the United States and by the attorney of the United States for the District of Columbia or his assistants.'11 This, we have held, means that the District may proceed where either a fine or a term of imprisonment is authorized, but not where both may be inflicted.12 And our decisions have consistently effectuated the proposition that where Congress has not spoken antithetically, the prescribed maximum punishment at the time of prosecution determines who shall prosecute.13 20 Congress has frequently made express provision for prosecution by the District even where the penalty for a particular offense embraces both a fine and incarceration,14 thereby creating exceptions to the rule enunciated in Section 23-101.15 But Strothers and Moody reflect a sound judicial policy dictating adherence to that rule where a claimed exemption is not fairly evident.16 When Congress takes pains to articulate ever so clearly a general jurisdictional definition, the justification for judicial deviation therefrom must embrace importantly a deep-seated confidence that the legislative purpose will not be frustrated. I do not feel at liberty to disregard the plain mandate of Section 23-101 on the basis of indications of a contrary congressional aim which, as our dissenting colleague at the outset aptly characterizes them, are 'admittedly murky.' Nor can I believe that Congress, which has been scrupulous in explicating where the prosecutorial authority in misdemeanor cases resides, and in simplifying and expediting controversies in that regard,17 intended that the result should in any case abide a formidable and time-consuming judicial investigation into a ramified legislative history. 21 This court has always endeavored to honor the congressional will, and our decisions reflect the best we can offer. Judges are able to do only so much when legislative intent is obscure, and perhaps all too frequently that much might not be enough. When it is not, the matter is ripe for the chambers of Congress, from whence the final answer must come. To insure for the people of this community the prosecutorial procedures which Congress contemplated they should have, that is where I think this general problem should go. McGOWAN, Circuit Judge (dissenting): 22 The question certified to us by the Court of General Sessions depends for its answer only upon an ascertainment of Congressional intent. That intent is admittedly murky, and has been so for several years because of an apparently inattentive and casual approach to legislative drafting. The resulting problem has, however, been known to exist for quite a long time now to the persons most immediately affected, that is to say, the Corporation Counsel and the United States Attorney. I, therefore, share my colleagues' impatience with the failure to seek clarification from the only source which can give a completely authoritative answer, namely, the Congress. As the courts struggle to keep abreast of the rising tide of essential litigation, it is increasingly important that wholly unnecessary burdens of this kind not be imposed upon them. 23 The fact that I dissent on the merits does not in any way lessen my feeling that this case, and its predecessors, ought not to be here. It emphasizes, if anything, the cloudy aspect of the problem and the peculiar appropriateness of a Congressional resolution of it. 24 Since the question is one of legislative intent, the way to approach this case is first to try to discover which government agency Congress probably intended to bring disorderly conduct prosecutions, and only then to consider whether prior decisions of this court support or obstruct the conclusion reached. Legislative Intent 25 Section 22-1107 was originally enacted as Sections 5 and 61 of the 1892 'act for the preservation of the public peace and the protection of property within the District of Columbia,' and its violations then carried the penalty of a $25 fine. Section 18 of that 1892 Act, now Section 22-109, specifically provided-- and still specifically provides-- that 26 all prosecutions for violations of * * any of the provisions of any of the laws or ordinances provided for by this Act (of 1892) shall be conducted in the name of and for the benefit of the District of Columbia * * . 27 In 1901, at the time of the general codification of D.C. law, Congress enacted Section 23-101, a general catchall provision to determine, in the absence of a more specific direction to the contrary elsewhere in the Code, whether prosecutions were to be brought in the name of the United States or in the name of the District of Columbia. Section 23-101 provided, and still provides, that all prosecutions for which the maximum penalty could exceed a fine only or imprisonment not exceeding one year should be conducted in the name of the United States. Since violations of Section 22-1107 at that time still carried a maximum penalty of a $25 fine only, there was no conflict between Sections 22-109 and 23-101; and disorderly conduct prosecutions continued to be brought in the name of the District of Columbia. 28 In the District of Columbia Law Enforcement Act of 1953, Congress undertook a fairly extensive overhaul of the criminal provisions of the D.C. Code. One outcome of this revision was the enactment of 22 D.C.Code 1121, which created new categories of disorderly conduct not already proscribed by Section 22-1107 or other sections of the Code. Congress' reasons for expanding the crime of disorderly conduct was explained in the House Report: 29 This subsection (22-1121) is based on a provision of the New York Penal Law which has proved extremely useful in curbing disorderly conduct in that State. There is no similarly comprehensive provision of District law relating to disorderly conduct. Those parts of the New York provision which are satisfactorily covered by existing District law (i.e., section 22-1107) are not included in the new section (22-1121). 30 H.R.Rep. No. 514, 83d Cong., 1st Sess. 8-9 (1953) (bracketed material inserted). It is clear from this legislative history that Congress viewed the old Section 22-1107 and the new Section 22-1121 as parts of a comprehensive whole patterned after New York law. Further evidence that the two sections were so regarded is found not only in the similarity of the conduct made unlawful in each but also in the equivalence of the penalties for violations of each. The new Section 22-1121 created maximum penalties of a $250 fine or 90 days in jail, or both; the old Section 22-1107 was amended to carry identical penalties. 31 This increase in the penalty for disorderly conduct might have created an uncertainty as to which prosecutorial authority-- the U.S. Attorney or the Corporation Counsel-- should bring such actions. This potential ambiguity lay in the following circumstances: (1) Because a defendant could now receive both a fine and a jail sentence, Section 23-101, if it applied, would require the U.S. Attorney to conduct the prosecutions; (2) the more particular Section 22-109 apparently still applied to prosecutions under Section 22-1107, even though the penalty had been increased, because Section 22-1107 was originally enacted as part of the 1892 Act; but (3) since the new Section 22-1121 was not a part of the 1892 Act, Section 22-109 would apparently not bring its enforcement within the jurisdiction of the Corporation Counsel, and therefore, under the catchall Section 23-101, it would be enforced by the U.S. Attorney. Congress was, however, perhaps aware of this possible predicament, and particularly of the absurd possibility that one part of its comprehensive scheme (Section 22-1107) would be carried out in the name of the District of Columbia while another part (Section 22-1121) would be carried out in the name of the United States. Thus, Congress in 1953 amended the more specific provision-- Section 22-109-- arguably to ensure that violations of both disorderly conduct sections would be prosecuted by the same authority, the Corporation Counsel. The italicized phrase, which would effect such an intent, was inserted in section 22-109: 32 All prosecutions for violations of section 22-1121 or any of the provisions of any of the laws or ordinances provided for by this Act (of 1892) shall be conducted in the name of and for the benefit of the District of Columbia * . 33 The reason why Congress did not refer by name to Section 22-1107 as it did to Section 22-1121 could be because it assumed that since Section 22-1107, unlike Section 22-1121, had been originally enacted as a provision of the 1892 Act, it was already explicitly covered by Section 22-109. This conclusion is again borne out by the legislative history. The same House Report, immediately after discussing the purpose of adding Section 22-1121 to Section 22-1107 to create a comprehensive program identical to that of New York, stated: 34 This subsection amends section 18 of the act of July 29, 1892 (D.C.Code, sec. 22-109), so as to provide that violations of the new section (22-1121) shall be prosecuted in the name of the District. * * 35 H.R.Rep. No. 514, 83d Cong., 1st Sess. 9 (1953). 36 In the light of this legislative history-- and of all common sense considerations relating to the uniform enforcement of disorderly conduct statutes in the District-- it is not an inescapable necessity that we read the statutes as requiring that Sections 22-1107 and 22-1121 be enforced by different agencies. On the contrary, the legislative history and the structure of the Code suggest that violations of both sections were intended to be prosecuted by the Corporation Counsel. The Government has so read the Code, and all disorderly conduct prosecutions under both sections have for the 15 years since 1953 been brought in the name of the District of Columbia. The Cases 37 The only question remaining is whether this panel can achieve the result intended by Congress consistently with the four prior decisions of this Court discussed in the briefs, or whether parts of those decisions must be overruled to the extent that they are inconsistent with the instant decisions. My conclusion is that, while at least one of the prior decisions was perhaps incorrect, they can all be distinguished; and that an en banc court need not be convened to overrule any of them. 38 The most recent discussion of the problem occurred in the opinion in Smith v. District of Columbia, 128 U.S.App.D.C. 275, 387 F.2d 233 (1967). The holding in that case was that the appellants' disorderly conduct convictions must be set aside because the information had failed to apprise the appellants 'with certainty the offense with which they were charged and the possible penalty threatened.' In the course of discussing the network of possibly applicable statutes, Judge Prettyman did say that 'so far as we are advised, there is no specific exemption of (Section 22-1107) from the requirements of 23-101, such as was provided in respect to Section 1121.' This opinion did not say, however, much less hold, that Section 22-1107 prosecutions had to be brought by the United States. Moreover, the 'so far as we are advised' language indicates that the panel did not itself undertake to investigate the question and was not aided by the parties. That observation, then, is far from disabling us from holding that the Corporation Counsel is the proper prosecutorial authority. 39 The earliest decision bearing on this question was that of the Supreme Court of the District of Columbia in the District of Columbia v. Simpson, 40 AppD.C. 498 (1913). The defendant was being prosecuted for refilling used milk bottles in violation of what is now 48 D.C. Code 303. Since that offense carried a possible maximum penalty of both fine and imprisonment, the court held that, under the catchall Section 23-101, the prosecution must be conducted in the name of the United States. That holding, however, is simply not relevant to the issue in the present case. There was never any question that the answer in Simpson was controlled by Section 23-101, because there was no other more particular statute to the contrary. Section 22-109 did not apply because the provision being enforced had not been a part of the 1892 Act; indeed, it was enacted in 1901, as part of the same act which created Section 23-101, at the time of the general codification of D.C. law. 40 The next pertinent decision by this court was United States v. Strothers, 97 U.S.App.D.C. 63, 228 F.2d 34 (1955). The certified question was whether the U.S. Attorney or the Corporation Counsel had the authority to prosecute violators of what is now 22 D.C. Code 2701 (solicitation for prostitution). The court held that Section 23-101 applied and that, since the maximum punishment could be both a fine and a jail sentence, the U.S. Attorney had jurisdiction over the offense. The court rejected the argument that Section 22-109 controlled. Although the offense had first been created by a provision of the 1892 Act, that provision had specifically been repealed in 1935 when Congress enacted the new 'Act for the suppression of prostitution in the District of Columbia' and increased the penalty to permit both fine and punishment. The court emphasized that, while the original provision had been enforced by the Corporation Counsel, after its repeal in 1935 prosecutions under the new prostitution statute had uniformly been conducted by the U.S. Attorney. That the court viewed the difference between repeal and amendment as the critical issue is evident from the following excerpt from the opinion: 41 If, therefore, Section 7 (of the 1892 Act) was in fact repealed, as we hold it was, as distinguished from amended, it is obvious that Section 23-101, D.C. Code, 1951, applies. 42 228 F.2d at 37. Since Section 22-107 has never been repealed since its passage as part of the 1892 Act and was only amended in 1953 to increase the penalty, the Strothers decision affirmatively supports the conclusion that it is to be enforced by the Corporation Counsel. 43 District of Columbia v. Moody, 113 U.S.App.D.C. 67, 304 F.2d 943 (1962), presents the most difficulty. There the court, in a brief, single-paragraph, per curiam opinion, held that by reason of Section 23-101, prosecutions under 22 D.C. Code 3112 (destroying property) must be brought in the name of the United States because the offense is punishable by both fine and imprisonment. The opinion cited Strothers as authority for its holding. The decision seems, however, to be incompatible with the rationale of Strothers. Section 22-3112 was originally enacted as part of the 1892 Act and was amended-- but not repealed-- in 1906 to increase the penalty; therefore, Section 22-109 was by its terms applicable, and the prosecution should have been by the Corporation Counsel in the name of the District of Columbia. The Moody result is arguably defensible on the basis of the uncertainty about legislative intent under the circumstances of that case: Sections 23-101 and 22-109 were in apparent conflict and there was no sure guide as to which Congress intended to control. In the instant case, on the other hand, the situation is not that of a bare confrontation between Sections 23-101 and 22-109. There is, rather, a ponderable indication in the legislative history, and in the structure of the statutes, that Congress wanted all disorderly conduct prosecutions to be in the name of the District of Columbia. Therefore, without the necessity of expressing any opinion about the rightness or wrongness of the result in Moody, the court can now hold that at least here Congress has provided some indication that Section 22-109, not Section 23-101, applies to prosecutions under Section 22-1107. 1 We have discussed the development of various sections of the District of Columbia Code relating to the prosecutive jurisdiction of both the Corporation Counsel's Office and the United States Attorney's Office in several cases. See District of Columbia v. Simpson, 40 App.D.C. 498 (1913); United States v. Strothers, 97 U.S.App.D.C. 63. 228 F.2d 34 (1955); Smith v. District of Columbia, 128 U.S.App.D.C. 275, 387 F.2d 233 (1967) 1 United States v. Strothers, 97 U.S.App.D.C. 63, 228 F.2d 34 (1955) 2 District of Columbia v. Moody, 113 U.S.App.D.C. 67, 304 F.2d 943 (1962) 3 Insurance Agents' Int'l Union v. NLRB, 104 U.S.App.D.C. 218, 260 F.2d 736 (1958), aff'd 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960); Polisnik v. United States, 104 U.S.App.D.C. 136, 137, 259 F.2d 951, 952 (1958); Mallory v. United States, 104 U.S.App.D.C. 71, 259 F.2d 801 (1958); Davis v. Peerless Ins. Co., 103 U.S.App.D.C. 125, 127, 255 F.2d 534, 536 (1958); Thompson v. Thompson, 100 U.S.App.D.C. 285, 286, 244 F.2d 374, 375 (1957). See also District of Columbia v. Washington Post Co., 98 U.S.App.D.C. 304, 235 F.2d 531, cert. denied 352 U.S. 912, 77 S.Ct. 147, 1 L.Ed.2d 118 (1956) 4 30 Stat. 723 (1898) 5 27 Stat. 322 (1892) 6 49 Stat. 651 (1935) 7 34 Stat. 126 (1906) 8 Quoted infra note 10 9 31 Stat. 1340 (1901) 10 'Prosecutions for violations of all police or municipal ordinances or regulations and for violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia and by the corporation counsel or his assistants. All other criminal prosecutions shall be conducted in the name of the United States and by the attorney of the United States for the District of Columbia or his assistants.' D.C.Code 23-101 (1967 ed.) 11 Ibid 12 District of Columbia v. Simpson, 40 App.D.C. 498 (1913). See also the cases cited infra note 13 13 District of Columbia v. Moody, supra note 2; United States v. Strothers, supra note 1; District of Columbia v. Simpson, supra note 12. See also Smith v. District of Columbia, No. 20,279 (D.C. Cir. July 27, 1967) at 4; Tate v. United States, 123 U.S.App.D.C. 261, 265 n. 4, 359 F.2d 245, 249 n. 4 (1966); Nation v. District of Columbia, 34 App.D.C. 453, 457-458, 26 L.R.A.,N.S., 996 (1910); Morton v. Welch, 162 F.2d 840, 841-842 (4th Cir.), cert. denied 332 U.S. 779, 68 S.Ct. 44, 92 L.Ed. 363 (1947) 14 See the appendix to Judge Tamm's opinion, supra 15 See Shelton v. United States, 83 U.S.App.D.C. 32, 33-35, 165 F.2d 241, 242-244 (1947); Persham v. United States, 70 App.D.C. 116, 104 F.2d 249 (1939); District of Columbia v. Moyer, 68 App.D.C. 98, 93 F.2d 527 (1937) 16 The thrust of Section 22-109, providing for prosecution by the District of violations of the 1892 act, was blunted by the repeal in Strothers and the amendment in Moody, logically posing the question whether as an indicium of legislative intent, it overrode, alone or with other factors present, the positive expression in Section 23-101. Both cases in effect responded to that question in the negative. That the distinction between repeal and amendment was not regarded as significant gains strength from the fact that two members of the Strothers panel, including Judge Bastian who authored the Strothers opinion, were members of the Moody panel 17 D.C.Code 23-102 (1967 ed.) provides a simple expedient for speedy resolution of questions arising in misdemeanor litigation as to whether the prosecution should be conducted by the Corporation Counsel or by the United States Attorney. The trial judge may immediately certify the question to us. We are required to 'hear and determine the question in a summary way' and our decision is final 1 Sections 5 and 6 were merged in 1898
437 S.W.2d 613 (1969) O. M. FRANKLIN SERUM COMPANY, Appellant, v. C. A. HOOVER & SON et al., Appellees. No. 7883. Court of Civil Appeals of Texas, Amarillo. January 13, 1969. Rehearing Denied February 10, 1969. 615 Underwood, Wilson, Sutton, Heare & Berry, R. A. Wilson, Amarillo, of counsel, for appellant. Lemon, Close & Atkinson, Otis C. Shearer, Perryton, of counsel, for appellees. DENTON, Chief Justice. Our former opinion is withdrawn and the following opinion is submitted in lieu thereof. This is a products liability case. C. A. Hoover and Dale Hoover, a partnership, d/b/a C. A. Hoover & Son, brought this suit against O. M. Franklin Serum Company, alleging the death and injury to calves as a result of the use of an antibiotic consisting of penicillin and dihydrostreptomycin sold under the trade name of "Franklin Pen-Strep". Based on a jury verdict the trial court entered judgment for the plaintiffs. On October 14, 1964, Dale Hoover injected 28 of their registered Hereford calves with a serum. 25 were injected with Pen-Strep, a serum distributed by the defendant, while the other three were injected with another serum obtained from a local veterinarian, called neomycin. Mr. Hoover testified it took some approximately 30 minutes to complete the inoculation of all the calves. By the time the last calves had been injected, five of the calves which had been injected with Pen-Strep "were already dead, and the other calves were reacting". A total of nine calves died within a few minutes after the injections were completed. Another calf died about two weeks later and the eleventh calf died some two months later. The remaining fourteen were adversely affected and recovered slowly. The three calves which were injected with neomycin obtained from the veterinarian were not affected. Plaintiffs alleged the serum distributed by Franklin was not fit for its intended use and this unfitness was the producing cause of the death of the eleven calves and injuries to the remaining fourteen. No acts of negligence were alleged. Recovery is sought only on the theory of breach of warranty. This cause was previously before the court on plea of privilege. O. M. Franklin Serum Company v. C. A. Hoover & Son (Tex.Civ.App.), 410 S.W.2d 272 (Error Ref.N.R.E.). With Per Curiam opinion, 418 S.W.2d 482. The prior decision extended the doctrine of strict liability of sellers of defective products which cause physical harm to persons, as held in McKisson v. Sales Affiliates, Inc (Sup.Crt.), 416 S.W.2d 787 to defective products which cause damage to property of the ultimate consumer. The jury found that the serum distributed by Franklin was unfit for its intended use; that the use of the serum was the producing cause of the death and harm suffered by the calves; and that harm to the cattle was not the result of an abreaction. The defendant contends first there is no evidence and insufficient evidence of the unfitness of the serum for its intended use; and there is no evidence and insufficient evidence that any harm to the calves was not the result of an abreaction. The Hoovers were ranchers in the Perryton, Texas area. They normally raise from 225-260 Hereford calves each year. 616 These calves would always be injected for blackleg and malignant edema. It was also their common practice, at weaning time or times of stress, to give the calves an injection of Pen-Strep as treatment for an oncoming respiratory ailment. Dale Hoover, a holder of a Bachelor's and Master's degree in Animal Husbandry, performed the injections here in question. Appellees had trucked these 28 calves to their home ranch from a distant ranch after they had been weaned shortly before. On the morning in question. Dale Hoover noticed three of the calves showed signs of respiratory disorder, primarily some discharge from the nose. He informed Dr. Hardy, a local veterinarian, of this condition, who prescribed an injection of neomycin for these three. Upon Hoover's further inquiry, Dr. Hardy agreed it "would do no harm" to inject the remaining 25 calves with Franklin's Pen-Strep "at the same time". Hoover obtained the serum for the three calves from the veterinarian and purchased two bottles containing 200 ccs. each of Pen-Strep from a Perryton drugstore on the morning of October 14. He began the 30 minute operation shortly after purchasing the serum. Immediately upon completion of the injections, the reaction of the calves was noticed by Hoover, as previously stated. By the time Hoover followed the last calf into the lot, five calves were already dead and the other 20 calves were reacting. Some of the calves were laying down in apparent pain, some were having muscle convulsions, some frothing or salivation at the mouth, and some showed signs of swelling around their eyes and nose. Some of the calves that were not down "showed excessive salivation and were doing lots of groaning and carrying on, making it readily visible they were in pain". Hoover called Dr. Hardy at once, who came within ten minutes and began treating the calves. Four more of the calves died shortly after Dr. Hardy arrived. Dr. Hardy described the calves as "the sickest bunch of cattle I have seen". Two of the remaining fourteen which did not die but were adversely affected did not respond to care and feed and were sold later by the pound as grade cattle. The remaining twelve were sold the following spring as breeding bulls. Dr. Hardy performed an autopsy on one of the bulls and found "the lungs were quite edematous, containing large amounts of fluid, also fluid around the trachea, which is the windpipe * * * also emphysema of the lungs. This is actually there in the lungs, but in the part of the lungs in the tissue where it is not supposed to be. This is brought about by labored respiration, fast respiration." Dr. Hardy, from the history he was able to obtain and upon what he saw, made a tentative diagnosis of anaphylactic shock. No other diagnosis was offered. Dr. Hardy explained he could have no final diagnosis unless he had something pathognomonic, which he has defined as "clear cut" or "that it has got to be this, nothing else" or "I have a laboratory report confirming this tentative diagnosis". In describing anaphylactic shock, Dr. Hardy testified: "I believe the classical definition of anaphylactic shock would be something like a hypersensitivity resulting from previous exposure to a foreign protein, usually by injection". All veterinarians testifying agreed anaphylactic shock could also be caused by contact with a fungus through the skin, through injection, or eating, usually some plant that might synthetize animals. However, Dr. Hardy testified anaphylactic shock "is not a well understood thing". An examination of the defendant's expert witnesses seemed to confirm this conclusion. As stated, the rule of strict liability of sellers of defective products which cause damage to the property of the ultimate consumer by virtue of an implied warranty of fitness has been pleaded and is applicable in the instant case. This is the law of this case; O. M. Franklin Serum Company v. C. A. Hoover & Son (Sup.Crt.), 418 S. W.2d 482. The primary question on this appeal on the merits is causation, that is, whether the Pen-Strep distributed by Franklin caused the damage to the Hoover calves as a result of its being unfit for its intended use. 617 There is no direct evidence the serum used in inoculating the 25 Hoover calves was defective. However, any element, including a proximate cause may be established by circumstantial as well as by direct evidence. Bock v. Fellman Dry Goods Company (Tex.Comm.App.), 212 S. W. 635 (Opinion adopted). Republic National Life Insurance Company v. Bullard (Tex.Civ.App.), 399 S.W.2d 376 (Ref. n. r. e.). This rule does not require the quality of absolute certainty, nor is the plaintiff required to exclude every other possibility. It is required that the circumstances point to the ultimate fact sought to be proved with that degree of certainty as to make the conclusion reasonably probable. McMillen Feeds, Inc. of Texas v. Harlow (Tex.Civ.App.), 405 S.W.2d 123 (Ref. n.r.e.). In addition to the neomycin purchased from Dr. Hardy, and which was used to inject the three calves which were not affected, Hoover purchased two bottles of Pen-Strep, each containing 200 ccs. The supply in the first bottle was all used and the last "one or two" of the 25 calves were inoculated from the second bottle. Hoover used the same syringe throughout the operation, and through an experiment conducted by Dr. Hardy during the trial, it was shown there would have been a "carryover" of the serum from the first bottle in the syringe which could have contaminated the serum removed from the second bottle. It is undisputed all 25 calves injected with Pen-Strep were affected almost immediately after the injections. Five died within minutes and four others died within an hour. The remainder were affected to a lesser degree within minutes. Dr. Hardy testified the 100% reaction "would be indicative to me, would indicate, that maybe something was wrong with this product, but still not conclusive". Dr. Morgan, a veterinarian employed by Franklin also confirmed that the 100% reaction indicated "there was a contaminant in the product" if that was the only information that he had other than the diagnosis of anaphylactic shock. Dr. Morgan testified shock was becoming evident in the use of pharmaceutical and biologics in the veterinary filed, and his company saw the need for a treatment of shock in 1960 to be administered by ranchers and stockmen. The company proposed a product for this treatment which contained epinephrine, but the government refused to permit the product to be marketed because epinephrine is a hormone-like product and the law required a prescription for its purchase. Franklin recognized the frequency of shock in these cases and had prescribed a method of treatment for anaphylactic shock in its catalogue since 1961. The catalogue, in evidence, stated anaphylactic shock "is a situation of individual animals and not necessarily a herd problem". The article then prescribes the prompt use of adrenalin (epinephrine) as a treatment for anaphylactic shock. The distribution of the circular is not shown and there is no evidence Hoover had read or had knowledge of this information contained in the catalogue. No such warning appeared on the labels of the bottles containing Pen-Strep. On the numerous previous occasions Hoover had used Pen-Strep, his cattle had never suffered anaphylactic shock before. Hoover's expert witness testified that the most extensive reaction a herd had experienced from the use of Pen-Strep or other serum containing penicillin and dihydrostreptomycin that he had previously known of was approximately eight cattle out of a herd of 96. The highest percentage of reaction observed by Dr. Morgan, a witness for the defendant, was approximately 3%. As previously stated, one of the two bottles purchased by Dale Hoover was used up entirely. Only one or two calves were injected with the serum from the second bottle. A sample from this second bottle was taken by a representative of Franklin, from which two tests were made. A sterility test revealed the product was free of any contaminating bacteria or fungi. A safety test, performed by injecting the product into another animal, showed no adverse reaction to that product. Obviously, no sample was available from the first bottle. 618 An antibiotic certificate issued by the Food and Drug Administration shows the "batch mark", out of which came the serum used by Hoover, was a product which was not toxic, was correctly made and could be safely used in the inoculation of cattle. The thrust of Franklin's position is it was entitled to an instructed verdict for the reason there was no evidence of the serum being used being defective; that it had fully complied with and met the governmental requirements as to sterility, purity, and safety. In support of its position, appellant cites and relies principally on Cudmore v. Richardson-Merrell, Inc. (Tex.Civ.App.), 398 S.W.2d 640 (Ref. N. R.E.); and Howard v. Avon Products, Inc., 155 Colo. 444, 395 P.2d 1007. The Cudmore case involves physical injury to a person as a result of using a drug manufactured by the defendant. While taking the drug, plaintiff observed loss of hair and flaking of skin. After taking the drug for approximately one year the plaintiff was diagnosed as having cataracts in both eyes. The jury found the plaintiff's cataracts were the result of abreaction or sensitivity to the drug; and that the plaintiff belonged to a class of people, not appreciable in number, who are allergic to the drug. In affirming the lower court's judgment denying plaintiff recovery, the court held the manufacturer of the drug intended for human consumption or intimate bodily used should be held liable on the ground of breach of implied warranty only when such results or some similar results ought reasonably to have been foreseen by a person of ordinary care in an appreciable number of cases. We agree both with the court's holding in that case and the inference that the holding would also apply in cases of the manufacturer of drugs for the use of animals. However, we do not consider the case controlling under the facts and circumstances present here. There, the jury found the drug was not a proximate cause of plaintiff's cataracts; that the cataracts were the result of abreaction; and that the plaintiff belonged to a class of people, not appreciable in number, who are allergic to the drug. The Howard v. Avon Products Company case also denied plaintiff's recovery for injuries suffered from a reaction from a cosmetic product on the ground that the plaintiff failed to bring herself within the identifiable class and sufficient number concept. These cases involved the problem of the allergic or unusually susceptible single consumer to the product. Except for the diagnosis of anaphylactic shock, there is no evidence the 25 Hoover calves were allergic to the ingredients found in Pen-Strep; or that they had been exposed to anything that would tend to render them sensitive to the serum. These calves had had no previous injections of a penicillin product or any other product that would have made them sensitive to the ingredients found in Pen-Strep. There are quite a number of cases from other jurisdictions where governmental regulations and requirements have been satisfactorily met in connection with the production of a product, and the courts held that it was a jury question when the circumstances established that sickness and death immediately follow the use of the product. Brown v. Globe Laboratories, Inc., 165 Neb. 138, 84 N.W.2d 151; American Cyanamid Company v. Fields (4th Cir.), 204 F.2d 151; Chandler v. Anchor Serum Company, 198 Kan. 571, 426 P.2d 82; Haberer v. Moorman Manufacturing Company, 341 Ill.App. 521, 94 N.E.2d 611; Marxen v. Meredith, 246 Iowa 1173, 69 N. W.2d 399; Economy Hog & Cattle Powder Company v. Compton, 192 Ind. 222, 135 N. E. 1; Miller v. Economy Hog & Cattle Powder Company, 228 Iowa 626, 293 N.W. 4. See also 81 A.L.R.2d, pp. 190. We think the reasoning and ruling in these cases are applicable to the facts and circumstances presented here. From a review of the facts and circumstances relating thereto, together with the inferences that may be legitimately drawn therefrom, we think the evidence 619 presented a jury question as to whether or not the implied warranty of fitness was breached and if so, whether or not the breach was the cause of the death or sickness of appellees' calves. As stated in Reid v. Ehr, 43 N.D. 109, 174 N.W. 71: "The physical facts speak louder than the testimony of the experts." The 25 calves injected with Pen-Strep were severely injured. Every calf reacted violently almost immediately after each was injected. A 100% reaction is undisputed. The three calves injected during the same operation with neomycin had no adverse affects. The 25 were in good health prior to the administration of the Pen-Strep. It was given simply as a precaution or treatment for a possible respiratory infection. We think the evidence supports the jury findings that the serum was unfit for its intended use; and that the harm to the calves was not the result of an abreaction. We overrule appellant's first four points of error. Appellant contends the trial court erred in overruling its motion for judgment non obstante veredicto founded on the assumed risk principle. There were no pleadings to support this affirmative defense. No special issues involving this defense were requested and none were submitted. In the absence of such pleadings and findings, this defense was waived. Hall v. Hall (Tex.Civ.App.), 298 S.W.2d 950. Reversed on other grounds 158 Tex. 95, 308 S.W.2d 12. Rule 277, Texas Rules of Civil Procedure. In its instructions to the jury, the trial court defined "unfit for its intended use" as follows: " * * means a product sold in a defective condition, unreasonably dangerous to the user or consumer or to its property; that is to say, dangerous to an extent beyond that which would be contemplated by the ordinary user with the knowledge available to him as to the characteristics of the product." It is appellant's contention the definition is inadequate and too burdensome upon it in that it ignores the need to weigh the utility of the product against the possibility of harm. Appellant's requested instruction correctly incorporates the omission here complained of. We are of the opinion the instruction given was proper. The first clause of the instruction uses the exact language found in Section 402A(1) of the American Law Institute's Restatement of the Law of Torts (2d ed.). The second clause is substantially identical to the language in Comment (i) under Section 402A. The instruction given would not place an undue burden on the defendant and is in substantial compliance with the strict liability concept adopted by the courts of this state. Appellant next asserts error in the trial court's circumstantial evidence instruction. Their position is the instruction did not distinguish between reasonable deduction and pure speculation. The proof offered was both direct and circumstantial. It was thus proper to charge upon circumstantial evidence. The court's instruction reads: "You are instructed that a fact may be established by circumstantial evidence. A fact is so established when the existence of such fact is fairly and reasonably inferred from the other facts proven in the case." This instruction is substantially and in essence the same as that approved by our Supreme Court in Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420. Appellant's point of error is not well taken. Appellant next contends the Court erred in overruling their objection to the court's charge founded on the inquiry of "producing cause" as distinguished from "proximate cause". The court defined producing cause as "an efficient, existing or contributing cause, which, in a natural and continuing sequence, produces the injury or damages complained of, if any."The crux of appellant's objection is the absence in the definition given of the element of foreseeability. This precise question was before the court in Cudmore v. Richardson-Merrell, Inc. (Tex.Civ.App.), 398 S.W.2d 640 (Ref. N.R.E.). The plaintiff contended *620 he had sustained cataracts from taking a drug manufactured by the defendant. The causation issue inquiring if the drug was the proximate cause of the injury was answered in favor of the defendant. On appeal the plaintiff contended the submission of the proximate cause issue, including the element of foreseeability, was error, and that producing cause, without the element of foreseeability, would have been the proper submission. The court rejected this contention and held "we think that foreseeability is properly an element in the law of implied warranty in products liability cases such as the one we have before us on this appeal." There can be no recovery against a drug manufacturer or other seller of drugs and medicine for injury following the use of such product in the absence of proof of proximate causation. 79 A.L.R.2d Products LiabilityDrug and Medicine, Section 21, pp. 338. Foreseeability is an element of the definition of proximate cause. Rudes v. Gottschalk, 159 Tex. 552, 324 S. W.2d 201. We are of the opinion the trial court erred in predicating the causation issue on producing cause rather than on proximate cause. Appellant also contends there was error in that the special issue was so framed as to inquire of the fitness of the product at the time it was used by Dale Hoover rather than when the product left Franklin's control. The issue complained of inquired if the "serum used by Dale Hoover on the occasion in question was unfit for its intended use of injection into cattle?" (Emphasis added). We do not so interpret this issue. The phrase "on the occasion in question" simply identifies the serum. It could not have misled the jury. We agree that appellant's liability must be determined as of the time the product left its control, but we do not think the wording of the special issue does violence to this rule of law. The Pen-Strep used by Hoover came in a sealed container. It is thus inferrable that the product reached the consumer without substantial change in the condition with which it was sold. McKisson v. Sales Affiliates, Inc., supra. Appellant's last point of error presents no reversible error. The judgment of the trial court is reversed and the cause is remanded. JOY, J., not participating.
980 F.2d 1447 Simpsonv.Stringfellow Memorial* NO. 92-6225 United States Court of Appeals,Eleventh Circuit. Dec 09, 1992 1 Appeal From: N.D.Ala. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3
907 F.2d 145 Beth-Yacobv.City of New York NO. 89-9208 United States Court of Appeals,Second Circuit. MAY 23, 1990 1 Appeal From: S.D.N.Y. 2 AFFIRMED.
UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 02-30129 Summary Calendar RONALD BAUMAN, Plaintiff-Appellant, VERSUS TENET HEALTH SYSTEMS HOSPITALS, INC. d/b/a MEADOWCREST HOSPITAL, Defendant-Appellee. Appeal from the United States District Court For the Eastern District of Louisiana 00-CV-1176 October 11, 2002 Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Essentially for reasons stated by the district court in its January 11, 2002 Order and Reasons, we affirm the district court’s judgment. AFFIRMED. * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 2
2 P.3d 486 (2000) 101 Wash.App. 178 Dawn A. LEWIS and Darold Teitzel, Appellants, v. Gary and Nancy KRUSSEL, husband and wife, Respondents. No. 24599-0-II. Court of Appeals of Washington, Division 2. June 16, 2000. 487 John Dore Schumacher, Aberdeen, for Appellants. R. Alan Swanson, Swanson, Parr, Cordes, et al., Olympia, for Respondents. SEINFELD, J. During a windstorm, two large healthy hemlock trees fell on the home of Dawn Lewis and Darold Teitzel. Lewis and Teitzel sued Gary and Nancy Krussel, who owned the property on which the trees had been growing. Because there was no evidence that the Krussels had any reason to believe that these particular trees posed a hazard, the trial court granted the Krussels' motion for summary judgment. On appeal, Lewis and Teitzel urge us to hold that a landowner who has notice that other trees of the same 488 species have fallen has a duty to remove his healthy trees. We decline to so hold and, thus, affirm. FACTS Lewis and Teitzel live on property adjacent to that of the Krussels in a residential area of Grays. Harbor County. On December 3, 1995, two of the Krussels' large hemlock trees fell over during a windstorm, damaging the roof on the Lewis/Teitzel house. In January 1997, Lewis and Teitzel filed a complaint for damages against the Krussels. Both sides filed summary judgment motions. Lewis and Teitzel supported their motion with the parties' depositions. Gary Krussel acknowledged that windstorms had knocked down other trees on his property and other property nearby in previous years. He also said that one tree on his property or a neighbor's property fell on or near a neighbor's truck some years previously. During severe windstorms, including the one on December 3, 1995, he would have his mother stay at his house instead of in her mobile home that was set among the trees. About a week after the windstorm at issue here, another windstorm had knocked a tree onto his mother's mobile home. Gary Krussel stated that the trees that damaged the Lewis/Teitzel house were natural growth and that he had no reason to believe that they were any more dangerous than any other trees on his property under normal conditions. He could not recall participating in discussions with Lewis regarding the latter's concerns about the trees but said if such discussions took place, they probably related to a different parcel in the neighborhood, which had a "terrible problem" with falling trees. Krussel also testified that after the damage to the Lewis/Teitzel house he cut down other hemlock trees located near their house upon the recommendation of the local utility district. Teitzel said that he and Lewis expressed concern to the Krussels about the trees toppling over in the wind. Lewis stated that she expressed concerns to Krussel about the trees swaying in the wind and that both Gary and Nancy Krussel told her that they would do something about the trees. Lewis also testified that after the trees fell on their roof, Gary Krussel said something to the effect that he should have done something sooner about the trees. The Krussels supported their motion for summary judgment with the declaration of Doug Truax, a professional forester who inspected the stump of one of the fallen trees. Truax stated that he found no evidence of rot or disease in the stump or other trees. He concluded that the tree that fell on the Lewis/Teitzel house was no more dangerous than any other tree standing on the Krussels' property. Truax stated that even healthy trees blow over in heavy winds and that there was no way for the Krussels to determine beforehand whether any one of their trees would fall over. The trial court granted summary judgment in favor of the Krussels and dismissed the Lewis/Teitzel claims. Lewis and Teitzel moved for reconsideration and filed an affidavit by a meteorologist who provided data from a recording station located about three miles from their home. The meteorologist reported that data showed that the maximum sustained wind at that location on the night in question was 25.7 mph with a maximum gust to 38.7 mph. The meteorologist concluded that such winds were "fairly common" at that location during that particular time of year and did not constitute an "extraordinary" or "highly unusual wind event." The trial court denied the motion to reconsider. Lewis and Teitzel appeal. DISCUSSION Preliminarily, the Krussels note that Lewis and Teitzel did not assign error to the trial court's conclusion that there was no genuine issue of material fact. They suggest that Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267, 937 P.2d 1082 (1997), may have overruled the established standard of review of a summary judgment ruling. We conclude that it did not. Greater Harbor, a plurality decision, involved an appeal from a summary judgment. Two justices reasoned that the appellant's failure to assign error to the trial 489 court's "finding" that the case did not involve a genuine issue of material fact rendered such finding a verity, supporting summary judgment in favor of the respondent. Greater Harbor, 132 Wash.2d at 279, 937 P.2d 1082. But a larger plurality of justices decided Greater Harbor on ripeness grounds. 132 Wash.2d at 285, 937 P.2d 1082. Consequently, Greater Harbor did not alter the traditional rule that the trial court's findings on summary judgment are superfluous and this court need not consider them. See Concerned Coupeville Citizens v. Town of Coupeville, 62 Wash.App. 408, 413, 814 P.2d 243 (1991); Donald v. City of Vancouver, 43 Wash.App. 880, 883, 719 P.2d 966 (1986). Here, Lewis and Teitzel assigned error to the trial court's granting of summary judgment and identified issues arising from that action. Thus, we follow the established standard of review in considering this case, engaging in the same inquiry as the trial court. Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999). We consider the facts and reasonable inferences from the facts in the light most favorable to the nonmoving party. Bishop, 137 Wash.2d at 523, 973 P.2d 465; Taggart v. State, 118 Wash.2d 195, 199, 822 P.2d 243 (1992). And we review questions of law de novo. Bishop, 137 Wash.2d at 523, 973 P.2d 465. Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Bishop, 137 Wash.2d at 523, 973 P.2d 465; Taggart, 118 Wash.2d at 198-99, 822 P.2d 243. A material fact is one that affects the outcome of the litigation. See Greater Harbor, 132 Wash.2d at 279, 937 P.2d 1082. I. Elements of Negligence Lewis and Teitzel appear to base their claims in both nuisance and negligence. The Krussels contend that this court should confine its review to the negligence claim because it forms the basis for the nuisance claim. "In Washington, a `negligence claim presented in the garb of nuisance' need not be considered apart from the negligence claim." Atherton Condominium Apartment-Owners Ass'n Bd. v. Blume Dev. Co., 115 Wash.2d 506, 527, 799 P.2d 250 (1990) (quoting Hostetler v. Ward, 41 Wash.App. 343, 360, 704 P.2d 1193 (1985)). "In those situations where the alleged nuisance is the result of the defendant's alleged negligent conduct, rules of negligence are applied." Atherton, 115 Wash.2d at 527, 799 P.2d 250 (citing Hostetler, 41 Wash.App. at 360, 704 P.2d 1193). Here, Lewis and Teitzel ground their nuisance claim on the Krussels' inaction with regard to the fallen trees. In other words, the nuisance is the result of negligence. Atherton, 115 Wash.2d at 528, 799 P.2d 250. Accordingly, we do not consider the nuisance claim apart from the negligence claim. Atherton, 115 Wash.2d at 528, 799 P.2d 250. "The elements of a negligence cause of action are the existence of a duty to the plaintiff, breach of the duty, and injury to plaintiff proximately caused by the breach." Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999) (citing Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996)). "Existence of a duty is a question of law." Hertog, 138 Wash.2d at 275, 979 P.2d 400 (citing Schooley v. Pinch's Deli Market, Inc., 134 Wash.2d 468, 474, 951 P.2d 749 (1998)). There is no dispute that the offending trees toppled from the Krussels' land and damaged the Lewis/Teitzel house. The dispositive issue is whether Krussel had a duty to remove the healthy trees before they fell. II. Duty of Landowner The general thrust of the Lewis/Teitzel argument is that hemlock trees are inherently prone to toppling over and, thus, the Krussels were under a duty to cut down any of their hemlock trees that could fall on the Lewis/Teitzel house. But this theory is tantamount to a strict liability standard for the owners of hemlock trees. Neither the evidence nor the law support this proposition. The few strict liability authorities cited by Lewis and Teitzel do not apply in the fallen tree context. See, e.g., Vern J. Oja & Assoc. 490 v. Washington Park Towers, Inc., 89 Wash.2d 72, 76-77, 569 P.2d 1141 (1977) (holding that pile driving on construction site was abnormally dangerous activity warranting strict liability for damage caused to adjoining property). Louisiana is the only state we find that imposes strict liability for the fall of defective trees. See Loescher v. Parr, 324 So.2d 441, 445 (La.1975). But Louisiana law does not apply here because its liability there arises from statute. Loescher, 324 So.2d at 445. Consequently, we apply general negligence standards. "A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." W. Page Keeton et al, The Law of Torts § 53, at 356 (5th ed.1984). With respect to a defendant's duty to others, liability is based on "misfeasance," affirmative misconduct or, in more limited circumstances, "nonfeasance," passive inaction or failure to take steps to protect others from harm. Keeton, supra, § 56, at 373. The largest category of defendants upon whom there is a duty grounded in "nonfeasance" are owners and occupiers of land. Keeton, supra, § 56, at 374. "Cases dealing with the liability of adjoining property owners for damages caused by falling trees have not arrived at harmonious results." Dudley v. Meadowbrook, Inc., 166 A.2d 743, 743-44 (D.C.1961) (citing cases). The traditional rule is set forth in the RESTATEMENT (SECOND) OF TORTS, which states: (1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land. (2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway. § 363 (1965).[1] "Natural condition of land" includes the natural growth of trees. RESTATEMENT, supra, § 363 cmt. b. It appears that there is only one published case in this jurisdiction that directly deals with an adjoining landowner's liability for falling trees. Albin v. National Bank, 60 Wash.2d 745, 375 P.2d 487 (1962). In Albin, a windstorm knocked a tree across a county road killing the occupant of a passing car and injuring its driver. 60 Wash.2d at 746, 375 P.2d 487. The road passed through a heavily wooded, but recently logged, mountainous area. Albin, 60 Wash.2d at 746-47, 375 P.2d 487. The Albin court approved the dismissal of the plaintiffs wrongful death action against the county, stating: There is no evidence that the county had actual notice that the tree which fell was any more dangerous than any one of the thousands of trees which line our mountain roads, and no circumstances from which constructive notice might be inferred. It can, of course, be foreseen that trees will fall across tree-lined roads; but short of cutting a swath through wooded areas, having a width on each side of the traveled portion of the road equivalent to the height of the tallest trees adjacent to the highway, we know of no way of safeguarding against the foreseeable danger. 60 Wash.2d at 748-49, 375 P.2d 487. But the Albin court reached a different result with regard to the landowner. It reasoned that because the landowner had altered the property from its natural state by logging it, there was a jury question as to his liability. 60 Wash.2d at 754, 375 P.2d 487. Although Albin did not rely on the RESTATEMENT, it applied portions of its substance.[2]Compare Albin, 60 Wash.2d at 752, 375 P.2d 487 with RESTATEMENT, supra, § 363(1). In particular, Albin found it significant that the landowner had altered a natural condition that resulted in injury and it also recognized that the property was located in a rural setting. 60 Wash.2d at 751-52, 375 491 P.2d 487. Thus, Albin supports the proposition that a rural landowner may be liable if he has actual or constructive notice that an alteration to a natural condition creates a hazard to persons on adjacent property. 60 Wash.2d at 752, 375 P.2d 487. Albin is also consistent with the evolution of the law with regard to trees adjacent to other property. In general, the owner of land located in or adjacent to an urban or residential area has a duty of reasonable care to prevent defective trees from posing a hazard to others on the adjacent land. See, e.g., Cornett v. Agee, 143 Ga.App. 55, 237 S.E.2d 522, 523-24 (1977); Mahurin v. Lockhart, 71 Ill.App.3d 691, 28 Ill.Dec. 356, 390 N.E.2d 523, 524-25 (1979); Barker v. Brown, 236 Pa.Super. 75, 340 A.2d 566, 569 (1975); Israel v. Carolina Bar-B-Que, Inc., 292 S.C. 282, 356 S.E.2d 123, 127 (1987); see also Keeton, supra, § 57, at 391.[3] These authorities support the proposition that a possessor or owner of urban or residential land who has actual or constructive knowledge of defective trees is under a duty to take corrective action for the protection of the plaintiff on adjacent land. Actual or constructive notice of a "patent danger" is an essential component of the duty of reasonable care. See Nationwide Ins. Co., 639 N.E.2d at 537 (quoting Heckert v. Patrick, 15 Ohio St.3d 402, 473 N.E.2d 1204, 1207-08 (1984); Brown v. Milwaukee Terminal Ry., 199 Wis. 575, 589-90, 224 N.W. 748, 227 N.W. 385, 386 (1929)). Absent such notice, the landowner is under no duty to "consistently and constantly" check for defects. Ivancic, 497 N.Y.S.2d 326, 488 N.E.2d at 73; Meyers, 529 N.W.2d at 290 (quoting Ivancic); see also Cornett, 237 S.E.2d at 524 ("there is no duty to consistently and constantly check all pine trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage"); Israel, 356 S.E.2d at 127 (noting that defendant should have been aware of decaying limb). The alleged defect must be "readily observable" so that the landowner can take appropriate measures to abate the threat. Ivancic, 497 N.Y.S.2d 326, 488 N.E.2d at 73; Meyers, 529 N.W.2d at 290 (quoting Ivancic); see also Cornett, 237 S.E.2d at 524. The reasoning of the above courts is consistent with Albin, the only authority in this State, and persuades us that one whose land is located in or adjacent to an urban or residential area and who has actual or constructive knowledge of defects affecting his trees has a duty to take corrective action. Dudley, 166 A.2d at 744; Willis, 361 S.E.2d at 513; Mahurin, 28 Ill.Dec. 356, 390 N.E.2d at 525; Burke, 571 A.2d at 299; Ivancic, 497 N.Y.S.2d 326, 488 N.E.2d at 73; Nationwide Ins. Co., 639 N.E.2d at 537; Barker, 340 A.2d at 569. Conversely, absent such knowledge, an owner/possessor does not have a duty to remove healthy trees merely because the wind might knock them down. III. Evidence of Breach Having determined the landowner/possessor's duty, we now consider whether Lewis and Teitzel presented evidence that the Krussels breached this duty. Their contention that it was foreseeable that a windstorm would bring down one of the Krussels' healthy trees is insufficient to show the requisite actual or constructive knowledge of a defect. See Albin, 60 Wash.2d at 748-49, 752, 375 P.2d 487 (tree was probably dead because loggers left it standing); Dudley, 166 A.2d at 744 (tree "full of decay"); Burke, 571 A.2d at 297 (tree showed evidence of past treatment for disease or carpenter ant damage); Barker, 340 A.2d at 567 (tree 492 decayed and rotting); Israel, 356 S.E.2d at 127 (offending limb "partially decayed"). As Lewis and Teitzel concede, there is no evidence contradicting forester Truax's statement that the tree he inspected was free of defects. Although the evidence indicates that the Krussels were aware of Lewis's and Teitzel's general concern that the trees swayed in the wind and could hit their house and that other trees had fallen in the area in previous years, this did not put Krussel on actual or constructive notice of a defect requiring removal of the trees. See Wade v. Howard, 232 Ga.App. 55, 499 S.E.2d 652, 655 (1998) (reviewing court will not rely on neighbor's lay opinion regarding danger of leaning tree absent evidence of defective condition). Nor does evidence that the Krussels made a vague promise to do something about the trees or moved their mother from her mobile home during wind storms prove their knowledge that the trees in question posed a hazard. Missing is evidence that the offending trees suffered from defects making them more prone to fall and thus requiring their reinforcement or removal. See Gibson v. Hunsberger, 109 N.C.App. 671, 428 S.E.2d 489, 492 (1993) (evidence that healthy tree was leaning would not have put landowner on constructive notice that a dangerous condition existed in region where it was common for healthy trees to lean); Ford v. South Carolina Dep't of Transp., 328 S.C. 481, 492 S.E.2d 811, 815 (1997) (evidence that saturated ground contributed to fall of healthy tree sufficient to raise material issue of fact as to whether Department failed to detect and prevent hazard to adjoining rural road). Finally, Lewis cannot rely on her own bare allegations as to the alleged vulnerability of hemlock trees to establish the Krussels' knowledge of defects in the trees at issue. Absent the declarant's personal knowledge or some other competent evidence linking the natural characteristics of hemlock trees and their alleged tendency to fall, such conclusory allegations are inadequate to raise a genuine issue of material fact. See, e.g., Meissner v. Simpson Timber Co., 69 Wash.2d 949, 955-56, 421 P.2d 674 (1966); Loss v. DeBord, 67 Wash.2d 318, 321, 407 P.2d 421 (1965); Curran v. City of Marysville, 53 Wash.App. 358, 367, 766 P.2d 1141 (1989); Wade, 499 S.E.2d at 655. Viewing the evidence in the light most favorable to Lewis and Teitzel, there are no genuine issues of material fact as to whether the Krussels were actually or constructively aware of any defects in the trees that required remedial action to prevent them from falling or whether the Krussels breached any duty to Lewis and Teitzel. See Folsom v. Burger King, 135 Wash.2d 658, 677-78, 958 P.2d 301 (1998); Wade, 499 S.E.2d at 655-56; Heckert, 473 N.E.2d at 1207-08. Thus, the trial court properly granted summary judgment in favor of the Krussels. Accordingly, we affirm. MORGAN, P.J., and HOUGHTON, J., concur. NOTES [1] RESTATEMENT, supra, § 840, sets forth an analogous rule with respect to nuisance. [2] Albin was decided before publication of the Restatement (Second) sections cited earlier in this opinion. [3] In recognition of the increasing development and urbanization of the American landscape, many courts are rejecting the urban/rural distinction and instead are applying a general duty of reasonable care in all situations. See, e.g., Sprecher v. Adamson Cos., 30 Cal.3d 358, 636 P.2d 1121, 1128-29, 178 Cal.Rptr. 783 (1981) (landslide case applying tree case analysis); Dudley, 166 A.2d at 744; Willis v. Maloof, 184 Ga. App. 349, 361 S.E.2d 512, 513 (1987); Meyers v. Delaney, 529 N.W.2d 288, 290 (Iowa 1995); Burke v. Briggs, 239 N.J.Super. 269, 571 A.2d 296, 299-300 (1990) (adopting Sprecher); Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72, 73, 497 N.Y.S.2d 326, 54 A.L.R.4th 523 (1985); Nationwide Ins. Co. v. Jordan, 64 Ohio Misc.2d 30, 639 N.E.2d 536, 537 (1994); see also 62A Am.Jur.2d, Premises Liability, § 747 (1990).
938 A.2d 1054 (2007) CITY OF PHILADELPHIA v. W.C.A.B. (Sites). No. 28 EAL (2006). Supreme Court of Pennsylvania. December 12, 2007. Disposition of Petition for Allowance of Appeal Denied.
341 S.E.2d 339 (1986) Judy K. PHILLIPS & Melvin Owensby v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION. No. 8510IC865. Court of Appeals of North Carolina. April 1, 1986. 340 Hamrick & Hamrick by J. Nat Hamrick, Rutherford, for plaintiffs-appellants. Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. George W. Lennon and Associate Atty. Gen. Randy Meares, Dept. of Justice, Raleigh, for defendant-appellee. PHILLIPS, Judge. If G.S. 143-291 had not been amended by Session Laws 1977, c. 529, effective 1 July 1979, the Full Commission's decision denying recovery to plaintiffs would have to be summarily affirmed. For the negligence of the State in this case, if any, was that of inaction or omission rather than action or commission and before G.S. 143-291 was amended only claimants that had been injured by "a negligent act" of a state officer, employee, or other agent could recover under the Tort Claims Act. As earlier written the statute did not permit recovery from the State for the negligent omissions or failures to act of its employees. Ayscue v. N.C. State Highway Commission, 270 N.C. 100, 153 S.E.2d 823 (1967); Flynn v. N.C. State Highway and Public Works Commission, 244 N.C. 617, 94 S.E.2d 571 (1956). But that is no longer the law and the Commission erred in assuming that it is. By virtue of the amendment referred to, the words "a negligent act" were replaced by the words "the negligence" and G.S. 143-291, in pertinent part, now reads, and did when plaintiffs were injured, as follows: 341 The Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina. (Emphasis supplied). That the State's tort liability was greatly enlarged by the enactment and is no longer limited to responsibility for the negligent acts of its employees is obvious. See, Watson v. N. C. Department of Corrections, 47 N.C.App. 718, 721, 268 S.E.2d 546, 549, disc. rev. denied, 301 N.C. 239, 283 S.E.2d 135 (1980); 56 N.C.L.Rev. 1136, at p. 1148 (1978); Daily Bulletin No. 62, Institute of Government, p. 505 (April 7, 1977). It is just as obvious that the effect and purpose of the amendment was to extend the State's liability to include the negligent omissions and failures to act of its employees. A negligent act is but one form of negligence; whereas negligence if unrestricted, as it is in G.S. 143-291, is a term broad enough to embrace all negligent conduct, passive and active alike. Since it has been determined that plaintiffs were not contributorily negligent they are entitled to recover of the defendant if their injuries proximately resulted from a negligent omissions or negligent failure to act by either of defendant's employees named in the amendment to plaintiffs' affidavit; they are not required to show that their injuries resulted from a negligent act of either employee. Thus, the Full Commission's decision and order is defective and further findings and conclusions in accord with this opinion are necessary. The finding of fact that no "negligent act" had been committed by the employees named only partially addressed the issue raised and the Commission's conclusion of law based thereon that there was no negligence by such employees and the resulting decision for defendant cannot stand and are vacated. The Commission should have also found whether either of the employees namedBilly Rose, who was in charge of the Division of Highways for North Carolina, and J.B. Edwards, who was in charge of highways in Rutherford Countywas negligent by reason of his failure to maintain said highway shoulder in a reasonably safe condition, or by his failure to correct the dangerous condition that caused plaintiffs to be injured. The record shows without dispute or contradiction that a condition dangerous to users of the highway had existed for many years without being corrected by those responsible for maintaining the highway. The Deputy Commissioner's finding that no notice had been given to the department of the many accidents that had occurred at the place is not decisive. Notice is not required to a party that already has knowledge and the defendant clearly had knowledge of the dangerous condition through its local Road Maintenance Supervisor, Albert Jones. Furthermore, the defendant's duty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections and if the hazard had existed on defendant's right-of-way in close proximity to the highway for more than thirty years, as the evidence and findings indicate, the defendant had implied notice of the condition as a matter of law. 65 C.J.S. Negligence Sec. 5(3) (1966). Vacated and remanded. JOHNSON, J., concurs. HEDRICK, C.J., concurs in the result. HEDRICK, Chief Judge, concurring in result. I concur in the decision of the majority vacating the decision of the Industrial Commission. The Commission erroneously denied plaintiffs' claim on the grounds that the evidence failed to disclose any "negligent act" by any defendant employee named. I disagree with the majority's efforts to do more than vacate the decision of the Commission and remand for a new hearing. I vote to remand to the Industrial *342 Commission for a new hearing, new findings and conclusions and for a decision in accordance with the law relative to G.S. 143-291, as amended. It is for the Commission, not the appellate Court, to make findings of fact from the evidence given in the case.
424 So.2d 204 (1983) Jack Y. WILLIAMS and G. Rita Ala, Appellants, v. John J. STEWART, Appellee. No. 82-32. District Court of Appeal of Florida, Second District. January 5, 1983. Joseph R. Miele, St. Petersburg, for appellant Williams. Jack S. Carey of Carey & Harrison, St. Petersburg, for appellant Ala. James E. Deakyne, Jr. and Robert F. Nunez, St. Petersburg, for appellee. CAMPBELL, Judge. While attending a small social gathering, Dr. John Stewart met Jack Williams, a licensed, Florida real estate broker. Dr. Stewart told Williams he needed to shelter 205 some income and asked Williams to find some property for him. Subsequently, Williams learned of the availability of the Plantation Inn through its listing broker, G. Rita Ala, and, after showing this property to Dr. Stewart, the parties entered into a contract for sale. This contract specifically provided that the seller was responsible for paying the broker's commission to Ala and Williams. At the doctor's request, this contract was made subject to an engineering report on the property. Williams, accordingly, hired an engineer who reported that the property needed only minor repairs. The parties then set closing for February 27, 1978. Sometime prior to closing, Dr. Stewart learned that the roof leaked, and, at the closing, he said he did not want to close because of the roof. He also complained that the contract was messy and that he wanted his brother, an attorney, to examine it. Williams and Ala offered to pay for a new roof even though they did not believe a new one was needed. The vendors also maintained that the building did not need a new roof. The closing never occurred, and Dr. Stewart later demanded return of his earnest money, which demand was refused. The doctor then sued the brokers for damages arising from the loss of his earnest money. They answered and counterclaimed, alleging breach of the real estate contract, breach of an implied promise to complete the transaction, and breach of an agreement to pay a broker's commission. The trial court entered summary judgment for the doctor on these counterclaims, and the case continued to trial on the remaining issues. The jury found for the brokers. Williams and Ala then appealed the entry of summary judgment on their counterclaims, and Dr. Stewart cross-appealed the adverse jury verdict. Generally, absent some agreement to the contrary, a purchaser breaching a contract for sale of real property is not liable to the broker for his commission. Bruce v. American Development Corp., 408 So.2d 857 (Fla. 3d DCA 1982); Belk v. Oehlert, 324 So.2d 668 (Fla. 4th DCA 1975); Tutko v. Banks, 167 So.2d 110 (Fla. 3d DCA 1964). A broker must usually look to the vendor for his commission. Borinsky v. Cohen, 86 So.2d 814 (Fla. 1956); Moss v. Sperry, 140 Fla. 301, 191 So. 531 (1939). Here, the contract specifically stated that only the seller was obligated to pay the broker's commission. Nevertheless, appellants have argued that appellee impliedly promised to complete the transaction and that this implied promise was a contract separate from the express written contract. There is only one contract here, that being the express contract signed by all the parties to the transaction. A conclusion that there was also an oral, implied promise by the purchaser to complete the transaction would violate the statute of frauds. In any event, where there is an express agreement, the law will not imply one. Jacksonville American Publishing Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940); Hazen v. Cobb-Vaughan Motor Co., 96 Fla. 151, 117 So. 853 (1928). The brokers provided the contract, and if they wished to make the purchaser liable for their commissions under certain circumstances, they could have done so. We recognize that other jurisdictions have reached contrary results regarding the liability of a purchaser for a real estate broker's commission when he makes no express, written agreement to pay that commission. See, e.g., Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967). However, this is a minority view which does not obtain in Florida. See 30 A.L.R.3d 1395. Finally, regarding the allegations that appellee breached the real estate contract, clearly he had the right to do so and to suffer, as a result, the loss of his earnest money deposit. All parties, including the broker, agreed in writing that this would be the appropriate remedy in the event of a breach by appellee. Therefore, appellants cannot now seek additional damages from appellee over and above the earnest money deposit. Accordingly, we affirm the summary judgment entered on appellants' counterclaims. 206 We have examined the points raised by appellee on cross-appeal and find them to be without merit. AFFIRMED. OTT, C.J., and BOARDMAN, J., concur.
845 S.W.2d 454 (1993) Steven BELL, Appellant, v. The STATE of Texas, Appellee. No. 3-92-124-CR. Court of Appeals of Texas, Austin. January 13, 1993. 456 Kenneth E. Houp, Jr., Austin, for appellant. Ken Oden, County Atty., Giselle Horton, Asst. County Atty., Travis County, Austin, for appellee. Before POWERS, KIDD, and ONION,[] JJ. ONION, Justice. This appeal is taken from a conviction for the unlawful possession of marihuana of two ounces or less. Appellant entered a plea of nolo contendere to the information in a bench trial. The trial court assessed his punishment at confinement in the county jail for sixty days and a fine of one thousand dollars. The imposition of the sentence was suspended, and appellant was placed on probation subject to certain conditions. In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress evidence illegally seized during the execution of a search warrant that did not specifically name him "as a suspect in a drug raid." We will reverse the conviction. Appellant filed a pretrial motion to suppress evidence seeking, inter alia, to have the trial court suppress any tangible evidence seized without lawful warrant, probable cause, or other lawful authority in violation of appellant's rights under the Fourth and Fourteenth Amendments, United States Constitution, Article I, Section 9 of the Texas Constitution, and Chapters fourteen and thirty-eight of the Texas Code of Criminal Procedure. An evidentiary hearing on the motion was conducted in two stages, first on November 6, 1991, and then on January 23 and 24, 1992. At the conclusion of the hearing, the trial court denied the suppression motion. Appellant then entered a plea of nolo contendere to the information. After conviction, appellant gave notice of appeal. See Tex.R.App.P. 40(b)(1). The evidentiary hearing revealed that on March 6, 1991, Austin Police Officer Liana Crow obtained a combination search and arrest warrant. The warrant authorized peace officers to enter the premises at 7513 Meador Avenue in Austin to search for and seize the marihuana described in the affidavit for the warrant and to arrest "each person described and accused in the affidavit." The affidavit stated that the premises were controlled by "1. Otis Neal Daniels, Jr., black male, born 03/14/61, and; 2. Other persons whose names and identities are unknown to your affiant at this time." The affidavit further stated that the affiant believed, charged, and accused the "aforedescribed persons" as having intentionally 457 and knowingly possessed marihuana at the described premises on or about March 1, 1991. About 12:30 p.m. on March 6, 1991, eight or nine Austin police officers arrived at 7513 Meador Avenue to execute the warrant. Appellant Bell was on the front porch of the house. When he saw the officers, appellant moved toward the front door and shouted "Police, Police." Officer Richard Burns testified that within a matter of seconds, he had grabbed appellant and had taken appellant to the ground and handcuffed him. In a subsequent frisk of appellant, Burns felt an object in appellant's right front pants pocket that seemed to be a knife. In removing what was a pen knife, not an illegal weapon, Burns also removed a plastic baggie of marihuana, which is the basis of the instant prosecution. Inside the house, the officers found Otis Daniels, three other men, cocaine, and marihuana. Appellant was not charged with the possession of the contraband found in the house. The law of parties is not involved here. In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Supreme Court considered the authority of an officer to frisk persons who are present at the time of the execution of a search warrant. In Ybarra, officers had secured a warrant to search a tavern for narcotics. In executing the warrant, officers subjected all the tavern's patrons to a frisk search. The Court held that the search which yielded the contraband was improper in the absence of a reasonable belief that the person to be frisked was presently armed and dangerous. Before the Ybarra decision, an officer in Texas executing a valid search warrant had the right to search all persons found on the premises during the execution of the warrant. See, e.g., Rice v. State, 548 S.W.2d 725 (Tex. Crim.App. 1977); Hernandez v. State, 437 S.W.2d 831 (Tex.Crim.App.1968); Conner v. State, 712 S.W.2d 259, 260 (Tex.App. Austin 1986, pet. ref'd). This authority of Texas peace officers was further abrogated by the decision in Lippert v. State, 664 S.W.2d 712 (Tex.Crim.App. 1984), which followed Ybarra. The Lippert opinion articulated the following principles: (1) a warrant to search a premises and to arrest and search specified individuals does not carry with it the right to detain, search, or frisk persons found on the premises but not directly associated with the premises and not named or specifically described in the warrant; (2) to justify the detention and search of a person, other than an occupant, present at the scene of a valid execution of a search warrant, there must be some independent factors, other than mere presence, tying the person to the unlawful activities on the premises; and (3) a frisk of a person merely present at the scene must be justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), i.e., the police must have a reasonable belief that the person may be armed and presently dangerous. Lippert, 664 S.W.2d at 721-22. See also Worthey v. State, 805 S.W.2d 435, 438 n. 5 (Tex.Crim.App.1991); State v. Owens, 810 S.W.2d 874, 875 (Tex.App.Austin 1991, no pet); Conner, 712 S.W.2d at 260. Appellant initially claims that the first principle of Lippert was not met. Appellant was not shown to be a resident or occupant of the Daniels' house. While appellant was present at the time of the execution of the warrant, he was not named or specifically described in the warrant. Officer Crow, the affiant on the affidavit for the warrant, testified that she had seen appellant on the premises in question on two occasions within three days of the raid. Once she saw appellant standing on the porch and another time she observed him helping wash a car. Officer Crow agreed that appellant had not been named or specifically described in the warrant. The State urges that the warrant sufficiently described appellant and was not so general as to permit indiscriminate arrests and searches of a larger number of persons. The State's reliance upon Gonzales v. State, 761 S.W.2d 809 (Tex.App.Austin 1984, pet. ref'd), is misplaced. Gonzales is distinguishable on its facts as well as the different terms of the two warrants. Appellant also urges that there was no compliance with the second principle of 458 Lippert in that there were no independent factors, other than mere presence, tying him to the unlawful activities the police believed were occurring at 7513 Meador Avenue. The State disagrees. The State contends that appellant's act in warning or attempting to warn those in the house of the approach of the police cannot be characterized as consistent with innocent activity. In Conner, as in the instant case, the officers were wearing jackets clearly identifying themselves as police officers. In Conner, this Court stated: We do not believe that only a person engaged in criminal activity would be startled by the sight of seven, presumably armed, police officers approaching a house as he stepped outside. Nor do we find it necessarily indicative of criminal behavior that such a person would advise the others present in the house of the approach of the police.... In short, we find the evidence cited by the State insufficient to tie appellant to the unlawful activities allegedly taking place in the Benson house. Conner, 712 S.W.2d at 261. We similarly hold that the evidence in this cause is insufficient to tie appellant to the unlawful activities, if any, taking place in the Daniels' house. Furthermore, the frisk search was not justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Court held an officer may conduct an investigatory detention and protective patdown when he "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous...." Terry, 392 U.S. at 30, 88 S.Ct. at 1884. The inquiry breaks down into two parts. First, the officer must be justified in initially detaining the individual. A brief detention is lawful when it is supported by specific and articulable facts that reasonably warrant the intrusion. Second, in order to justify the patdown, the officer must be able to point to specific and articulable facts suggesting that the individual presented a risk of harm to the officer or to others. United States v. Campbell, 942 F.2d 890, 892 (5th Cir.1991). An officer may pat down an individual only if his suspicions of dangerousness are directed toward the subject of the patdown. United States v. Rideau, 949 F.2d 718, 721 (5th Cir.1991). In the instant case, Officer Burns testified that in a matter of seconds after the police arrived on the scene, he had appellant on the ground and had handcuffed him. Appellant did not resist. Burns acknowledged that appellant had not assaulted or threatened him. The officer did not see a weapon on appellant before taking appellant into custody. He could not point to one thing that made him believe that appellant had a weapon. When Officer Burns was asked if he had any articulable fact that appellant was a danger to the officers or others, he replied: "That's an unknown." Officer Burns did testify that the police assume that everyone "in the house" during a narcotic raid is a possible threat and may be armed and dangerous. He related that police officers try to maintain control of everybody as quickly as possible for safety reasons, and that this standard operating department policy was followed on the occasion in question. Fourth Amendment protection against unreasonable searches and seizures, however, cannot be whittled away by a police regulation or standard operating procedure. See Benavides v. State, 600 S.W.2d 809, 812 (Tex.Crim.App.1980). To support the search, Officer Burns improperly focused on appellant's surroundings rather than on his behavior.[1]See 459 Rideau, 949 F.2d at 721. In determining whether an officer has acted reasonably in executing a stop-and-frisk search, courts must give due weight totthe specific inferences which the officer is entitled to draw from the facts of the situation in light of the officer's experience. United States v. Harvey, 897 F.2d 1300, 1303 (5th Cir.1990). In that regard, courts are also bound to reject an officer's inchoate or unparticularized suspicion or hunch. Terry, 392 U.S. at 22, 88 S.Ct. at 1880; Harvey, 897 F.2d at 1303. Officer Burns' sole justification for the stop-and-frisk search was his later assertion that it is common for persons dealing in narcotics to carry weapons. This justification, standing alone, would be insufficient to pass muster under Terry standards. Mere presence neither obviates nor satisfies the requirement of Terry that specific articulable facts support an inference that the suspect might be armed and dangerous. Ybarra, 444 U.S. at 92, 100 S.Ct. at 342; United States v. Cole, 628 F.2d 897, 899 (5th Cir.1980). Under any circumstances, it appears from the record that the actions of Officer Burns in grabbing appellant, throwing him to the ground and handcuffing him amounted to an arrest and not a mere investigative detention or stop under Terry. See Burkes v. State, 830 S.W.2d 922, 925 (Tex.Crim.App.1991); Amores v. State, 816 S.W.2d 407, 411-12 (Tex.Crim.App. 1991); Torres v. State, 825 S.W.2d 124 (Tex.Crim.App. 1992) (remanded for reconsideration in light of Amores); Hafford v. State, 828 S.W.2d 275 (Tex.App.Fort Worth 1992, pet. ref'd); Brown v. State, 826 S.W.2d 725 (Tex.App.Houston [14th Dist.] 1992, no pet.) (suspect was "arrested" when initially stopped by officers who came at suspect from both sides to keep him from getting away, and suspect was forced to lean on police car while officer frisked the suspect and placed his hand on the suspect throughout the entire encounter). Under state law an arrest occurs when a person's liberty of movement is restricted or restrained. Hoag v. State, 728 S.W.2d 375, 379 (Tex.Crim.App. 1987). Article 15.22 of the Texas Code of Criminal Procedure provides that "a person is arrested when he has been actually placed under restraint." Tex.Code Crim.Proc. Ann. art. 15.22 (West 1977). Having determined from all the facts and circumstances surrounding the detention that an arrest occurred, see Hoag, 728 S.W.2d at 378, the issue is whether the police officer effectuated a legal arrest of appellant and thereby properly averted the suppression of the fruits of the arrest. An arrest must be based on the higher standard of probable cause, and is thus distinguishable from an investigative detention or stop under Terry. See Glass v. State, 681 S.W.2d 599, 601 (Tex. Crim.App.1984). The officer is required to have probable cause to believe that a particular person had committed or is committing an offense. Terry, 392 U.S. at 11 n. 5, 88 S.Ct. at 1874 n. 5. The test for determining the existence of probable cause for a warrantless arrest is "[w]hether at that moment the facts and circumstances within the officer's knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense." Adkins v. State, 764 S.W.2d 782, 785 (Tex. Crim.App. 1988) (quoting Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). State law governs the determination of probable cause and the legality of the arrest so long as the state law does not violate federal constitutional protection. Milton v. State, 549 S.W.2d 190, 192 (Tex. Crim.App. 1977). Probable cause determinations in a warrantless arrest setting are made primarily based on chapter fourteen of the Texas Code of Criminal Procedure. And the totality of the circumstances test is applied to determine probable cause for a warrantless arrest. Eisenhauer v. State, 754 S.W.2d 159 (Tex.Crim.App. 1988); see also Amores, 816 S.W.2d at 413. The State has the burden to show the existence of probable cause to justify the warrantless 460 arrest or search. Brown v. State, 481 S.W.2d 106, 109 (Tex.Crim.App.1972); Brown, 826 S.W.2d at 728. The State also argues, as in Conner, that the police officers had probable cause to arrest appellant for violating section 38.-05(a)(3) of the Texas Penal Code, which provides that a person commits an offense if, with intent to hinder the arrest of another for an offense, he warns the other of impending discovery or apprehension. Tex.Penal Code Ann. § 38.05(a)(3) (West 1989). The State calls attention to article 14.01 of the Texas Code of Criminal Procedure, which provides that a peace officer may make a warrantless arrest for an offense committed in his presence or within his view. Tex.Code Crim.Proc.Ann. art. 14.01 (West 1977). In Conner, this Court wrote: Just as a person's mere propinquity to another independently suspected of criminal activity does not, without more, give rise to probable cause to search that person, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), neither does the mere fact that a person informs another independently suspected of criminal activity of the approach of a police officer, without more, give rise to probable cause to arrest that person for hindering arrest. Conner, 712 S.W.2d at 261. In reviewing a warrantless arrest to determine the existence of probable cause, the courts look to the facts known to the officers at the moment or time of arrest; subsequently discovered facts or later-acquired knowledge, like the fruits of the search, cannot retroactively serve to bolster probable cause at the time of the arrest. Amores, 816 S.W.2d at 415; Wilson v. State, 621 S.W.2d 799, 804 (Tex. Crim. App. 1981). From a totality of the circumstances, it is clear that the State failed to meet its burden to show probable cause for the warrantless arrest of appellant. The arrest was not lawful and the evidence seized pursuant to the illegal arrest should have been suppressed. Tex.Code Crim. Proc.Ann. art. 38.23 (West Supp.1993). The trial court erred in denying the motion to suppress evidence including the marihuana found and made the basis of the instant prosecution. We find the trial court improperly applied the law to the facts. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The sole point of error is sustained. The judgment of conviction is reversed and the cause remanded to the trial court. NOTES [*] Before John F. Onion, Jr., Presiding Judge, Retired, Court of Criminal Appeals, sitting by assignment See Tex.Gov't Code Ann. § 74.003(b) (West 1988). [1] At the first stage of the evidentiary hearing, Officer Burns testified that at the time of the raid he did not know appellant and was not familiar with him in any way. At the second stage of the hearing, over two months later, Burns related that he recognized appellant after appellant had been detained; that he had handled appellant on a raid at the same location in December 1990; and that appellant had no contraband on his person on that occasion. It appears that appellant was released following the December 1990 raid. Under any circumstances, Officer Burns did not recognize appellant until sometime after appellant was taken into custody and frisk seached on Mach 6, 1991.
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GINA MCKEEN-CHAPLIN, No. 15-16758 individually, on behalf of others similarly situated, and on behalf of D.C. No. the general public, 2:12-cv-03035- Plaintiff-Appellant, GEB-AC v. OPINION PROVIDENT SAVINGS BANK, FSB, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Argued and Submitted April 21, 2017 San Francisco, California Filed July 5, 2017 Before: Sidney R. Thomas, Chief Judge, Mary H. Murguia, Circuit Judge, and Michael M. Baylson,* District Judge. Opinion by Chief Judge Thomas * The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 2 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK SUMMARY Labor Law Reversing the district court’s grant of summary judgment in favor of the defendant in an action under the Fair Labor Standards Act, the panel held that mortgage underwriters were entitled to overtime compensation for hours worked in excess of forty per week. Applying the analysis used by the Second Circuit, rather than the Sixth Circuit, the panel held that, because the mortgage underwriters’ primary job duty did not relate to their employer bank’s management or general business operations, the administrative employee exemption to the Act’s overtime requirements did not apply. COUNSEL Matthew C. Helland (argued) and Daniel S. Brome, Nichols Kaster LLP, San Francisco, California; for Plaintiff- Appellant. Michael L. Ludwig (argued), Howard M. Knee (argued), and Caitlin Sanders, Blank Rome LLP, Los Angeles, California, for Defendant-Appellee. This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 3 OPINION THOMAS, Chief Judge: This appeal presents the question of whether a class of mortgage underwriters are entitled to overtime compensation under the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. § 201 et seq., for hours worked in excess of forty per week. We conclude that, because the mortgage underwriters’ primary job duty does not relate to the bank’s management or general business operations, the administrative employee exemption under 29 U.S.C. § 213(a)(1) and 29 C.F.R. § 541.200(a) does not apply,1 and the underwriters are entitled to overtime compensation. I Provident Savings Bank (“Provident” or “the Bank”) sells mortgage loans to consumers purchasing or refinancing homes and then resells those funded loans on the secondary market. Mortgage underwriters at Provident review mortgage loan applications using guidelines established by Provident and investors in the secondary market, including Fannie Mae, Freddie Mac, and the Fair Housing Administration. 1 The mortgage underwriters also argue that they do not exercise discretion and independent judgment with respect to matters of significance, but we need not reach this argument because the test to qualify for the administrative exemption under FLSA is conjunctive, not disjunctive, see Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th Cir. 2002), and Provident bears the burden of proving the employees in question satisfy each of the administrative exemption requirements, id. at 1124. 4 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK Loan transactions begin with a loan officer or broker who works with a borrower to select a particular loan product. A loan processor then runs a credit check, gathers further documentation, assembles the file for the underwriter, and runs the loan through an automated underwriting system. The automated system applies certain guidelines based on the information input and then returns a preliminary decision. From there, the file goes to a mortgage underwriter, who verifies the information put into the automated system and compares the borrower’s information against the applicable guidelines, which are specific to each loan product. Mortgage underwriters are responsible for thoroughly analyzing complex customer loan applications and determining borrower creditworthiness in order to ultimately decide whether Provident will accept the requested loan. They may impose conditions on a loan application and refuse to approve the loan until the borrower satisfies those conditions. The decision as to whether to impose conditions is ordinarily controlled by the applicable guidelines, but the underwriters can include additional conditions. They can also suggest a “counteroffer”—which would be communicated through the loan officer—in cases where a borrower does not qualify for the loan product selected, but might qualify for a different loan. Underwriters may also request that Provident make exceptions in certain cases by approving a loan that does not satisfy the guidelines. After a mortgage underwriter approves a loan, it is sent to other Provident employees who finalize the loan funding. Underwriters say that whether a loan is funded ultimately depends on factors beyond the underwriter’s control. Another group of Provident employees sells funded loans in the secondary market. MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 5 On behalf of herself and a class of mortgage underwriters, Gina McKeen-Chaplin brought this action seeking overtime compensation under FSLA. The district court conditionally certified an opt-in class of current and former mortgage underwriters at Provident. Initially, the district court denied cross motions for summary judgment and set the case for trial. But later, on the parties’ joint motion for reconsideration, the court concluded that the underwriters qualify for the administrative exemption, based on finding that their primary duty included “quality control” or similar activities directly related to Provident’s general business operations, and thus the district court granted summary judgment in favor of Provident. This timely appeal followed. Whether an employee’s primary duties exclude her from FLSA overtime benefits is a question of law to be reviewed de novo. Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1124 (9th Cir. 2002); Bratt v. Cty. of L.A., 912 F.2d 1066, 1068 (9th Cir. 1990). And we “must give deference to DOL’s [the Department of Labor’s] regulations interpreting the FLSA.” Webster v. Pub. Sch. Emps. of Wash., Inc., 247 F.3d 910, 914 (9th Cir. 2001) (citing Auer v. Robbins, 519 U.S. 452, 457 (1997)). We review a district court’s grant of summary judgment de novo. Swoger v. Rare Coin Wholesalers, 803 F.3d 1045, 1047 (9th Cir. 2015). Summary judgment is appropriate where “no genuine dispute as to any material fact” exists such that “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c). Though a denial of summary judgment is ordinarily unappealable because it is not a final order, where it is “coupled with a grant of summary judgment to the opposing party,” both orders are reviewable de novo. 6 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir. 2002). II Ordinarily, FLSA provisions require employers to pay employees time and a half for overtime work—that is, work in excess of forty hours per week. 29 U.S.C. § 207(a)(1). But employees who are “employed in a bona fide executive, administrative, or professional capacity” are exempt from those provisions. 29 U.S.C. § 213(a)(1). Employers who claim the so-called administrative exemption under FLSA bear the burden of proving its applicability to the employees in question. Bothell, 299 F.3d at 1124. Exemptions are to be construed narrowly. Id. at 1125. The overtime requirements have long been intended to financially pressure employers to “spread employment” and to assure workers “additional pay to compensate them for the burden of a workweek beyond the hours fixed in the [A]ct.” Overnight Motor Transp. Co., Inc. v. Missel, 316 U.S. 572, 577–78 (1942), superseded by statute, Portal-to-Portal Act, 61 Stat. 86–87 (authorizing courts to deny or limit liquidated damages awarded for FLSA violations), as recognized in Trans World Airlines v. Thurston, 469 U.S. 111, 128 n.22 (1985). Thus, FLSA “is to be liberally construed to apply to the furthest reaches consistent with Congressional direction” and exemptions “are to be withheld except as to persons plainly and unmistakably within their terms and spirit.” Bothell, 299 F.3d at 1124–25 (quoting Klem v. Cty. of Santa Clara, 208 F.3d 1085, 1089 (9th Cir. 2000)). MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 7 A To determine whether employees qualify for the administrative exemption, the Secretary of Labor has formulated a “short duties test.” Bothell, 299 F.3d at 1126.2 A qualifying employee must (1) be compensated not less than $455 per week; (2) perform as her primary duty “office or non-manual work related to the management or general business operations of the employer or the employer’s customers;” and (3) have as her primary duty “the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a). An employee’s primary duty is “the principal, main, major or most important duty that the employee performs.” 29 C.F.R. § 541.700(a). These three conditions “are explicit prerequisites to exemption, not merely suggested guidelines.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). Accordingly, Provident must prove that the mortgage underwriters meet all three duty requirements. See Bothell, 299 F.3d at 1125 (citing Mitchell v. Williams, 420 F.2d 67, 69 (8th Cir. 1969) (“The criteria provided by regulations are absolute and the employer must prove that any particular employee meets every requirement before the employee will be deprived of the protection of [FLSA].”)); Bratt, 912 F.2d at 1069. It is undisputed that the salary requirement is 2 We have explained previously that the Secretary’s new regulations issued in 2004 do “not represent a change in the law.” In re Farmers Ins. Exch., 481 F.3d 1119, 1128 (9th Cir. 2007); see also Roe-Midgett v. CC Services, Inc., 512 F.3d 865, 870–71 (7th Cir. 2008) (noting that the new “general rule . . . merely restates the short test’s two ‘duties’ requirements” and that the “Secretary has characterized the promulgation of the new rules as an effort to ‘consolidate and streamline’ the dense and unwieldy regulatory text of the old regulations”). 8 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK satisfied. But because the underwriters’ duties go to the heart of Provident’s marketplace offerings, not to the internal administration of Provident’s business, see Bothell, 299 F.3d at 1126, Provident cannot prove that the mortgage underwriters qualify for the administrative exemption. B To satisfy the second requirement, an employee’s primary duty must involve office or “non-manual work directly related to the management policies or general business operations” of Provident or Provident’s customers. Bothell, 299 F.3d at 1125 (emphasis in original) (quoting 29 C.F.R. § 541.200). Said otherwise, “an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” 29 C.F.R. § 541.201(a). Courts of appeal commonly refer to this framework for understanding whether employees satisfy the second requirement as the “administrative-production dichotomy.” Its purpose is “to distinguish ‘between work related to the goods and services which constitute the business’ marketplace offerings and work which contributes to ‘running the business itself.’” DOL Wage & Hour Div. Op. Ltr., 2010 WL 1822423, 3 (Mar. 24, 2010) (quoting Bothell, 299 F.3d at 1127 (quoting Bratt, 912 F.2d at 1070)). In our own words, “[t]his requirement is met if the employee engages in ‘running the business itself or determining its overall course or policies,’ not just in the day-to-day carrying out of the business’ affairs.” Bothell, 299 F.3d at 1125 (quoting Bratt, 912 F.2d at 1070); see also Dalheim v. KDFW-TV, 918 F.2d 1220, 1230 (5th Cir. 1990) (describing the dichotomy as distinguishing between “employees whose MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 9 primary duty is administering the business affairs of the enterprise from those whose primary duty is producing the commodity or commodities, whether goods or services, that the enterprise exists to produce and market”). But the dichotomy “is only determinative if the work ‘falls squarely on the production side of the line.’” 69 Fed. Reg. 22122, 22141 (Apr. 23, 2004) (quoting Bothell, 299 F.3d at 1127).3 And this means the analysis can be complicated. In fact, in the last decade, two of our sister Circuits have assessed whether mortgage underwriters qualify for FLSA’s administrative exemption and have come to opposite conclusions. The Second Circuit held in Davis v. J.P. Morgan Chase & Co., 587 F.3d 529 (2d Cir. 2009), that “the job of underwriter . . . falls under the category of production rather than of administrative work.” Id. at 535. In contrast, the Sixth Circuit held recently that mortgage underwriters are exempt administrators, explaining that they “perform work that services the Bank’s business, something ancillary to [the Bank’s] principal production activity.” Lutz v. Huntington Bancshares, Inc., 815 F.3d 988, 995 (6th Cir. 3 See, e.g., Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 532 (2d Cir. 2009) (“The line between administrative and production jobs is not a clear one, particularly given that the item being produced—such as ‘criminal investigations’—is often an intangible service rather than a material good.”); Desmond v. PNGI Charles Town Gaming, LLC, 564 F.3d 688, 694 (4th Cir. 2009) (“Although the administrative- production dichotomy is an imperfect analytical tool in a service-oriented employment context, it is still a useful construct.”); Martin v. Indiana Michigan Power Co., 381 F.3d 574, 582 (6th Cir. 2004) (pointing out that the administrative-production dichotomy is not absolute); Reich v. John Alden Life Ins. Co., 126 F.3d 1, 9 (1st Cir. 1997) (“[A]pplying the administrative-production dichotomy is not as simple as drawing the line between white-collar and blue-collar workers.”). 10 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 2016). In disagreeing with the Second Circuit, the Sixth Circuit understood mortgage underwriters to perform “administrative work because they assist in the running and servicing of the Bank’s business by making decisions about when [the Bank] should take on certain kinds of credit risk, something that is ancillary to the Bank’s principal production activity of selling loans.” Id. at 993; see also id. at 995 (explaining that Sixth Circuit precedent focuses “on whether an employee helps run or service a business—not whether that employee’s duties merely touch on a production activity”).4 Given the undisputed facts presented in this case, we conclude that the Second Circuit’s analysis in Davis should apply. Provident’s mortgage underwriters do not decide if Provident should take on risk, but instead assess whether, given the guidelines provided to them from above, the particular loan at issue falls within the range of risk Provident has determined it is willing to take. Assessing the loan’s riskiness according to relevant guidelines is quite distinct from assessing or determining Provident’s business interests. Mortgage underwriters are told what is in Provident’s best interest, and then asked to ensure that the product being sold fits within criteria set by others. In Davis, the Second Circuit came to a similar conclusion: Underwriters . . . performed work that was primarily functional rather than conceptual. 4 The Lutz court did not cite this Circuit’s case law applying the administrative exemption—which has been endorsed by DOL in several documents. See, e.g., 69 Fed. Reg. at 22141 (quoting Bothell, 299 F.3d at 1127); DOL Wage & Hour Div. Op. Ltr., at 3 (Mar. 24, 2010) (citing Bothell, 299 F.3d at 1127). MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 11 They were not at the heart of the company’s business operations. They had no involvement in determining the future strategy or direction of the business, nor did they perform any other function that in any way related to the business’s overall efficiency or mode of operation. It is undisputed that the underwriters played no role in the establishment of [the Bank’s] credit policy. 587 F.3d at 535. We agree. C DOL’s codified examples of exempt administrative employees, including especially the descriptions of insurance claims adjusters and employees in the financial services industry, buttress our conclusion. 29 C.F.R. § 541.203(a), (b). Recently, in In re Farmers Ins. Exch., 481 F.3d 1119 (9th Cir. 2007), we considered whether claims adjusters of many varieties are exempt from FLSA’s overtime provisions. Id. at 1124. We relied heavily on DOL’s regulations and also on several DOL Opinion Letters that discussed claims adjusters. Id. at 1128–29. As we explained then, “the fact that the adjusters ‘are not merely pursuing a standardized format for resolving claims, but rather are using their own judgment about what the facts show, who is liable, what a claim is worth, and how to handle the negotiations with either a policyholder or a third-party’” was “[e]ssential to the DOL’s opinion.” Id. at 1128 (quoting at DOL Wage & Hour Div. Op. Ltr., at 4–5 (Nov. 19, 2002)). Specifically, the example describes duties such as “interviewing,” “inspecting property damage,” 12 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK “reviewing factual information,” “evaluating and making recommendations regarding coverage of claims,” “determining liability,” “negotiating settlements,” and “making recommendations regarding litigation.”5 29 C.F.R. § 541.203(a). These duties differ from the duties of Provident’s mortgage underwriters. The underwriters do not interview or inspect property, negotiate settlements or make litigation recommendations. They do review factual information and evaluate the loan product and consumer information and, in a sense, they assess liability in the form of risk, although that assessment is subject to guidelines that they do not formulate. See DOL Wage & Hour Div. Op. Ltr., at 2 (Oct. 29, 1985) (distinguishing appraisers from claims adjusters by pointing out that appraisers “merely inspect damaged vehicles to estimate the cost of labor and materials and to reach an agreed price for repairs . . . are guided primarily by their skill and experience and by written manuals of established labor and material costs”). The financial-services industry example also includes descriptors that do not correspond with the underwriters’ primary duty, which aims more at producing a reliable loan than at “advising” customers or “promoting” Provident’s financial products. See 29 C.F.R. § 541.203(b). Although mortgage underwriters do “collect[] and analyz[e] 5 In full, the example reads: “Insurance claims adjusters generally meet the duties requirements for the administrative exemption, whether they work for an insurance company or other type of company, if their duties include activities such as interviewing insureds, witnesses and physicians; inspecting property damage; reviewing factual information to prepare damage estimates; evaluating and making recommendations regarding coverage of claims; determining liability and total value of a claim; negotiating settlements; and making recommendations regarding litigation.” 29 C.F.R. § 541.203(a). MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 13 information regarding the customer’s income, assets, investments or debts,” and do sometimes “determin[e] which financial products best meet the customer’s needs and financial circumstances,” they do not “advis[e]” customers at all, nor do they “market[], servic[e] or promot[e] the employer’s financial products.”6 As the Department of Labor has noted, “[w]ork does not qualify as administrative simply because it does not fall squarely on the production side of the line.” DOL Wage & Hour Div. Op. Ltr., at 3 (Mar. 24, 2010). Moreover, the financial-services-industry example does not “create[] an alternative standard for the administrative exemption for employees in the financial services industry” and it “is not an alternative test, and its guidance cannot result in the ‘swallowing’ of the requirements of 29 C.F.R. § 541.200.” Id. at 8; see also Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1205, 1206–07 (2015) (holding that DOL’s decision to withdraw its 2006 opinion letter in its 2010 letter did not require notice-and-comment procedures because both were interpretive rules). DOL has also specifically analyzed mortgage loan officers and made clear that they “do not qualify as bona fide 6 In full, the regulation states: “Employees in the financial services industry generally meet the duties requirements for the administrative exemption if their duties include work such as collecting and analyzing information regarding the customer’s income, assets, investments or debts; determining which financial products best meet the customer’s needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing or promoting the employer’s financial products. However, an employee whose primary duty is selling financial products does not qualify for the administrative exception.” 29 C.F.R. § 541.203(b). 14 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK administrative employees” because they “have a primary duty of making sales for their employers.” DOL Wage & Hour Div. Op. Ltr., at 9 (Mar. 24, 2010). Mortgage underwriters are distinct from mortgage loan officers in the mortgage production process—most significantly because their primary duty is not making sales on Provident’s behalf. But they are not so distinct as to be lifted from the production side into the ranks of administrators. Thus, we conclude that where a bank sells mortgage loans and resells the funded loans on the secondary market as a primary font of business, mortgage underwriters who implement guidelines designed by corporate management, and who must ask permission when deviating from protocol, are most accurately considered employees responsible for production, not administrators who manage, guide, and administer the business. See Davis, 587 F.3d at 353 (“[W]e have drawn an important distinction between employees directly producing the good or service that is the primary output of a business and employees performing general administrative work applicable to the running of any business.”); DOL Wage & Hour Div. Op. Ltr., at *3 (Mar. 24, 2010) (quoting Davis, 587 F.3d at 353); see also In re Farmers Ins., 481 F.3d at 1129 (“We must give deference to the DOL’s interpretation of its own regulations.”). D The district court concluded that Provident underwriters performed work that related to “quality control,” such that it constituted “[w]ork directly related to management or general business operations,” within the meaning of 29 C.F.R. § 541.201(b). But this was a legal conclusion as to the MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 15 underwriters’ quality control function that was not supported by the record evidence. The underwriters’ statement of undisputed facts outlined several significant aspects of Provident’s quality control process. First, prior to closing, Provident used an outside company to perform quality control functions, primarily assessing for material deficiencies that affect salability. That quality control check pulls approximately five per cent of loans, and completely re-underwrites them. Second, a pre- closing quality control process generates reports that are provided to underwriters, and sends a monthly report to Provident’s Vice President of Mortgage Operations. Third, the loan servicing department performs post-closing quality control and completely underwrites ten per cent of loans. That department is not staffed by mortgage underwriters. Fourth, the internal audit department reviews the loan process annually. In recounting the undisputed facts, the district court’s opinion does not mention quality control, yet it made the legal conclusion that Provident’s underwriters qualify for the administrative exemption primarily because of their quality control duties. The district court mentioned that “Provident uses an outside company to perform quality control functions,” and “has an internal Corporate Loan Committee that completely re-underwrites 10% of the loans.” Without discussing the significance of those facts, however, the district court then stated that because the “underwriters ‘must apply Provident’s guidelines or lending criteria as well as agency guidelines . . . to determine whether [a] particular loan falls within the level of risk Provident is willing to accept . . . Provident has shown Plaintiffs’ primary duty included 16 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK ‘quality control,’” such that they are entitled to the administrative exemption. The record does not support this conclusion. And the district court made no finding as to the legal significance of the quality control functions that the record establishes are in place at Provident. Provident contends that because the underwriters do not work on a manufacturing production line and do not sell, they cannot fall on the production side of the administrative- production dichotomy. This assertion fails to take into account the mortgage underwriters’ role within Provident. Indeed, to permit the administrative exemption of an assembly line worker who checks whether a particular part was assembled properly—simply because that role bears a resemblance to quality control—would run counter to the essence of FLSA. But even if mortgage underwriters could not be cast by analogy as workers in an assembly line, the administrative-production dichotomy is not a perfectly determinative one, and the law requires that we construe the administrative exemption narrowly against the employer. Mortgage underwriters are essential to Provident’s business, as are loan officers and many others who do not qualify for FLSA’s administrative exemption. See Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 903 (3d Cir. 1991) (“[I]t is important to consider the nature of the employer’s business when deciding whether an employee is an administrative or production worker.”). However, the question is not whether an employee is essential to the business, but rather whether her primary duty goes to the heart of internal administration—rather than marketplace offerings. See Bothell, 299 F.3d at 1126. Mortgage MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 17 underwriters at Provident are not administrators or corporate executives; their tasks are related to the production side of the enterprise. E For these reasons, we must reverse the district court’s grant of summary judgment in favor of Provident and remand with instructions to enter summary judgment in favor of Gina McKeen-Chaplin and the mortgage underwriters. REVERSED.
73 F.3d 370 77 A.F.T.R.2d 96-320 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Robert D. PALEN; Judith K. Palen, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 95-70463. United States Court of Appeals, Ninth Circuit. Dec. 29, 1995. Before: SNEED, TROTT, and HAWKINS, Circuit Judges. 1 MEMORANDUM** 2 Taxpayers Robert and Judith Palen appeal pro se the United States Tax Court's dismissal of their petition for redetermination of deficiency based on lack of jurisdiction, which challenged the Commissioner of Internal Revenue's ("CIR") notice of deficiency for the tax years 1985 and 1986. We review de novo, Billingsley v. C.I.R., 868 F.2d 1081, 1084 (9th Cir.1989), and we affirm. 3 The CIR issued a notice of deficiency to Taxpayers on June 1, 1994. The 90 day period for filing a petition with the Tax Court expired on Tuesday, August 30, 1994. Taxpayers' petition was not received by the Tax Court until September 6, 1994 (97 days after the mailing of the notice of deficiency), and was postmarked on August 31, 1994 (91 days after the mailing of the notice of deficiency). The Tax Court concluded that the Taxpayers failed to timely file their petition pursuant to 26 U.S.C. Sec. 6213(a). 4 The timely filing of a petition for redetermination is a jurisdictional requirement. Shipley v. C.I.R., 572 F.2d 212, 213 (9th Cir.1977). Pursuant to 26 U.S.C. Sec. 6213, within 90 days after the notice of deficiency is mailed, a Taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. The CIR may notify the Taxpayer by certified or registered mail at the "last known address." 26 U.S.C. Sec. 6212(b)(2). "[A] notice mailed to the last known address is sufficient even if it is never received." King v. C.I.R., 857 F.2d 676, 681 (9th Cir.1988). Where mailing results in "actual notice" without prejudicial delay, it meets the requirements of section 6212. McKay v. C.I.R., 886 F.2d 1237, 1239 (9th Cir.1989). 5 Taxpayers contend that the CIR exhibited "willful neglect" in mailing the notice of deficiency to their previous address. The Taxpayers state, however, that they received the notice in "[l]ate June, 1994." Taxpayers, therefore, received "actual notice," see id., and failed to establish any prejudice arising from this delay. Moreover, Taxpayers do not contend that their petition was filed in a timely manner. Accordingly, the Tax Court did not err in dismissing their untimely petition for lack of jurisdiction. See Shipley, 572 F.2d at 213. 6 Taxpayers remaining contentions lack merit. First, they contend that the 150 day, instead of the 90 day, period which which applies under 26 U.S.C. Sec. 6213(a) when the notice of deficiency is addressed to a person outside the United States, should apply to them because they live in Hawaii. The term "United States", however, includes the states, see 26 U.S.C. Sec. 7701(a)(9), and Hawaii is a "state." 7 Second, the Taxpayers contend that the notice of deficiency was not "valid," because it applied income of their corporations' gross receipts as taxable income to them. Generally, we do not examine the administrative procedures underlying the CIR's notice of deficiency, unless "the notice of deficiency reveals on its face that the Commissioner failed to make a determination." Clapp v. Commissioner, 875 F.2d 1396, 1402 (1989) (explaining Scar v. Commissioner, 814 F.2d 1363 (9th Cir.1987)). Here, the CIR clearly made determinations, and although the Taxpayers disagree with the adjustment, the notice of deficiency is nonetheless "valid." Id. 8 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA G&E REAL ESTATE, INC., Plaintiff, v. Civil Action No. 14-418 (CKK) BRUCE B. MCNAIR and DAVID ROEHRENBECK, 1 Defendants. MEMORANDUM OPINION (February 27, 2020) Pending before the Court are Defendants Bruce B. McNair and David Roehrenbeck’s Motion for Summary Judgment, ECF No. 247, and Plaintiff G&E Real Estate, Inc.’s (“G&E”) Motion for Leave to File Exhibits Under Seal, ECF No. 249 (Sealed). Upon consideration of the briefing, 2 relevant legal authorities, and the relevant record, and in light of certain arguments raised in Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment, ECF No. 252, the Court shall allow G&E to file a sur-reply on a specific, narrow issue as outlined below to ensure that issue is fully briefed. In the meantime, the Court shall HOLD IN ABEYANCE Defendants’ Motion for Summary Judgment. Moreover, upon consideration of the 1 The Court adjusts the caption here to reflect that Plaintiff’s remaining claims are only against Defendants Bruce B. McNair and David Roehrenbeck. 2 The Court’s consideration has focused on the following: • Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 247; • Defs. Stmt. of Material Facts Not in Dispute (“Defs.’ Stmt.”), ECF No. 247-2; • Pl.’s Resp. in Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 250; • Pl.’s (1) Resp. to Defs.’ Stmt. of Material Facts Not in Dispute, and (2) Stmt. of Add’l Material Facts in Genuine Dispute, in Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Stmt.”), ECF No. 250-1; • Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Defs.’ Reply”), ECF No. 252; and • Defs.’ Resp. to Pl.’s Stmt. of Additional Material Facts in Genuine Dispute, ECF No. 252- 1. 1 briefing, 3 the relevant legal authorities, and the present record, the Court GRANTS G&E’s Motion for Leave to File Exhibits Under Seal. I. BACKGROUND The Court previously summarized the background to this case in its earlier resolution of motions for summary judgment, see G&E Real Estate, Inc. v. Avision Young–Washington, D.C., LLC, 168 F. Supp. 3d 147, 151–52 (D.D.C. 2016) (“G&E I”), ECF No. 138, and a motion to amend the complaint, see G&E Real Estate, Inc. v. Avision Young–Washington, D.C., LLC, 2018 WL 4680199, at 1–2 (D.D.C. Sept. 28, 2018) (“G&E II”), ECF No. 221, to which it refers the reader. The Court summarizes a few key procedural developments here. The Court earlier granted summary judgment on several claims in this case, leaving G&E with three remaining claims: a breach of contract claim against McNair, a breach of fiduciary duty claim against McNair, and a breach of contract claim against Roehrenbeck. See G&E I, 168 F. Supp. 3d at 168–69. The Court subsequently allowed Plaintiff to amend its complaint, resulting in the Second Amended Complaint, ECF No. 230. See G&E II, 2018 WL 4680199, at *7. Then, at the status hearing held on May 17, 2019, Defendants requested leave to file a second summary judgment motion based on allegations in the Second Amended Complaint. See May 17, 2019 Status Hearing Tr., ECF No. 248, at 3:24–7:6. The Court granted Defendants leave to file over G&E’s objection and set a briefing schedule. See id. at 7:24–8:5; May 20, 2019 Scheduling and Procedures Order, 3 The Court’s consideration has focused on the following: • Pl.’s Mot. for Leave to File Exs. under Seal (“Pl.’s Mot. to Seal”), ECF No. 249 (Sealed); • Defs.’ Resp. to Pl.’s Mot. for Leave to File Exs. under Seal (“Defs.’ Opp’n to Mot. to Seal”), ECF No. 251; and • Pl.’s Reply in Support of Mot. for Leave to File Exs. under Seal (“Pl.’s Reply”), ECF No. 253. In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f). 2 ECF No. 244. Defendants have since filed the instant Motion for Summary Judgment, ECF No. 247, which G&E opposes. II. LEGAL STANDARD A. Motion for Summary Judgment Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly 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 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id. In order to establish that a fact is or cannot be genuinely disputed, a party must (A) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of its position, or (B) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact,” the district court may “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). 3 When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in her favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251– 52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50 (internal citations omitted). B. Motion to Seal “[T]he decision as to access (to judicial records) is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” United States v. Hubbard, 650 F.2d 293, 316–17 (D.C. Cir. 1981) (quoting Nixon v. Warner Commc’ns., Inc., 435 U.S. 589, 599). In this Circuit, “the starting point in considering a motion to seal court records is a ‘strong presumption in favor of public access to judicial proceedings.’” EEOC v. Nat’l Children’s Ctr. Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)). In Hubbard, the D.C. Circuit identified six factors that might act to overcome this presumption: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, 4 and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. Nat’l Children’s Ctr., 98 F.3d at 1409 (citing Hubbard, 650 F.2d at 317–22). Accordingly, the Court considers each of these factors in the relevant analysis below. III. DISCUSSION The Court first discusses Defendants’ Motion for Summary Judgment before turning to Plaintiff’s Motion for Leave to File Exhibits Under Seal. A. Motion for Summary Judgment Defendants’ Motion for Summary Judgment advances several arguments why summary judgment should be granted in favor of Defendants on G&E’s remaining claims. In this Memorandum Opinion, the Court is concerned with one particular set of arguments involving whether certain rights underlying the remaining claims were properly assigned to G&E. Some additional background is necessary to understand these arguments. The Court presents this background in the light most favorable to G&E, the non-moving party, as the Court must in considering motions for summary judgment. Defendants McNair and Roehrenbeck originally worked for a real estate company called Grubb & Ellis. Defs.’ Stmt., ECF No. 247-2, at ¶¶ C–D; Pl.’s Stmt., ECF No. 250–1, at ¶¶ C–D, 27, 33–34. On February 13, 2012, McNair and Roehrenbeck resigned from Grub & Ellis. Defs.’ Stmt. ¶¶ C–D, X; Pl.’s Stmt. ¶¶ X, 1, 80. Subsequently, on February 20, 2012, Grub & Ellis filed for bankruptcy relief in the United States Bankruptcy Court for the Southern District of New York. Defs.’ Stmt. ¶ Z; Pl.’s Stmt. ¶ 7. As of April 2012, Grub & Ellis entered into a Second Amended and Restated Asset Purchase Agreement (“Asset Purchase Agreement”) with BGC Partners, Inc. (“BGC”) under which BGC obtained rights to certain of Grub & Ellis’s assets. Pl.’s Stmt. ¶ 8; see Defs.’ Stmt. ¶ BB. The 5 assets acquired included all beneficial rights under, and any claims based on or arising in connection with, Grub & Ellis’s operations. Pl.’s Stmt. ¶¶ 9–13; see Defs.’ Stmt. ¶ BB. G&E further claims that BGC assigned “the right” to the ANSER commission to G&E. Pl.’s Stmt. ¶ 19 (citing Ex. 31, Assignment of Claim). In light of these facts, one of Defendants’ primary arguments in their Motion for Summary Judgment is that BGC never had any rights to the ANSER commission under the Tenant Representation Agreement, and as a result, G&E cannot have been assigned any rights. Defs.’ Mot. at 2–3. This, Defendants argue, means that G&E has no basis to seek that portion of the commission as damages. The Court agrees that it previously found that the Tenant Representation Agreement was an executory contract at the time of the bankruptcy petition, and consequently, “that agreement was neither assumed by the bankruptcy estate nor assigned to BGC.” G&E I, 168 F. Supp. 3d at 160. BGC therefore “had no breach of contract claim that it could have assigned to G&E in the first instance,” and the Court granted summary judgment to ANSER on that breach of contract claim. Id. In response to Defendants’ arguments, however, G&E clarified its position. G&E, it explained, was not relying on the Tenant Representation Agreement in seeking the commission damages. Instead, it was relying upon McNair’s 2006 Employment Agreement with Grub & Ellis, and the breach of fiduciary duty claim, in seeking those damages. Pl.’s Opp’n at 22–23. In another portion of its brief, G&E contends that this Court already held that “BGC properly transferred its interest in the claims it acquired under the [Asset Purchase Agreement] to” G&E. Id. at 34. G&E cites to G&E I for this proposition. See id. (citing “ECF No. 138, 2/26/16 Order, at 16–20”). Defendants respond to this argument in their Reply, arguing that G&E “derived only a small subset of the rights purchased by BGC.” Defs.’ Reply at 4. The language of the Assignment 6 of Claim, Defendants contend, only extended to rights arising under the Tenant Representation Agreement. See id. Thus G&E has no rights other than those related to the Tenant Representation Agreement, which this Court found was an executory contract at the time of petition and that BGC had no rights under it that it could assign. See id. at 4–5. As this does not come to the Court on cross-motions for summary judgment, G&E had no chance to reply to this argument regarding the Assignment of Claim. The Court finds that further briefing from G&E, the non-moving party, on the assignment issue is necessary. For one, the Court does not agree with G&E that it previously found that BGC transferred these specific rights to G&E in the Assignment of Claim. In G&E I, the Court was concerned only with rights assigned to G&E under the Tenant Representation Agreement, and its opinion was limited to that context. See, e.g., G&E I, 168 F. Supp. 3d at 159 (specifically discussing assignment of rights to the Tenant Representation Agreement and quoting Assignment of Claim language); id. at 160 (“By that date, BGC had assigned Plaintiff G&E claims related to the Tenant Representation Agreement.”). As the Court did not address reliance upon any other agreements, it spoke only to the assignment of rights stemming from the Tenant Representation Agreement, and not to any rights stemming from any employment agreements or other rights, such as to the breach of fiduciary duty claim. Accordingly, reliance upon G&E I is unavailing. It is also far from clear that the Assignment of Claim assigned claims aside from those related to the Tenant Representation Agreement to G&E. G&E attached the Assignment of Claim as Exhibit 31 to its Opposition; Defendants admit that this is the Assignment of Claim. See Assignment of Claim, ECF No. 250-31; Pl.’s Stmt. ¶ 19; Defs.’ Resp. to Pl.’s Stmt. of Add’l Material Facts in Genuine Dispute, ECF No. 252-1, at 7 ¶ 19. The Assignment of Claim contains the following provision: 7 By their execution of this Agreement, BGC intends to assign its wholly-owned subsidiary, NGKF, all of G&E’s right, title and claim to, interest in, and entitlement to the Commission, and all of G&E’s right, title and claim to, and interest in, the Agreement (jointly, the “Assigned Matter”), and NGKF intends to accept the assignment thereof from BGC. Assignment of Claim, ECF No. 250-31, at ¶ D (emphasis added). The previous paragraph defines the rights obtained by BGC that are being assigned: Among the G&E intangible assets purchased by BGC was all of G&E’s right, title and claim to, interest in, and entitlement to receive payment of, the real estate commission earned in connection with the lease by Vornado/Charles E. Smith, L.P., to Analytic Services, Inc. (“Tenant”), of office space located in the Skyline Technology Center in Falls Church, Virginia (the “Commission”), pursuant to the written Exclusive Tenant Representation Agreement dated September 23, 2011, entered into by and between Tenant and G&E (the “Agreement”). Id. ¶ C (emphasis added). In other words, the Assignment of Claim specifies that BGC obtained rights to the commission “pursuant to the written Exclusive Tenant Representation Agreement.” Id. Construing these two provisions together, it is not entirely clear that BGC assigned to G&E any rights outside of those arising from the Tenant Representation Agreement. But because this issue arose in the Opposition and Reply, G&E did not have a chance to respond to Defendants’ arguments about the language of the Assignment of Claim. Accordingly, to ensure this issue is sufficiently briefed, the Court shall allow G&E to file a sur-reply on the following narrow issues: whether and how the rights that G&E seeks to vindicate under the employment agreement(s) and the breach of fiduciary duty claim were assigned to G&E. If G&E intends to rely upon the Assignment of Claim, G&E shall address, with citations to applicable law as appropriate, whether and how the specific language of the Assignment of Claim should be interpreted to have assigned those rights or claims to G&E. In the meantime, the Court shall hold in abeyance Defendants’ Motion for Summary Judgment. 8 B. Motion to Seal G&E further seeks to file under seal certain exhibits to its briefing and statement of facts related to Defendants’ Motion for Summary Judgment. These documents fall into two main categories: (1) documents produced in a related proceeding pending in Illinois and covered by a protective order in that case and (2) documents that Plaintiff has produced in this case that contain confidential business information, some of which has also been produced in a related proceeding in D.C. Superior Court and are covered by a protective order entered in that case. Pl.’s Mot. to Seal at 1. As to the first category of eighteen documents, G&E seeks leave to file the exhibits under seal to comply with the protective order in the Illinois case and to protect the confidentiality of the documents. See id. at 2–3. As to the second category of twelve documents, G&E seeks both to comply with the protective order in the D.C. Superior Court case (for six of the documents) and to protect confidential business information. See id. at 3–4. Defendants oppose this Motion, arguing primarily that there is no relevant protective order in this case and that G&E has not treated some of the documents as confidential when producing it to Defendants. See Defs.’ Opp’n to Mot. to Seal at 1–2. Defendants did not address the factors under United States v. Hubbard, as requested by the Court. See Aug. 7, 2019 Minute Order. Regardless, the Court agrees with G&E that the factors provided in Hubbard favor sealing these documents on the present record. The first factor is “the need for public access to the documents at issue,” and the second is “the extent of previous public access to the documents.” Nat’l Children’s Ctr., 98 F.3d at 1409. As G&E notes, these documents are related to a private business dispute and the public has not previously had access to these documents. Defendants do not offer any reason why there might 9 be public need for these documents and do not contend that there has been prior public access. These factors therefore weigh in favor of sealing. The third factor is “the fact that someone has objected to disclosure, and the identity of that person,” and the fourth factor is “the strength of any property and privacy interests asserted.” Id. Here, that person is G&E, the Plaintiff, who is party to protective orders in other disputes that appear to govern their use of the documents. Moreover, G&E has strong privacy interests in the business information contained in the documents. Defendants do not appear to argue otherwise. These factors also weigh in favor of sealing. The last two factors are “the possibility of prejudice to those opposing disclosure” and “the purposes for which the documents were introduced during the judicial proceedings.” Id. G&E seeks to include these documents in its opposition to Defendants’ Motion for Summary Judgment, in which Defendants seek summary judgment on all of G&E’s claims. It is understandably an pivotal motion in the litigation. Moreover, G&E may face prejudice if the information protected by the protective orders were to lose its confidentiality, or simply by revealing certain confidential business information to the public. Defendants do not suggest otherwise. Accordingly, the Court shall grant G&E’s Motion and allow G&E to file the exhibits under seal at this juncture. At a later date the documents may need to be filed with redactions. 10 IV. CONCLUSION For the foregoing reasons, the Court shall HOLD IN ABEYANCE Defendants’ Motion for Summary Judgment pending the sur-reply from G&E. The sur-reply should address the narrow issues identified above. Moreover, the Court shall GRANT G&E’s Motion for Leave to File Exhibits Under Seal on the present record. As noted above, at a later date the documents may need to be filed with redactions. An appropriate Order accompanies this Memorandum Opinion. Date: February 27, 2020 ______/s/______________________ COLLEEN KOLLAR-KOTELLY United States District Judge 11
In the United States Court of Appeals For the Seventh Circuit Nos. 98-1020 and 98-1095 REGINA SHEEHAN, Plaintiff-Appellee, Cross-Appellant, v. DONLEN CORPORATION, Defendant-Appellant, Cross-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 685--Morton Denlow, Magistrate Judge. Argued September 24, 1998--Decided March 18, 1999 Before CUMMINGS, BAUER and DIANE P. WOOD, Circuit Judges. CUMMINGS, Circuit Judge. Regina Sheehan was five months pregnant with her third child when she was fired by her employer, Donlen Corporation ("Donlen"), leading to this lawsuit under the Pregnancy Discrimination Act, 42 U.S.C. sec.2000e(k). Donlen is a family-owned business with about 100 employees that leases vehicles to corporate clients. Sheehan was hired in July 1991. She had previously worked for some other employers, but had not reported them all on her resume or application to Donlen. A year after she started, Sheehan became pregnant with her first child. Donlen did not then have an official maternity policy. Decisions about retention after maternity leave were made on a case-by-case basis. Zeno Wisniewski, her then-supervisor in the Customer Service Department, told her that he would not hold her job open when she went on maternity leave, but Donlen President Gary Rappeport countermanded this decision, telling Sheehan she was a "treasured employee." Sheehan’s 1992 performance evaluation rated her overall as "meeting requirements" or better, although she had had some conflict with Steve Anderson, another employee in the department. Wisniewski spoke to her about this difficulty but nonetheless wrote in her evaluation that Sheehan "sometimes comes across a bit tough to deal with, but [this is] merely perception rather than reality." On her return in September 1992, Sheehan was placed as an accounts manager in the Purchasing Department, where her duties mainly involved arranging the purchase of vehicles from dealers. Sheehan’s supervisor, Eileen Kelm, rated Sheehan as "meeting or above requirements" in her 1993 performance evaluation, in all areas except "teamwork," with respect to which there were personal conflicts with two other employees in Purchasing who had complained to several managers about Sheehan’s abrasiveness. In spring 1993, about six months after taking up the Purchasing assignment, Sheehan became pregnant with a second child. A few months later, she reported the pregnancy to Kelm and to Kelm’s boss, Brad Miller. Kelm expressed concern about how Sheehan’s work would be done while she was on maternity leave, and Kelm indeed had to put in extra time during Sheehan’s six-week leave in January and February 1994. This leave was covered by a newly instituted maternity policy at Donlen. On her return, Sheehan remarked on the volume of work and said, "Maybe I should go home and have another baby." Kelm said to her, "If you have another baby, I’ll invite you to stay home." In the spring of 1994 Sheehan became pregnant once more. She informed Kelm and the new Purchasing Department head Bill Graham in June. Kelm said, "Oh, my God, she’s pregnant again." Sheehan went on disability leave for three weeks, which was burdensome to Kelm. On Sheehan’s return in July, Kelm shook her head at Sheehan and said, "Gina, you’re not coming back after this baby." That month Sheehan was also placed in a "performance matrix," a management tool to improve employee productivity by setting goals and measuring performance. She was the only employee in her department placed in this program and was chosen because her job objectives were easily measurable. Sheehan expressed some concern to Kelm and to Graham that the goals had been set entirely by Kelm, without her participation. Kelm was upset that Sheehan had gone over her head to Graham and told him so. It is unclear precisely when the decision to fire Sheehan was made. Donlen claims that a decision was made in June by Graham, Kelm, and Suzanne Gutowski, Donlen’s human resources director, before any of them knew of her third pregnancy. But Sheehan and Donlen agree that those three people made a final determination in August 1994, when they knew she was pregnant. The firing was a mutual decision among these managers. Graham put off the firing until fall because he "needed her services during the busy summer season," when many businesses need cars. On September 13, 1994, Graham told Sheehan that she was fired, saying, "Hopefully this will give you some time to spend at home with your children." Donlen claims that Graham told Sheehan the decision had been made because Sheehan was confrontational. The following day, however, Graham told Sheehan’s co-workers in Purchasing that she had been fired because "[w]e felt that this would be a good time for Gina to spend some time with her family." Graham had fired only one other employee before then, Towanda Starling, who was also pregnant. Donlen continued Sheehan’s health insurance through the birth of the third child. Sheehan remains at home with her three small children, having found no other work. After obtaining her right-to-sue letter from the EEOC, Sheehan filed the employment discrimination lawsuit we now consider, asking nearly $700,000 in damages. It was tried by consent before Magistrate Judge Morton Denlow pursuant to Fed. R. Civ. P. 73, exercising jurisdiction under 28 U.S.C. sec. 636(4)(c)(1). A jury found Donlen liable for violation of the Pregnancy Discrimination Act/1 and awarded her $30,000 in back pay. The trial court entered judgment for Sheehan in that amount, also giving her $76,913.40 in attorneys’ fees ($4,350.40 for her first attorney and $72,563.00 for the firm that took over the case), and $10,000.00 in miscellaneous costs and interest, for a total of $116,913.40. At trial and after entry of the judgment, Donlen moved for judgment as a matter of law, Fed. R. Civ. P. 50, arguing that the evidence was legally insufficient. Donlen also challenged the trial court’s refusal to consider Donlen’s after-acquired evidence defense. Donlen appeals on these issues and on grounds of abuse of discretion in awarding attorneys’ fees. Sheehan cross-appeals the trial court’s ruling that she failed to mitigate her damages and asks us to enter judgment for her in the amount of $98,000 for lost wages and benefits. We affirm the judgment of the trial court. I. Donlen argues that the evidence presented at trial was legally insufficient to support judgment for Sheehan on liability for pregnancy discrimination. Our standard of review for a trial court’s denial of judgment as a matter of law is de novo. Sokol Crystal Products, Inc. v. DSC Communications Corp., 15 F.3d 1427, 1433 n.2 (7th Cir. 1994). To warrant judgment as a matter of law because of legal insufficiency of evidence, there must have been "no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party." Payne v. Milwaukee County, 146 F.3d 430, 432 (7th Cir. 1998). Attacking a jury verdict is a hard row to hoe. In assessing whether there was such a reasonable basis after a trial on the merits, this Court considers whether the totality of the evidence supports a verdict of intentional discrimination. Whether the plaintiff has made a prima facie case drops away after trial. Diettrich v. Northwest Airlines, Inc., No. 97- 2831, 1999 WL 69667, at 4 (7th Cir. Feb. 16, 1999). We will not disturb the jury verdict unless Donlen can show that "no rational jury could have brought in a verdict against [it]." EEOC v. G-K-G, Inc., 39 F.3d 740, 745 (7th Cir. 1994). Our inquiry "is limited to whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed," Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir. 1996) (internal citations omitted)--here, most favorable to Sheehan. In this case, the jury was presented with two radically different stories. According to Donlen, Sheehan was a contentious, difficult, rude, uncooperative, and argumentative employee, someone who regularly drove other employees to complain to management about her behavior and even reduced another employee to tears, and those are the reasons she was fired. Sheehan herself maintains that she was an acknowledgedly capable employee whose apparent roughness around the edges was tolerable but whose pregnancies, illegally, were not. The jury might rationally have believed Donlen, but it did believe Sheehan. There was a "reasonable basis in the record for [that] verdict." Accordingly, "we will not reweigh the evidence but will let the verdict stand." Knox v. State of Indiana, 93 F.3d 1327, 1332 (7th Cir. 1996). Evidence of discrimination may be direct or circumstantial. Graham’s remarks to Sheehan and to her co-workers at the time of the firing that she would be happier at home with her children provided direct evidence of discrimination, "evidence which in and of itself suggests" that someone with managerial authority was "animated by an illegal employment criterion." Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997). Even isolated comments may constitute direct evidence of discrimination if they are "’contemporaneous with the discharge or causally related to the discharge decision making process.’" Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 723 (7th Cir. 1998) (internal citations omitted). Direct evidence typically "relate[s] to the motivation of the decisionmaker responsible for the contested decision." Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir. 1997). Graham had managerial authority over Sheehan. His comments were contemporaneous with her firing. They related to his motivation for the decision. A reasonable jury might have accepted them as direct evidence of discrimination. Graham did not actually state in so many words that Sheehan’s pregnancy was a reason for firing her, but direct evidence of discrimination does not require "a virtual admission of illegality." Venters, 123 F.3d at 973. It would cripple enforcement of the employment discrimination laws to insist that direct evidence take the form of an employer’s statement to the effect that "I’m firing you because you’re in a protected group." Evidence of discriminatory motives must, it is true, have some relationship with the employment decision in question. Inappropriate but isolated comments that amount to no more than "stray remarks" in the workplace will not do. Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989) (citing Price Waterhouse v. Hopkins, 490 U.S. 228). However, "remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on illegal criteria will suffice as direct evidence of discrimination," even short of an admission of illegal motivation. Id.; see also Miller v. Borden, Inc., 1999 WL 55152, at 3 (7th Cir. Feb. 8, 1999); Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1164-1165 & nn.2-3 (7th Cir. 1993); Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir. 1990). Likewise, a remark need not explicitly refer to the plaintiff’s protected status (here pregnancy) for a reasonable jury to conclude that it is direct evidence of illegal motivation based on that status. Cf. Venters, 123 F.3d at 973 ("But the evidence need not be this obvious to qualify as direct evidence."). A reasonable jury might conclude that a supervisor’s statement to a woman known to be pregnant that she was being fired so that she could "spend more time at home with her children" reflected unlawful motivations because it invoked widely understood stereotypes the meaning of which is hard to mistake. We note with respect to stereotypes that pregnancy discrimination law is no different from other sorts of anti-discrimination law, despite Donlen’s assertion to the contrary. This Court said long ago that in Title VII, "Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (emphasis added). Discrimination on the basis of pregnancy is part of discrimination against women, and one of the stereotypes involved is that women are less desirable employees because they are liable to become pregnant. This was one of Congress’ concerns in passing the Pregnancy Discrimination Act. See Amending Title VII, Civil Rights Act of 1964, S. Rep. No. 95-331, 95th Cong., 1st Sess. at 3 (1977); Prohibition of Sex Discrimination Based on Pregnancy, H.R. Rep. No. 95-948, 95th Cong., 2d Sess. at 3 (1978) ("As the testimony received by this committee demonstrates, the assumption that women will become pregnant and leave the labor market is at the core of the sex stereotyping resulting in unfavorable disparate treatment of women in the workplace."). Finally, a reasonable jury would not be required to accept a proffered innocent construction of the remarks we are discussing, even if it might rationally have done so. See, e.g., EEOC v. Century Broadcasting Corp., 957 F.2d 1446, 1457 (7th Cir. 1992). In that case we held that a supervisor’s statements, for example, that a radio station wanted "new young sound" would support a conclusion of age discrimination, though the remarks might reasonably be subject to an "innocent" interpretation. Id. The circumstantial evidence in this case, like that in Futrell v. J.L. Case, 38 F.3d 342 (7th Cir. 1994) (age discrimination), though perhaps insufficient taken piece by piece, "[in] sum d[oes] permit a reasonable inference of discrimination." Id. at 346. The circumstantial evidence includes the comments of Sheehan’s direct supervisor Eileen Kelm: "If you have another baby, I’ll invite you to stay home"; "Oh, my God, she’s pregnant again"; and, "Gina, you’re not coming back after this baby." A rational jury need not have accepted innocuous constructions of these remarks offered by Donlen, for example, that Kelm was joking. See Century Broadcasting, 957 F.2d at 1457. In view of Kelm’s frustration at dealing with the volume of work during Sheehan’s pregnancy leaves and Kelm’s generally good evaluations of Sheehan’s work, it would have been reasonable for a jury to infer that Kelm, a decisionmaker in Sheehan’s termination, agreed that Sheehan was to be fired not because of personality conflicts or dissatisfaction with Sheehan’s work, but because she burdened Kelm with pregnancies and maternity leaves. The circumstantial evidence also includes the fact that the only other employee Graham had fired was also a pregnant woman, Towanda Starling. That Graham had not fired several women who did become pregnant goes only to the weight accorded this fact and does not show that the jury was irrational to conclude that he did fire Sheehan because she was pregnant. Donlen’s version of the story is that Sheehan was fired because she was a difficult employee and not because she was pregnant. The problems with this version are serious enough that a rational jury might have disbelieved Donlen. "The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123 (7th Cir. 1994) (reading Hicks as adopting a pretext-only and not a pretext-plus rule). We have said in regard to Hicks: "[I]mplicit in the [Supreme] Court’s holding is the notion that once the employee has cast doubt on the employer’s proffered reasons for the termination, the issue of whether the employer discriminated against the plaintiff is to be determined by the jury--not the court." Weisbrot v. Medical College of Wisconsin, 79 F.3d 677, 681-682 (7th Cir. 1996). A reasonable jury might have wondered, for example, why Donlen placed Sheehan in the performance matrix to evaluate and improve her productivity in July 1994 if, as Donlen claims, her supervisors had decided to fire her in June, supposedly before they knew she was pregnant. Likewise a rational jury might have found the claim about the date of the decision hard to square with human resources director Gutowski’s testimony that the decision was made in "approximately August." A rational jury might have found it hard to credit Donlen’s proffered reason for the decision, Sheehan’s purported abrasiveness and confrontational character, in view of Gutowski’s testimony, as to mitigation, that plaintiff was qualified for and should have applied for jobs requiring "strong interpersonal customer relations skills," "positive attitude," "outgoing personality," and a "pleasant service- oriented attitude." And a rational jury might have been troubled by inconsistencies in Kelm’s testimony as to whether there had been any specific complaints about Sheehan’s demeanor or in Graham’s testimony as to whether Sheehan had been argumentative with him or with Kelm or whether Kelm had indeed complained to him about Sheehan. These questions might raise in the mind of a rational jury the "suspicions of mendacity" which, together with the prima facie case Sheehan has certainly made, the Supreme Court has indicated might themselves suffice to show intentional discrimination. Hicks, 509 U.S. at 511. Since a rational jury might well have credited Sheehan’s version of the story over Donlen’s on the grounds set forth above, we reject Donlen’s claim that there can be no other explanation for the verdict in Sheehan’s favor but jury sympathy. That sort of argument is in any case disfavored. It is a bad sign for a litigant when she feels impelled to argue from "jury sympathy" in the absence of specific, concrete, credible evidence. Such an argument is often an indication of desperation. Our system of civil justice differs from the British and continental models, where juries are not used in civil cases, in being based on the idea that "the jury is well-equipped to evaluate the evidence and use its good ’common sense’ to come to a reasoned decision." Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 833 (D.C. Cir. 1988). As Chief Justice Thomas Cooley of Michigan remarked over a century ago: The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal, because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a "common-sense view" of a set of circumstances, involving both act and intent, than any single man, however pure, wise, and eminent he may be. People v. Garbutt, 17 Mich. 9, 27 (1868) (quoted in United States ex rel. Toth v. Quarles, 350 U.S. 11, 18 n.10). Tocqueville observed in 1835 that the jury plays an essential role in a democracy, legitimating outcomes and educating the people in the law. See 1 Alexis de Tocqueville, Democracy in America 334, 337 (Schocken ed., 1st ed. 1961) (quoted in Powers v. Ohio, 499 U.S. 400, 407) (The jury is a body that "invests the people . . . with the direction of society. . . . [It is] one of the most efficacious means for the education of the people which society can employ."). For all these reasons--the long-established role of and respect for the jury in the American system of civil justice, together with the sound basis in policy upon which it is premised--there are high barriers to defeating a jury verdict properly rendered. We decline to make an exception for employment discrimination cases. We have said that there is no basis for imposing "stricter scrutiny" of jury verdicts in employment discrimination cases than others because juries in such cases are purportedly "especially sympathetic to plaintiffs in those cases." G-K-G, 39 F.3d at 745. "The suggestion that the scope of appellate review should vary with the judge’s assessment of the probable direction of jury bias has no basis in established law, and if a party wants us to innovate, it had better give us a [more] solid[ ] foundation than suspicion." Id. In fact, we have said that an appeals court must be "particularly careful in employment discrimination cases to avoid supplanting [its] view of the credibility or the weight of the evidence for that both of the jury (in its verdict) and the judge (in not interfering with the verdict.)." Emmel, 95 F.3d at 630 (internal citations omitted). "It is the jury’s job to weigh the evidence, not ours." Knox, 93 F.3d at 1337. We are not "some kind of superjury, from whom losing parties can get a second bite at the apple." Id. at 1336. Accordingly, we decline to enter judgment as a matter of law in favor of the defendant Donlen Corp. on grounds of legal insufficiency of the evidence. II. Donlen also appeals the trial court’s ruling that Donlen’s after-acquired evidence defense failed as a matter of law. Under this defense, after-acquired evidence of an employee’s misconduct may limit damages. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 361-362. An employer may be found liable for employment discrimination, but if the employer later-- typically in discovery--turns up evidence of employee wrongdoing which would have led to the employee’s discharge, then the employee’s right to back pay is limited to the period before the discovery of this after-acquired evidence. Id. at 361. Donlen argued that Sheehan had falsified her job application by leaving several jobs off her resume and not explaining that she had been fired from one of them. Sheehan would have been fired when the company became aware of these facts, Donlen said, and so Donlen should not be liable for backpay from the date of their discovery. We review the determination of the trial court on the after-acquired evidence issue de novo, Willis v. Marion County Auditor’s Office, 118 F.3d 542, 545 (7th Cir. 1997), but we review the trial court’s factual findings for clear error. Fed. R. Civ. P. 52(a). In deciding the motion against Donlen, the trial court reasoned, first, that there was no falsification. It found that the application and the resume were separate documents and the omissions were made only on the resume, no job history at all being provided on the application; and, moreover, that there was no evidence Sheehan had been fired from those jobs. This factual finding is not clearly erroneous, that is, it is not one that leaves "’the reviewing court on the entire evidence . . . with the definite and firm conviction that a mistake has been committed,’" whether or not the finding is one we would necessarily have made ourselves. Anderson v. City of Bessemer, N.C., 470 U.S. 564, 573 (internal citations omitted). The record will sustain the interpretation the trial court placed on the facts surrounding the application and the resume. The trial court reasoned, second, that there was no causation, since it was not disputed that no one in the history of Donlen had ever been fired for falsification of a resume. If Donlen cannot show by a preponderance of the evidence that the after-acquired evidence would have led to her termination, it has not made out the defense. See McKennon, 513 U.S. at 362-363. As the Ninth Circuit has said, "the inquiry focuses on the employer’s actual employment practices, not just the standards established in its employee manuals, and reflects a recognition that employers often say they will discharge employees for certain misconduct while in practice they do not." O’Day v. McDonnell-Douglas Helicopter Corp., 79 F.3d 756, 759 (9th Cir. 1996). "Proving that the same decision would have been justified . . . is not the same as proving that the same decision would have been made." Price Waterhouse, 490 U.S. at 252. In absence of further evidence that the policy actually would have been applied, Donlen’s adversion to its stated policy is therefore insufficient to carry its burden of persuasion on the after-acquired evidence defense. III. Donlen appeals the trial court’s award of $72,563.00 in attorneys’ fees to Sheehan’s law firm. We review the award of attorneys’ fees for abuse of discretion. Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1351 (7th Cir. 1995). A trial court is given "wide discretion" in fashioning reasonable attorneys’ fees. Alexander v. Gerhart Enterprises, Inc., 40 F.3d 187, 194 (7th Cir. 1994). Two requirements must be met for the plaintiff to recover attorneys’ fees in a civil rights case. First, the plaintiff must be the "prevailing party," which requires that a plaintiff obtain at least some relief on the merits, see Farrar v. Hobby, 506 U.S. 103, 109, a condition which is clearly met here by the $30,000 jury verdict for Sheehan. Second, the attorneys’ fees awarded must be reasonable. See Alexander, 40 F.3d at 194. Donlen’s arguments that Sheehan’s are not reasonable boil down to the claims that her attorneys billed too many hours at too high a rate given the simple nature of her claim and that she recovered about a third of what she now appeals for. In view of the great scope of discretion for the trial court and "the desirability of avoiding frequent appellate review of what are essentially factual matters," Leffler v. Meer, 936 F.2d 981, 984-985 (7th Cir. 1991), Donlen’s argument that the trial judge abused his discretion is unpersuasive. Plaintiff’s attorneys did a thoroughly professional and able job in a difficult sort of case. We do not fault the quality of Donlen’s representation. A case like this can go either way. Nonetheless, a plaintiff risks the likelihood, given the low success rate of employment discrimination cases,/2 of bearing her own attorneys’ fees and at least the possibility of being stuck with the employer’s attorneys’ fees. It is, therefore, rational, and so reasonable, for a plaintiff to encourage her attorneys to be thorough. The district judge’s review of the factual circumstances, which already involved some reduction of these fees, supports our conclusion. We find no abuse of discretion. Donlen’s argument that Sheehan’s attorneys’ fees should be reduced because Sheehan’s damages were much smaller than she hoped is meritless. This court has repeatedly rejected the notion that the fees must be calculated proportionally to damages. Alexander, 40 F.3d at 194; Wallace v. Mulholland, 957 F.2d 333, 339 (7th Cir. 1992). The principle applies equally to purported disproportionality between the relief requested and that received. IV. Sheehan cross-appeals the trial court’s denial of her motion for judgment as a matter of law on Donlen’s affirmative defense that she failed to mitigate her damages. Failure to mitigate is an affirmative defense. The employer bears the burden of persuasion, EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir. 1990), and must show that the plaintiff was not reasonably diligent in seeking other employment and that there was a reasonable chance that plaintiff might have found a comparable position. Wheeler v. Snyder Buick, 794 F.2d 1228, 1234 (7th Cir. 1986). Sheehan presented uncontroverted evidence that she suffered $98,000 in damages, but she was awarded only $30,000. Once again we review the judgment de novo and consider whether, on the totality of evidence, a rational jury could have arrived at the challenged verdict. See Emmel, 95 F.3d at 629. Sheehan found no other employment in the three years between her termination at Donlen and the trial. She was an undisputedly qualified employee with a long and hitherto substantially unbroken work history. Evidence was given that comparable jobs were available. A rational jury had a legally sufficient basis to conclude that Sheehan failed to mitigate her damages. It might rationally have believed that she had done so, but it apparently did reasonably believe that she had not. Affirmed. FOOTNOTES /1 The key relevant provision of the Act states: "[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . . " 42 U.S.C. sec. 2000e(k). /2 "[T]he success rate for employment discrimination plaintiffs nationwide was only twenty-two percent . . . [a] percentage [that] has remained relatively constant into the 1990s. . . . [I]n most tort-type cases, [by contrast], plaintiffs tend to approximate a success rate . . . of [about] fifty percent." Michael Selmi, The Value of the EEOC: Reexamining the Agency’s Role in Employment Discrimination Law, 57 Ohio St. L.J. 1, 41 (1996).
Court of Appeals Sixth Appellate District of Texas JUDGMENT In the Matter of Y.G., a Juvenile Appeal from the 272nd District Court of Brazos County, Texas (Tr. Ct. No. 94-J- No. 06-15-00050-CV 2015). Memorandum Opinion delivered by Justice Moseley, Chief Justice Morriss and Justice Burgess participating. As stated in the Court’s opinion of this date, we find that the motion of the appellant to dismiss the appeal should be granted. Therefore, we dismiss the appeal. We note that the appellant has adequately indicated her inability to pay costs of appeal. Therefore, we waive payment of costs. RENDERED OCTOBER 7, 2015 BY ORDER OF THE COURT JOSH R. MORRISS, III CHIEF JUSTICE ATTEST: Debra K. Autrey, Clerk
456 Pa. 301 (1974) Sexton et al., Appellants, v. Stine. Supreme Court of Pennsylvania. Argued January 21, 1974. May 22, 1974. Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. Eugene F. Zenobi, with him Alan Linder and J. Richard Gray, for appellants. Gordon A. Roe, Solicitor for York County, with him Edward H.H. Garber, Solicitor for Clerk of Courts, for appellees. OPINION BY MR. CHIEF JUSTICE JONES, May 22, 1974: Appellants were complaining witnesses[1] in two criminal assault cases presented to York County Grand 302 Jury in July of 1972. After considering the evidence, the grand jury dismissed both cases and imposed the costs of prosecution on appellants pursuant to Section 62 of the Act of March 31, 1860, P.L. 427, 19 P.S. § 1222, which provides: "In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their return or verdict; and whenever the jury shall determine as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days." Appellants thereupon filed this class action in equity against appellee Clerk of Courts of York County seeking (1) a declaratory judgment regarding the constitutionality of the above statute and (2) an injunction against the enforcement of said statute.[2] Subsequently, the County of York was added as a co-defendant. Following the 303 filing of various other pleadings, a hearing was conducted and the Chancellor filed a decree nisi with an accompanying opinion discussing the merits of appellants' contentions and dismissing the complaint.[3] Both parties[4] filed exceptions which were dismissed by the court en banc on April 16, 1973. This direct appeal follows from that decree. Although the lower court's opinion goes to the merits of appellants' constitutional attacks on the statute, we are of the opinion that an adequate legal remedy exists and, therefore, that this case does not lie in equity.[5] The legal remedies available to appellants include: (1) petitioning the court for remission of costs and (2) challenging the validity of the statute when the county authorities seek to collect the costs imposed.[6] 304 Before discussing these alternative remedies, however, we must deal briefly with a related argument raised in appellants' supplemental brief. Appellants point to our decision in Friestad v. Travelers Indemnity Co., 452 Pa. 417, 306 A. 2d 295 (1973), as supportive of equity jurisdiction in this case. However, their reliance on Friestad in this regard is misplaced. In Friestad we held that the existence of another remedy not statutorily created does not necessarily preclude a declaratory judgment but is only one factor to be considered by the court "in its discretionary determination of whether a declaratory judgment would lie." 452 Pa. at 425, 306 A. 2d at 299. However, we are not presently considering the propriety of the declaratory relief sought by appellants. Rather, we are concerned 305 here with the propriety of equity jurisdiction a determination which is distinct and independent from that dealing with the propriety of a declaratory judgment. It is quite possible that a case might properly be the subject of a declaratory judgment and still not lie in equity. Thus, the presence of appellants' claim for declaratory relief has no bearing on our decision that equity does not lie in the present case. Finally, we can perceive no reason why appellants' constitutional arguments cannot be raised in either of the two procedures heretofore mentioned. Appellants contend that to petition the court for remission of costs would be inadequate since the standard for overturning the grand jury's determination has been the "abuse of discretion" standard. Commonwealth v. Kocher, 23 Pa. Superior Ct. 65 (1903). Nevertheless, the "abuse of discretion" standard does not preclude raising broad constitutional arguments which attack the very statute from which the grand jury derives its authority. Since these types of arguments were raised by appellants here,[7] they may be adequately litigated by petitioning the court for remission of costs. In addition, the second procedure mentioned above also provides a means for appellant to raise his arguments.[8] This Court has held in a similar situation that the availability of such opportunity to raise constitutional arguments in another proceeding precludes entertaining *306 a suit in equity to enjoin enforcement of a statute. See Merrick v. Jennings, 446 Pa. 489, 288 A. 2d 523 (1972). We can see no reason for distinguishing that decision from the present situation. The decree of the court below dismissing appellants' complaint is hereby affirmed without prejudice to appellants in their pursuit of appropriate remedies. Each party pay own costs. NOTES [1] Appellant Rita Sexton personally filed criminal charges against her alleged attacker. While the charges in the other criminal matter were filed by a member of the York City Police Force, they were based on information supplied by appellant Willie Mae Mosley. No issue has been made of the latter's lack of formal responsibility for the complaint and we will not raise such an issue sua sponte. [2] The Attorney General was advised of the constitutional attack on the statute but declined to intervene. [3] It should be noted that the lower court expressly declined to rule on the propriety of the class action in this case despite appellee's preliminary objections on that point. [4] Appellees excepted to the Chancellor's failure (1) to rule the class action inappropriate, (2) to dismiss on the basis of adequate remedy at law and (3) to dismiss because of failure to join all necessary and indispensable parties. [5] The only basis for our jurisdiction in this matter is section 202 of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, Art. II, § 202, 17 P.S. § 211.202 (Supp. (1973), which provides for direct appeal to this Court from the courts of common pleas of actions or proceedings in equity. Thus, had this matter been handled through the proper channels indicated in this opinion, this Court would not have been vested with direct appellate jurisdiction. [6] The parties entered into the following stipulation regarding the procedures followed by the Clerk of Courts in collecting costs imposed by the grand jury in situations such as the present one: 1. In the event that the Grand Jury of York County, Pennsylvania, orders costs of prosecution to be placed on the prosecutor or prosecutrix (hereinafter "person"), the Clerk of Courts of York County, Pennsylvania (hereinafter "clerk") notifies the person of same by form letter to appear before him within a specified time, and makes arrangements with him to pay such costs. The letter further threatens attachment, arrest and imposition of additional costs for failure to so appear. 2. If the person fails to appear before the Clerk, the Clerk requests that the Court issue an attachment. 3. If the person appears before the Clerk and refuses to pay said costs, the Clerk either arranges a court hearing and so notifies the person, or requests that the Court issue an attachment for said person. 4. If the person appears before the court and alleges that he is unable to pay said costs, the Clerk may (a) arrange a payment schedule without necessity of a court hearing; (b) request the court to issue an attachment; or (c) set up a court hearing and so notify the person of said hearing. 5. If a hearing is held, the court may dispose of the matter by: ordering (a) immediate payment of costs; (b) periodic payments to the Clerk; (c) remission of the costs; or (d) commitment to jail. 6. If the person fails to pay said costs following an order of court, the Clerk requests that the Court order an attachment issued. It is apparent that this procedure affords persons in appellants' position an opportunity to have a judicial determination of legal issues prior to the actual collection of costs. [7] Appellants attack the statute as being unconstitutional for the following reasons: (1) it constitutes a chilling effect upon their first amendment right to petition the government for redress of grievances; (2) it constitutes a chilling effect upon their due process right to access to the courts; (3) it constitutes an impermissible classification based on wealth in violation of equal protection; and (4) it is void for vagueness. [8] Clearly, appellants would have opportunity to raise their constitutional objections before a court when the Clerk of Courts seeks to collect the costs imposed. See note 6 supra.
342 F.2d 362 26 A.L.R.3d 596 WORLD BRILLIANCE CORPORATION, Petitioner-Appellee,v.BETHLEHEM STEEL COMPANY, Appellant. No. 195, Docket 29142. United States Court of Appeals Second Circuit. Argued Nov. 10, 1964.Decided March 2, 1965. Arthur M. Becker, New York City and Washington, D.C. (Nixon, Mudge, Rose, Guthrie & Alexander, New York City, of counsel), for petitioner-appellee. Cravath, Swaine & Moore, New York City (Allen F. Maulsby, Harry H. Voigt, Robert G. Fisher, New York City, of counsel), for appellant. Before SWAN, WATERMAN and MOORE, Circuit Judges. WATERMAN, Circuit Judge: 1 On August 15, 1956, Bethlehem Steel Company entered into a contract, later assigned by the other party to World Brilliance Corporation, to build the vessel Princess Sophie. The contract guaranteed World against defects discovered within six months after delivery of the vessel, and it provided for arbitration of 'any dispute or difference arising between the parties * * * as to any matter or thing arising out of or relating to' the contract. The vessel was delivered on May 18, 1959. World reported numerous alleged defects to Bethlehem within the next six months, but most of these were settled without resort to arbitration. As for the remaining alleged defects, first reported on July 27, 1959, the parties are in almost total disagreement about the way in which World's complaints were handled. It is clear, however, that World made a demand for arbitration on April 5, 1962, and that Bethlehem refused to participate in the selection of the neutral member of the panel. 2 On April 8, 1964, World petitioned the United States District Court for the Southern District of New York pursuant to Section 4 of the Federal Arbitration Act, 9 U.S.C. 4, asking for an order compelling Bethlehem to proceed to arbitration according to the terms of the contract. The petition gave World's version of the dealings between the parties concerning the unresolved claims under the six months' guaranty clause of the contract. Bethlehem filed an answer which, insofar as is pertinent here, alleged that World was guilty of laches in bringing the petition and also had waived its rights under the arbitration clause. The allegations were supported by affidavits. Bethlehem demanded a jury trial in connection with these defenses. 3 Judge Cooper, in two memorandum decisions, ruled that the issue of laches was to be decided by the court rather than by a jury, that the facts pertaining to the issue were 'hotly contested' by the parties, and that Bethlehem had not sustained its burden of proving that World unreasonably and prejudicially delayed in bringing the petition. Judge Cooper also ruled, by implication, that the issue of waiver was to be decided by the arbitrators rather than by the court. Consequently, he ordered Bethlehem to proceed to arbitration. Bethlehem appeals from this order, arguing that it was entitled to a jury trial on the issues of laches and waiver, or, alternatively, that at least it was entitled to a hearing before the judge where it would have opportunities to present oral testimony on its behalf and to cross-examine World's witnesses with reference to these issues. 4 Our first inquiry is directed to whether the issue of waiver was correctly left to the arbitrators, or whether it should have been decided by the district court. 5 The proper approach to this question has been charted with admirable precision by Judge Medina in Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2 Cir. 1959), cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960) (hereinafter cited as Robert Lawrence). In that case the district court had implicitly ruled that under the Federal Arbitration Act a defense of fraud in the inducement should be decided by the court rather than by the arbitrators. In reversing this ruling Judge Medina said: 6 'It would seem to be necessary to answer the following questions before we can decide to affirm or reverse the order appealed from: (1) is there anything in the Arbitration Act or elsewhere to prevent the parties from making a binding agreement to arbitrate * * * a dispute that there had been fraud in the inception of the contract; (2) is the exception of Section 2, 'save upon such grounds as exist at law or in equity for the revocation of any contract' applicable * * ; and (4) is the arbitration clause broad enough to cover the charge of fraud.' Id. at 409. 7 Taking these questions in reverse order, we hold that the arbitration clause in the present case was clearly broad enough to cover the defense of waiver. As Judge Medina said of the arbitration clause in Robert Lawrence, supra, at 412, 'it would be hard to imagine an arbitration clause having greater scope than the one before us.' See In the Matter of Kinoshita & Co., 287 F.2d 951, 953 (2 Cir. 1961), in which Judge Medina ruled that an arbitration clause very similar to ours would easily encompass a dispute over fraud in the inducement. Moreover, 'we fail to perceive any rational basis for thinking that the issue is of such a character that only the courts can resolve it.' Robert Lawrence, supra, 271 F.2d at 412. If the parties would entrust to arbitrators the defense of fraud in the inducement, they would also entrust to arbitrators the defense of waiver, which is not a bit more 'legalistic.' 8 Furthermore, we hold that the exception in Section 2 of the Act, which makes a commercial arbitration agreement valid and enforceable 'save upon such grounds as exist at law or in equity for the revocation of any contract,' is not applicable to the defense of waiver. 'Revocation' does not, in this setting, refer to annulment by the parties themselves of an otherwise valid and enforceable contract. It applies only to cases in which the courts will step in and rescind the agreement, for reasons such as fraud, duress, or undue influence. Cf. Robert Lawrence, supra, at 410-411. 9 Finally, we hold that nothing in the Act prevents the parties from making a binding agreement to arbitrate the defense of waiver. Section 4 of the Act provides: 10 'If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. * * Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, * * * demand a jury trial of such issue * * .' 11 Bethlehem argues that these provisions apply to the defense of waiver, because waiver 'un-makes' the arbitration agreement or constitutes a 'failure, neglect, or refusal' by the petitioner (World) to perform the same. 12 The claim that a defense of waiver raises an issue relating to 'the making of the arbitration agreement' stretches the language of the statute beyond tolerable limits. Cf. Robert Lawrence, supra, at 411. Compare El Hoss Eng'r & Transp. Co. v. American Independent Oil Co., 289 F.2d 346 (2 Cir.), cert. denied, 368 U.S. 837, 82 S.Ct. 51, 7 L.Ed.2d 38 (1961). As for the phrase 'failure, neglect, or refusal to perform the same,' its meaning is clarified by the opening words of Section 4: 13 'A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court * * for an order directing that such arbitration proceed in the manner provided for in such agreement.' 14 By repeating the words 'failure, neglect, or refusal' in the clauses, quoted above, providing for a judicial disposition of certain issues, Congress intimated that it was only the failure 'of another,' the respondent (Bethlehem), which would be subject to adjudication. RFC v. Harrisons & Crosfield, Ltd., 204 F.2d 366, 368, 37 A.L.R.2d 1117 (2 Cir.), cert. denied, 346 U.S. 854, 74 S.Ct. 69, 98 L.Ed. 368 (1953). Here, the failure to arbitrate, alleged defensively by the respondent (Bethlehem), was the failure of the petitioner (World) itself. 15 Nothing else in Section 4, or elsewhere in the Act, expressly bars enforcement of an agreement to arbitrate the defense of waiver in a suit brought under Section 4. Nor should such a bar be inferred on any but the strongest grounds. As Judge Medina stated in Robert Lawrence, supra, 271 F.2d at 410: 16 'Any doubts as to the construction of the Act ought to be resolved in line with its liberal policy of promoting arbitration both to accord with the original intention of the parties ('i.e. a speedy and relatively inexpensive trial before commercial specialists') and to help ease the current congestion of court calendars.' 17 It is true that there are cases in this circuit which look the other way on the problem before us: Farr & Co. v. Cia. Intercontinental de Nav. de Cuba, 243 F.2d 342, 348 (2 Cir. 1957); Nortuna Shipping Co. v. Isbrandtsen Co., 231 F.2d 528 (2 Cir.), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956). However, in the former case the arbitration agreement was narrower than ours, and in neither case was the question of who should determine the defense of waiver brought to the court's attention. Much more indicative of current attitudes regarding the arbitrability of so-called 'procedural issues,' in disputes affecting commerce, are three cases arising under Section 301 of the Labor-Management Relations Act which were decided within the last two years: John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 555-559, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Rochester Tel. Corp. v. Communication Workers of America, 340 F.2d 237 (2 Cir. 1965); Carey v. General Elec. Co., 315 F.2d 499, 501-504 (2 Cir. 1963), cert. denied, 377 U.S. 908, 84 S.Ct. 1162, 12 L.Ed.2d 179 (1964). In each case the procedural issue was sent to the arbitrators, despite strong objections by one of the parties. 18 Our second inquiry is directed to whether the issue of laches should have been determined by a jury or judge after a full hearing with opportunities for oral testimony and cross-examination, or whether the issue was properly decided by the district court on the motion papers alone.1 19 Section 6 of the Act provides: 'Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.' The only express provisions to the contrary are in Section 4, as quoted above. We have already held that these provisions do not apply to the issue of waiver, and for the same reasons we now hold that they do not apply to the issue of laches. This result accords with the policy of Section 6, which is to expedite judicial treatment of matters pertaining to arbitration. S.Rep.No.536, 68th Cong., 1st Sess. (1924); H.R.Rep.No.96, 68th Cong., 1st Sess. (1924). Such a policy would hardly be advanced by affording a jury trial on the issue of laches, an issue traditionally decided by a judge, sitting in equity without a jury.2 20 Since Section 4 of the Act does not apply to the defense of laches, the issue is to be heard as 'motions' are, rather than by 'trial.' Motions may be decided wholly on the papers, and usually are, rather than after oral examination and cross-examination of witnesses. See Fed.R.Civ.P. 56. In view of the policy of Section 6, described above, there was particular justification for choosing to follow such a simplified procedure in the present case. A district court may, in its own discretion, order a trial-like hearing of the issue of laches, but under the Federal Arbitration Act it is not an abuse of discretion for a district court, as here, to decline to do so. 21 Affirmed. 1 Because neither party argues that the issue of laches should have been left to the arbitrators, we find it unncessary to examine the authorities on this question 2 The original version of Section 4 did not, as Bethlehem contends, provide for a jury trial of issues exclusively equitable
386 So.2d 538 (1980) Clifford WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee. No. 50666. Supreme Court of Florida. June 12, 1980. Rehearing Denied August 26, 1980. 539 Margaret Good, Asst. Public Defender, Tallahassee, for appellant. Jim Smith, Atty. Gen. and Patti L. Englander, Asst. Atty. Gen., Tallahassee, for appellee. PER CURIAM. Appellant Clifford Williams, Jr. was convicted of murder in the first degree and attempted murder in the first degree. The trial judge, choosing not to follow the jury's recommendation of life imprisonment, imposed a sentence of death for the murder and a sentence of thirty years for the attempted murder. Jurisdiction vests in this Court pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the convictions but vacate the death sentence.[1] Nina Marshall,[2] the victim of the attempted murder and the prosecution's star witness, testified that she and the murder victim, Jeannette Williams,[3] shared a bedroom in an apartment at 1550 Morgan Street, Jacksonville, Florida. Nathan Myers,[4] and occasionally appellant, occupied the other bedroom. There were three sets of keys to the apartment; Ms. Marshall and Ms. Williams shared one set, Myers and appellant had the other two. Ms. Marshall and Ms. Williams went to bed shortly before 11:30 p.m. on the night of the murder. The door to the apartment was locked. Ms. Marshall rolled four marijuana joints; Jeannette smoked two of them, Nina one and a half. Marshall testified that she did not finish the second joint because "the reefer wasn't any good. It didn't make you high." The women fell asleep while watching the late movie. Ms. Marshall was first awakened by the clicking sound of the front door locks. Assuming that Myers was entering the apartment, Marshall quickly fell back asleep. She awoke the second time to the sound of gunfire and realized that she and Jeannette had been shot. Ms. Marshall testified that she looked toward the front of the room and saw Clifford Williams and Nathan Myers standing on either side of the television set. 540 Ms. Marshall waited until her assailants had left and then struggled bleeding out of the apartment. She hailed a passing motorist who took her to the hospital. There she wrote on a piece of paper the names Clifford Williams, Nathan Myers and Jeannette Williams, and the address 1550 Morgan Street. During the sentencing phase of the trial the prosecution offered no evidence in aggravation against appellant, and the defense offered no evidence in mitigation. The court, relying on the facts adduced at trial and the presentence investigation report, found four aggravating circumstances offset by no mitigating circumstances, which in its view compelled a sentence of death. Appellant presents six issues for our review, two of which do not merit extended discussion. He first asserts error in the court's failure to excuse an allegedly prejudiced juror. The trial judge heard testimony in chambers and properly concluded that no prejudice had been demonstrated. Appellant has failed to meet his heavy burden of showing an abuse of judicial discretion. Lamb v. State, 90 Fla. 844, 107 So. 530 (1925); Walsingham v. State, 61 Fla. 67, 56 So. 195 (1911); Mathis v. State, 45 Fla. 46, 34 So. 287 (1903). See also Fla.R.Crim.P. 3.330. Secondly, the judge's instruction concerning the uncorroborated testimony of one witness in a criminal trial is a correct statement of Florida law and did not confuse or mislead the jury. Appellant's first colorable claim is that the trial court erred in permitting the introduction of oral evidence concerning what Nina Marshall wrote at the hospital. He maintains that the best evidence rule required either production of the original piece of paper on which the names were written or an adequate explanation for its absence. We must agree with this contention. The best evidence rule provides that in proving the terms of a writing, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. Firestone Service Stores, Inc. of Gainesville v. Wynn, 131 Fla. 94, 179 So. 175 (1938); Wicker v. Board of Public Instruction of Dade County, 159 Fla. 430, 31 So.2d 635 (1947); Griswold v. State, 77 Fla. 505, 82 So. 44 (1919); Wilson v. Jernigan, 57 Fla. 277, 49 So. 44 (1909); McCormick, Evidence § 230 (2d ed. 1972). Its purpose is to ensure the accurate transmittal of critical facts contained in a writing. 4 Wigmore, Evidence § 1179 (Chadbourn rev. 1972). Nina Marshall's testimony concerning what she wrote at the hospital was offered to prove that she did indeed write the names of Williams and Myers on the piece of paper, which in turn would identify them as the murderers. Because the contents of the writing were directly in issue, the judge should have required the state to explain the absence of the original writing before allowing parol evidence of the identification. The trial court's error does not justify reversal, however, for it was clearly harmless. Rather than contesting the accuracy of the terms contained in Ms. Marshall's note, appellant's objection was directed to the reliability of the out-of-court identification, an issue not addressed by the best evidence rule.[5] Moreover, counsel had ample opportunity to discredit the identification by cross-examining Ms. Marshall about the events at the hospital. Given this posture, we do not believe that the trial court's technical error injuriously affected the substantial rights of appellant. § 59.041, Fla. Stat. (1975); Prince v. Aucilla River Naval Stores Co., 103 Fla. 605, 137 So. 886 (1931); Reliable Services, Inc. v. Taft, 247 So.2d 97 (Fla. 3d DCA 1971); accord, Myrick v. United States, 332 F.2d 279 (5th Cir.), cert. denied, 377 U.S. 952, 84 S.Ct. 1630, 12 541 L.Ed.2d 497 (1964); Sauget v. Johnston, 315 F.2d 816 (9th Cir.1963).[6] As is our duty in death penalty cases, we have thoroughly examined the entire record in this case and find the evidence more than sufficient to support appellant's conviction. Aldridge v. State, 351 So.2d 942 (Fla. 1977); Gibson v. State, 351 So.2d 948 (Fla. 1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978). The motion for a new trial based on the insufficiency of the evidence was therefore properly denied. Turning to the sentencing phase of the trial, we are constrained to conclude that the judge's findings, in the most part, are not supportable. The findings, in pertinent part, are as follows: B. WHETHER THE DEFENDANT HAS PREVIOUSLY BEEN CONVICTED OF ANOTHER CAPITAL FELONY OR OF A FELONY INVOLVING THE USE OR THREAT OF VIOLENCE TO THE PERSON. FACT: A careful study of the Pre-Sentence Investigation shows that this defendant has many arrests dating back to September of 1959; that on 10/28/60 defendant was sentenced to two (2) years in the County Jail for Attempted Arson and that on 6/20/65 the defendant was convicted by a jury and sentenced to eight (8) years in the State Prison for Armed Robbery. The defendant was then paroled 4/14/70 and his parole revoked 7/31/72; on 12/27/71 defendant was convicted by a jury of Resisting Arrest and sentenced to one (1) year in the County Jail. On 6/7/76 defendant pled guilty and was sentenced to one (1) year in the County Jail for Resisting an Officer with Violence (this offense occurred prior to the subject murder, but defendant was sentenced thereon subsequent to said murder). It should also be noted that the defendant has pending at present in this Division of the Circuit Court of Duval County a charge of Conspiracy to Commit a Felony, to-wit: Sale or Delivery of Heroin, and that offense is alleged to have occurred prior to the subject murder although the defendant has yet to be tried on same. It would therefore appear that this defendant has been involved in constant, serious difficulties with the law since September 9, 1959, having been arrested in excess of twenty-five (25) times and having been convicted of several felonies involving the use or threat of violence to the person. CONCLUSION: This is an aggravating circumstance because this defendant has been found guilty of crimes of violence to many persons, which crimes were felonies, before he was convicted by a jury for the cold-blooded murder of Jeannette Elizabeth Williams. C. WHETHER, IN COMMITTING THE MURDER OF WHICH HE HAS JUST BEEN CONVICTED, THE DEFENDANT KNOWINGLY CREATED A GREAT RISK OF DEATH TO MANY PERSONS. FACT: During the murder of Jeannette Elizabeth Williams the defendant and the co-defendant, Hubert Nathan Myers, did shoot with pistols Nina Annette Dyals several times and at least twice in the throat, in attempting to kill the said Nina Annette Dyals, as charged in the Second Count of the Indictment. CONCLUSION: This is an aggravating circumstance because not only did the defendant murder Jeannette Elizabeth Williams, but either simultaneously therewith or immediately thereafter attempted to murder Nina Annette Dyals by shooting 542 her with a pistol, and it was only by the skill of medical science and the grace of God that Ms. Dyals' life was saved. ..... G. WHETHER THE MURDER OF WHICH THE DEFENDANT HAS BEEN CONVICTED WAS COMMITTED TO DISRUPT OR HINDER THE LAWFUL EXERCISE OF ANY GOVERNMENTAL FUNCTION OR THE ENFORCEMENT OF LAWS. FACT: Facts brought out at the trial of this case show that this defendant and Hubert Nathan Myers did in fact shoot with pistols Jeannette Elizabeth Williams and Nina Annette Dyals while they both were asleep in their bed. Ms. Williams died. Ms. Dyals survived, although seriously wounded. The Court must assume therefore that this defendant did not intend to leave a witness to his murder of Ms. Williams alive and did intend to hinder, disrupt and impede the lawful exercise of the duly authorized law enforcement officers of Duval County in investigating Ms. Williams' murder. CONCLUSION: There is an aggravating circumstance under this paragraph. H. WHETHER THE MURDER OF WHICH THE DEFENDANT HAS BEEN CONVICTED WAS ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL. FACT: The defendant stands convicted of First Degree Murder of Jeannette Elizabeth Williams and Attempted First Degree Murder of Nina Annette Dyals. The record of the trial amply shows that this defendant, together with Hubert Nathan Myers, entered the victims' apartment in the nighttime and shot both victims with pistols, which were partially covered by a blanket or pillow or some other object, at close range while the victims were sleeping in their bed. The record further shows that defendant's actions were premeditated, senseless, cruel, and indicative of the unreasonable, unlawful and violent nature of this defendant and the especially heinous, atrocious or cruel nature of the murder of Jeannette Elizabeth Williams. CONCLUSION: This is an aggravating circumstance. This Court cannot conceive of any more heinous, atrocious or cruel act than to enter someone's home in the night while they are sleeping in their bed and shoot them to death. ..... CONCLUSIONS OF COURT There are no mitigating circumstances existing, either statutory or otherwise, which would outweigh any aggravating circumstances to justify a sentence of Life Imprisonment rather that a sentence of Death. There are sufficient aggravating circumstances which exist to justify the sentence of Death. First, the record does not support a finding that Williams "knowingly created a great risk of death to many persons."[7] In Kampff v. State, 371 So.2d 1007 (Fla. 1979), we held that a great risk of death to two persons was insufficient to trigger this circumstance. Under our statute the risk of death must be to "many" persons, not just one or two. Second, the finding of an aggravating circumstance dealing with a prior conviction of a "felony involving the use or threat of violence"[8] is defective. The state must prove every aggravating circumstance beyond a reasonable doubt. Alford v. State, 307 So.2d 433 (Fla. 1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The state obviously failed to carry its burden here, for it offered no evidence, either *543 at trial or during the sentencing phase, of a prior conviction against appellant. The judge should not have considered this circumstance in his sentence based solely on information contained in the presentence investigation report. Third, appellant's crime did not rise to the level of "especially heinous, atrocious, or cruel."[9] Jeannette Williams died almost instantaneously from her gunshot wounds. The murder, while utterly reprehensible, was not "accompanied by such additional acts as to set the crime apart from the norm of capital felonies the conscienceless or pitiless crime which is unnecessarily torturous to the victim." Id. at 9. Accord, Lewis v. State, 377 So.2d 640 (Fla. 1979); Cooper v. State, 336 So.2d 1133 (Fla. 1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977); Tedder v. State, 322 So.2d 908 (Fla. 1975). There remains, then, one aggravating circumstance offset by no mitigating circumstances.[10] Although a sentence of death is normally presumed in this situation,[11] the jury's recommendation of life imprisonment militates against such a presumption. A jury recommendation under our death penalty statute should be accorded great weight. "In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Id. at 910. Accord, McCaskill v. State, 344 So.2d 1276 (Fla. 1977); Provence v. State, 337 So.2d 783 (Fla. 1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977); Thompson v. State, 328 So.2d 1 (Fla. 1976). Even assuming the validity of the judge's finding with respect to the remaining aggravating circumstance, the facts suggesting a sentence of death in this case are not sufficiently clear and convincing to override the jury's recommendation. Accordingly, appellant's convictions and thirty-year sentence are affirmed, but the cause is remanded to the trial court for imposition of a sentence of life imprisonment without possibility of parole for twenty-five years on the first degree murder conviction. It is so ordered. ENGLAND, C.J., and SUNDBERG, ALDERMAN and McDONALD, JJ., concur. BOYD, J., concurs in part and dissents in part with an opinion, with which ADKINS, J., concurs. ADKINS, J., concurs as to guilt and dissents as to sentence. OVERTON, J., concurs in the conviction but would remand for a new sentencing proceeding. BOYD, Justice, concurring in part and dissenting in part. I concur in that portion of the majority opinion finding appellant guilty, but I dissent to the reduction of sentence to life imprisonment. I would affirm both the conviction and sentence of death. ADKINS, J., concurs. NOTES [1] Appellant does not challenge the propriety of the thirty-year sentence for attempted murder. [2] Also know as Nina Dyals. [3] No relation to appellant. [4] Myers was tried jointly with appellant but receive a life sentence. His conviction is not before us today. [5] Indeed, counsel for appellant and Myers appear to concede that Ms. Marshall wrote the defendants' names on a piece of paper at the hospital. The principal objection to introduction of the testimony was on the grounds of hearsay and relevance. The best evidence rule objection seems to have been included almost as an afterthought. [6] Appellant contends further that evidence of Ms. Marshall's out-of-court identification should have been excluded as a prior consistent statement offered to bolster her in-court identification. Because the objection was not raised at the trial level, we decline to entertain it here. Lineberger v. Domino Canning Co., 68 So.2d 357 (Fla. 1953); Tampa Elec. Co. v. Charles, 69 Fla. 27, 32, 67 So. 572, 573 (1915); Frank v. Ruwitch, 318 So.2d 188 (Fla. 3d DCA 1975). [7] § 921.141(5)(c), Fla. Stat. (1975). [8] § 921.141(5)(b), Fla. Stat. (1975). [9] § 921.141(5)(h), Fla. Stat. (1975). [10] Due to our disposition of this issue, we intimate no view as to the validity of the judge's finding under section 921.141(5)(g). [11] State v. Dixon, 283 So.2d 1, 9 (Fla. 1973).
719 S.E.2d 621 (2011) Kristie Lea WILLIAMS v. James Marion CHANEY. No. 495P11. Supreme Court of North Carolina. December 8, 2011. Kristie Lea Williams, for Williams, Kristie Lea. James M. Chaney, Jr., for Chaney, James Marion. ORDER Upon consideration of the petition filed by Plaintiff on the 15th of November 2011 for Writ of Supersedeas of the judgment of the Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 8th of December 2011." Upon consideration of the petition filed by Plaintiff on the 15th of November 2011 in this matter for a writ of certiorari to review the decision of the North Carolina Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 8th of December 2011."
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1690V Filed: May 17, 2019 UNPUBLISHED JAMES DWYER, Petitioner, v. Special Processing Unit (SPU); Attorneys’ Fees and Costs SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Mark Theodore Sadaka, Mart T. Sadaka, LLC, Englewood, NJ, for petitioner. Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On December 22, 2016, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleges that his November 17, 2014 influenza (“flu”) vaccine caused him to suffer a “vaccine-induced nerve injury” in his right arm. Petition at 1. On November 10, 2018, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. ECF No. 48. On March 18, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF No. 58. Petitioner requests attorneys’ fees in the amount of $20,649.70 and attorneys’ 1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. This means the decision will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). costs in the amount of $710.93. ECF No. 58-1 at 18-19. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of- pocket expenses. ECF No. 51. Thus, the total amount requested is $21,359.93. On March 20, 2019, respondent filed a response to petitioner’s motion. ECF No. 59. Respondent states that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. On March 20, 2019, petitioner filed a reply. ECF No. 60. “Petitioner relies on the information provided in his original application and respectfully requests that this Court grant the application for $21,359.93 in attorney fees and costs.” Id. The undersigned has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates. The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs. Accordingly, the undersigned awards the total of $21,359.93 3 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel Mark Theodore Sadaka. The clerk of the court shall enter judgment in accordance herewith. 4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991). 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2
103 F.3d 144 96 CJ C.A.R. 2063 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Harold GRAHAM, Plaintiff-Appellant,v.Katie BAXTER, Law Librarian CCF; Annette Porter, LawLibrarian CCF; Brad Rockwell, Staff Attorney,Director of Legal Services CDOC; MarkMickinna, Warden, CTCF,Defendants-Appellees. No. 96-1241. United States Court of Appeals, Tenth Circuit. Dec. 17, 1996. Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges. 1 ORDER AND JUDGMENT* 2 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument. 3 Harold Graham filed this civil rights action claiming that defendants violated his constitutional rights by refusing to copy a 38-page transcript which he allegedly needed to file as evidence in his pending habeas action. The district court dismissed the action as legally frivolous. It then denied Mr. Graham informa pauperis status on appeal on the ground that he failed to submit a certified copy of his prison trust fund account as required by 28 U.S.C. § 1915(a)(2).1 4 On appeal, Mr. Graham renewed his motion to proceed informa pauperis and filed a certified copy of his prison trust account. That account shows that he has had an average monthly balance of a negative $880.95 for the previous six months period. He has therefore shown a financial inability to pay a filing fee. See § 1915(b)(4). However, in order to succeed on his motion, Mr. Graham must show both an inability to pay the fee and the existence of a nonfrivolous issue that states a claim on which relief can be granted. § 1915(e)(2). 5 In a careful and thorough opinion, the district court analyzed Mr. Graham's contention that he was being denied access to the courts because of defendants' refusal to copy a transcript Mr. Graham allegedly needs as evidence in his habeas case. The district court correctly concluded that Mr. Graham has recourse in his habeas action for procuring the transcript if he can establish its necessity. Mr. Graham has thus failed to show actual injury from the alleged deprivation, which is required to establish a constitutional claim for denial of access to the courts. Lewis v. Casey, 116 S.Ct. 2174, 2180 (1996). Because Mr. Graham has failed to state a claim on which relief may be granted, we deny his motion for leave to proceed on appeal without prepayment of costs or fees. Appeal dismissed. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions 10th Cir. R. 36.3 1 Proceedings in forma pauperis under 28 U.S.C. § 1915 were amended by the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134 § 804, 110 Stat. 1321-73 to 1321-75 (Apr. 26, 1996). We cite in this order to the amended version now in effect
368 F.3d 773 UNITED STATES ex rel. Friedrich LU, Plaintiff-Appellant,v.David W. OU, et al., Defendants-Appellees. No. 03-3481. United States Court of Appeals, Seventh Circuit. Submitted April 19, 2004. Decided May 18, 2004. Friedrich Lu (submitted), Boston, MA, pro se. Before POSNER, EVANS, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge. 1 Friedrich Lu brought a qui tam action under the False Claims Act, see 31 U.S.C. §§ 3729, 3730(b)(1), against Dr. David Ou, a pathologist who had been Lu's faculty advisor when Lu was a doctoral candidate at the University of Illinois at Chicago, and fourteen of Ou's colleagues. Until recently Ou was also on the staff of a veterans hospital, and the suit charges that for years he's been collaborating with the other defendants to publish scholarly articles based on fabricated medical research and to use these spurious publications to defraud the Veterans Administration. The suit also charges that the defendants gave legitimate researchers free use of laboratory equipment at the veterans hospital in exchange for being credited as joint authors of those researchers' articles. The district court initially dismissed the suit, without prejudice, because it found "Lu's complaint to be incoherent and ... [was] unable to discern any claims actionable under the False Claims Act." When Lu failed to file an amended complaint, the district court converted its dismissal into one with prejudice, precipitating this appeal. 2 A qui tam action is brought by a private party, called the "relator," on behalf of the government. If a qui tam suit under the False Claims Act succeeds, the relator obtains a reward of 25 to 30 percent of the judgment or settlement. 31 U.S.C. § 3730(d)(2). The government gets the rest. Because the government thus has the primary stake in the suit, it is empowered to take it over and prosecute it itself. The complaint is initially filed under seal and served only on the government, which then has 60 days in which to inform the district court that it plans to take over the prosecution of the suit. § 3730(b)(4). 3 Lu paid the filing fee and submitted his complaint to the district court under seal. Nothing happened for almost a year. Eventually the district judge unsealed the complaint and dismissed it as recounted above. So far as appears, the government was never served (which suggests another basis for dismissal); in any event it has not participated in the litigation either in the district court or in this court. 4 Lu filed his notice of appeal 45 days after the entry of the final judgment in the district court, and the initial question that the appeal presents — one we haven't had occasion to consider previously — is whether the notice of appeal in a qui tam suit in which the government has not appeared must be filed within 30 days, the deadline in private suits, or 60 days, the deadline in suits to which the federal government is a party. Fed. R.App. P. 4(a)(1). In United States ex rel. Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, 588 F.2d 1327 (10th Cir.1978) (per curiam), the Tenth Circuit held by a divided vote that even though the government is a named party in a qui tam suit, once it has declined to participate its presence in the suit is "merely a statutory formality" and therefore the shorter appellate time limit applies, at least in the absence of "other circumstances which indicate a need for more than the usual 30 days to make the appeal," id. at 1329 (a very curious qualification, we note parenthetically, to graft onto a jurisdictional statute). The Fifth and Ninth Circuits disagree with the Tenth. United States ex rel. Russell v. Epic Healthcare Management Group, 193 F.3d 304 (5th Cir.1999); United States ex rel. Haycock v. Hughes Aircraft Co., 98 F.3d 1100 (9th Cir.1996). They point out that even if the government decides not to annex the lawsuit, it still can insist on receiving copies of all pleadings and depositions, 31 U.S.C. § 3730(c)(3), is free to pursue alternative remedies, § 3730(c)(5), and, most important, receives the lion's share of any recovery regardless of who conducts the litigation. §§ 3730(d)(1), (2). These decisions also note the trap for the unwary that would be created by giving Rule 4(a)(1) a nonliteral interpretation, and the desirability of avoiding uncertain inquiries (what is the named party's real interest in the case?) to determine jurisdiction. See also United States ex rel. Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, supra, 588 F.2d at 1327 (dissenting opinion); United States v. American Society of Composers, Authors & Publishers, 331 F.2d 117, 119 (2d Cir.1964) (Friendly, J.). And if the United States is not a party — if Lu is the only party — then what is his standing to litigate a violation of the False Claims Act? The United States is a party, and that ought to be the end of the inquiry; Lu's notice of appeal filed within the 60-day time limit was timely. 5 There is another threshold issue, however. It is whether Lu can bring a qui tam action pro se, as he has attempted to do. The only appellate court to address the issue has held that a pro se relator cannot prosecute a qui tam action, because he is acting as an attorney for the government. United States v. Onan, 190 F.2d 1 (8th Cir.1951). We agree. The relator is not technically the government's lawyer; but the same policy that forbids litigants, whether they are corporations, or other organizations, or individuals, such as members of a class or shareholders, to be represented by nonlawyers, Rowland v. California Men's Colony, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); Navin v. Park Ridge School District 64, 270 F.3d 1147, 1149 (7th Cir.2001) (per curiam); Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829 (7th Cir.1986) (per curiam); Phillips v. Tobin, 548 F.2d 408, 411-12 (2d Cir.1976); Oxendine v. Williams, 509 F.2d 1405 (4th Cir.1975) (per curiam), is applicable to qui tam suits. Lu is suing not on his own behalf, but on behalf of the government. Of course his motives may well be purely private — spite against Ou for example, or desire for the monetary reward that the successful relator obtains. But an agent does not become a principal by having a personal incentive to act for him. A rule that limits legal representation (except self-representation) to lawyers operates to filter out frivolous litigation that can redound to the harm of the represented party, especially when as in this case the representative is a volunteer; the government didn't hire Lu to sue on its behalf. "[A] party may be bound, or his rights waived, by his legal representative. When that representative is a licensed attorney there are grounds for belief that the representative's character, knowledge and training are equal to the responsibility." Lewis v. Lenc-Smith Mfg. Co., supra, 784 F.2d at 830 (internal quotations and citation omitted). "A relator may make sweeping allegations that, while true, he is unable effectively to litigate, but which nonetheless bind the government, via res judicata, and prevent it from suing over those concerns at a later date when more information is available." Riley v. St. Luke's Episcopal Hospital, 252 F.3d 749, 763 (5th Cir.2001). 6 The remaining question is whether, rather than affirm the dismissal of Lu's suit with prejudice, we should remand the case to the district court to give Lu a chance to find a lawyer. We think not. The district judge was correct; the complaint is incoherent, even crazy. We cannot imagine a reputable lawyer being interested in taking the case on a contingent basis — the only possible basis, since Lu describes himself as homeless and phoneless. 7 AFFIRMED.
911 F.2d 725Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.James COX, a/k/a Cricket, Defendant-Appellant. No. 89-6331. United States Court of Appeals, Fourth Circuit. Submitted July 9, 1990.Decided July 24, 1990. Appeal from the United States District Court for the District of South Carolina, at Florence. Clyde H. Hamilton, District Judge. (C/A No. 87-142) James Cox, appellant pro se. John Michael Barton, Office of the United States Attorney, Columbia, S.C., for appellee. D.S.C. AFFIRMED. Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: 1 James Cox filed an appeal of the district court's denial of his Fed.R.Crim.P. 35(a) motion outside the 10-day time limit of Fed.R.App.P. 4(b). Since his filing can be considered a 28 U.S.C. Sec. 2255 petition--he attacks the constitutionality of his conviction, Hill v. United States, 368 U.S. 424 (1962)--and his appeal of the denial was filed within the 60-day limit of Rule 4(a), his appeal is timely. However, our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. United States v. Cox, C/A No. 87-142 (D.S.C. Oct. 2, 1989, Feb. 2, 1990). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. 2 AFFIRMED.
Case: 12-10817 Date Filed: 08/13/2012 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-10817 Non-Argument Calendar ________________________ D.C. Docket No. 1:11-cv-02799-TWT SANDRA GRAY, llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant, versus THE CITY OF ROSWELL, PATRICK C. FERDARKO, BRANDON CRAWFORD, NICK MARIANI, llllllllllllllllllllllllllllllllllllllll Defendants - Appellees. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (August 13, 2012) Before BARKETT, WILSON and PRYOR, Circuit Judges. PER CURIAM: Case: 12-10817 Date Filed: 08/13/2012 Page: 2 of 9 Plaintiff, Sandra Gray, filed suit pursuant to 42 U.S.C. § 1983 against the City of Roswell, (“City”) Georgia, and Officers Patrick Ferdarko, Brandon Crawford, and Nick Mariani (“Officers,” collectively with the City, “Defendants”) claiming violations of her Fourth and Fourteenth Amendment rights. Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). Gray filed a Motion for Partial Summary Judgment. The district court granted Defendants’ motion and dismissed Gray’s motion as moot. After reviewing the Complaint and the parties’ briefs we affirm the district court as to the City, but we reverse the district court’s dismissal of the claims against the Officers. I. Background1 This suit arises from the Officers’ response to a dispute at Gray’s home. Gray permitted Gregory Pompelia to reside in her home as a guest while he recovered from surgery because he was homeless. Gray alleges in her complaint that there was no formal agreement between herself and Pompelia. Instead, they had an oral agreement which required Pompelia to exhibit good behavior and contribute a modest sum to household expenses. In January 2011, Pompelia began to exhibit poor behavior, and Gray 1 Because this is an appeal from a motion to dismiss, we take all facts pleaded in the complaint as true and construe the facts in the light most favorable to Gray. See Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). 2 Case: 12-10817 Date Filed: 08/13/2012 Page: 3 of 9 ordered him to leave her home. Pompelia refused. On February 9, 2011, Gray changed all the locks on her home and carefully removed all of Pompelia’s things from her home. She put all of his property in the back of a pickup truck and covered it with a tarp to protect it from the elements. She specifically alleges that she did not damage any of Pompelia’s property in the process. When Pompelia returned to Gray’s home and found that he could not enter the premises, he called the Roswell police department. Officers Ferdarko, Crawford, and Mariani responded to the call. When Gray saw the officers approaching her home, she opened her front door and advised the officers that the dispute between herself and Pompelia was a “civil matter.” At some point during the dispute, Gray gave permission for Ferdarko to enter her home. Inside her home, she explained to Ferdarko that Pompelia was only a guest and that she did not want Pompelia in her home because she felt that Pompelia was a threat to her and her property. Ferdarko insisted that she must let Pompelia back into her home. Ferdarko informed Gray that unless she let Pomopelia back into her home, Ferdarko would arrest her. Gray, informing the officers that she was an attorney and knew her rights, stated that this was a purely civil matter, not a criminal matter, and that the officers had no right to force her to permit Pompelia back into her home. 3 Case: 12-10817 Date Filed: 08/13/2012 Page: 4 of 9 One of the officers then exited the home and asked Pompelia to make a list of property that Gray had damaged. Pompelia claimed that Gray had caused $5,600.00 worth of damage to his property. Gray then specifically alleges in her complaint (1) “That Defendants did not see any damage to the property, and did not inspect the property that was in the back of Plaintiff’s truck” and (2) “That by Defendant Ferdarko’s own admission, in his incident report, the alleged list of damaged property included items which Ferdarko states he saw, and that he saw no damage to said items.” Still, Ferdarko trusted Pompelia and arrested Gray on the charge of felony criminal damage to property. The Officers then permitted Pompelia to remain in Gray’s home while she was in jail. II. Standard of Review We review de novo a district court’s grant of a motion to dismiss. Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). “To survive a motion to dismiss, 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, 1949 (2009) (internal quotation marks omitted). The plaintiff need only plead facts that permit a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The “plausibility standard” requires a plaintiff to only show “more than a sheer possibility that a 4 Case: 12-10817 Date Filed: 08/13/2012 Page: 5 of 9 defendant has acted unlawfully.” Id. III. Claim Against the City of Roswell Gray claims that (1) the City failed to properly train the Officers, (2) the Officers actions were within the policy, practice, custom, or procedure of the City, (3) the City ratified the Officers’ conduct, and (4) all City officers routinely violate the Fourth and Fourteenth Amendments. In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), the Supreme Court explained the boundaries of municipal liability under § 1983. A municipality may only be held liable for the actions of law enforcement officers when official policy or custom causes the constitutional violation. Id. at 694, 98 S. Ct. at 2037–38. Gray does not recite any facts or policies which would support a claim against the City. Gray only makes “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678, 126 S. Ct. at 1949. This is not sufficient to survive a motion to dismiss, and the district court properly dismissed the claims against the City. IV. Claim Against the Officers The district court found that the Officers were protected from Gray’s claims by qualified immunity. An officer is not entitled to qualified immunity when, 5 Case: 12-10817 Date Filed: 08/13/2012 Page: 6 of 9 acting in his discretionary capacity, he violates clearly established constitutional or federal law of which a reasonable person would have known. See Koch v. Rugg, 221 F.3d 1283, 1294 (11th Cir. 2000). When responding to Pompelia’s call, the Officers were acting in their discretionary capacity as law enforcement officers. Therefore, our analysis focuses on whether Gray’s Complaint alleges facts sufficient to support a claim that the Officers violated clearly established law. See Rehberg v. Paulk, 611 F.3d 828, 838–39 (11th Cir. 2010). We decide whether the facts alleged in the Complaint show a violation of clearly established law by “(1) defining the official’s conduct, based on the record and viewed most favorably to the non-moving party, and (2) determining whether a reasonable public official could have believed that the questioned conduct was lawful under clearly established law.” Koch at 1295–96 (footnote omitted). “A warrantless arrest is constitutionally valid only when there is probable cause to arrest.” Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003) (citing United States v. Watson, 423 U.S. 411, 417, 96 S. Ct. 820 (1976)). An officer has probable cause to arrest if the “arrest is objectively reasonable based on the totality of the circumstances.” Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004). An arrest is objectively reasonable when “the facts and circumstances within the officer’s knowledge, of which he or she has reasonably trustworthy 6 Case: 12-10817 Date Filed: 08/13/2012 Page: 7 of 9 information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed . . . an offense.” Id. (emphasis added). An officer may not “conduct an investigation in a biased fashion or elect not to obtain easily discoverable facts.” Id. at 1229 (finding that information that could be uncovered by searching a truck for drugs and interviewing available witnesses constituted “easily discoverable facts”). Although an officer is not required to eliminate every theoretical possibility, an officer may not “turn[] a blind eye to immediately available exculpatory information.” Id. at 1229 n. 10. Here, the Officers must show that they had probable cause to arrest Gray for criminal damage to property. In Georgia, criminal damage to property in the second degree occurs when a person “(1) Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00; or (2) Recklessly or intentionally, by means of fire or explosive, damages property of another person.” O.C.G.A. § 16-7-23. The Officers only basis for asserting probable cause to arrest Gray was Pompelia’s claim that Gray caused $5,600.00 worth of damage to his property. Gray alleges in her Complaint that she carefully removed Pompelia’s property from her house and did not damage any of his property. She further alleges that at the time of her arrest Ferdarko knew that at least some of the property that Pompelia claimed was damaged was not actually 7 Case: 12-10817 Date Filed: 08/13/2012 Page: 8 of 9 damaged. Assuming that this is true and drawing all inferences in favor of Gray, as we must, the Officers knew of exculpatory evidence and “failed to investigate both sides of the story.” Kingsland, 382 F.3d at 1229. The Officers, after learning that some of the property was not damaged, were no longer justified in relying solely on Pompelia’s claims. At that point, a reasonable officer would, at the very least, further investigate to see if Gray had actually damaged any property. This is especially true when the investigation into the allegedly damaged property only required the Officers to ask Pompelia to show them his damaged property. See id. It is a reasonable inference from the Complaint that the Officers had reason to believe that Pompelia was not providing “reasonably trustworthy information.” Therefore, the Officers did not have probable cause to arrest Gray until they verified some of Pompelia’s statements. Thus, at this stage of the proceedings, the Officers are not entitled to qualified immunity.2 V. Conclusion We affirm the grant of the motion to dismiss as to the City. We reverse the granting of the motion to dismiss as to the Officers, because based on the 2 Both parties make arguments regarding the exclusive method that a landlord may use to evict a tenant under O.C.G.A. § 44-7-50 et seq. However, these arguments are irrelevant, because to be eligible for qualified immunity the Officers must show that they had probable cause to arrest Gray for criminal damage to property in the second degree, O.C.G.A. § 16-7-23. 8 Case: 12-10817 Date Filed: 08/13/2012 Page: 9 of 9 Complaint, Gray “state[d] a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). AFFIRMED IN PART AND REVERSED IN PART. 9
127 F.Supp.2d 625 (2000) William J. DAVIS, Plaintiff, v. TAMMAC CORPORATION, Defendant. No. 3:CV-98-1478. United States District Court, M.D. Pennsylvania. December 28, 2000. 626 Ralph J. Johnston, Johnston and Johnston, Kingston, PA, Joseph T. Wright, Wright and Associates, Scranton, PA, for plaintiff. Alexia Kita Blake, Hourigan Kluger Spohrer and Quinn, Scranton, PA, for defendant. MEMORANDUM VANASKIE, Chief Judge. This action involves claims of age and disability discrimination in connection with plaintiff William Davis' termination from his employment at Tammac Corporation ("Tammac"). Davis alleges violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. § 955, as well as a pendent state law claim for intentional infliction of emotional distress. Tammac has moved for summary judgment on all claims. Because Davis has failed to present competent evidence that he suffers from a "disability" or was regarded by Tammac as having a "disability" as defined in the ADA, Tammac will be granted summary judgment on Davis' disability discrimination claims. Davis has provided sufficient evidence, however, to withstand Tammac's summary judgment motion on his claim of age discrimination. Thus, summary judgment will be denied as to those claims. As a result of the parties' concurrence, the intentional infliction of emotional distress claim and Davis' request for punitive damages under the PHRA will be dismissed. BACKGROUND Tammac is a financial services company which markets automotive lease financing programs, manufactured housing industry financing, insurance services, credit reporting and resort industry financing. In 1991, Davis was hired by Tammac as Director of Tammac Career Services ("TCS"). TCS, which is part of Tammac's Automotive Leasing Division, was developed to offer sales programs to automobile dealerships, and supplemented the lease training programs which were being conducted by the lease division's marketing representatives.[1] As Director of TCS, Davis' responsibilities included developing training curriculum; soliciting auto leasing dealers for the 627 sales training; and conducting the sales training programs.[2] Davis also occasionally performed market surveys for the lease division, which enabled Tammac to determine the viability of expanding its services into new geographic territories. Besides Davis, the only other employees in TCS were clerical and administrative staff. Davis reported to William Smith, who oversaw the auto lease division and the manufactured housing division.[3] In the early 1990's, Tammac had a dealer base of approximately 1500 dealers. Davis provided training at approximately 29 dealerships, 11 to 12 of which were located in the Allentown, Pennsylvania area. Davis conducted approximately 20 training programs each year, and trained approximately 600 sales representatives. During his tenure, Davis also occasionally provided training programs for the manufactured housing division, and some "in-house" training for Tammac Credit Services. Although revenues for the auto lease division as a whole grew from 1992-1995, TCS sustained losses of $30,251 in 1992; $48,561 in 1993; $25,957 in 1994 and $43,264 in 1995. Davis discussed the fees generated by TCS with Smith on a monthly basis. According to Davis, Smith never expressed concern to Davis about the income which the division was generating and did not provide any negative feedback to Davis. In the fall of 1994, Davis asserts that Smith told him that one of the sales representatives, James Root, was going to be promoted, and that Davis would take over Root's territory in Allentown. In October 1994, Davis suffered a heart attack and had heart surgery. He returned to work in January 1995. Upon his return to work, Davis resumed his position as Director of TCS, and worked without restrictions. Davis contends, however, that management's attitude towards him changed after his heart attack, and that he was no longer involved in management's "inner circle." In June 1995, Smith informed Davis that Tammac was closing TCS because of its unprofitability, and that it was terminating Davis' position.[4] Shortly after deciding to close the TCS division, Tammac was approached by National Auto Funding to establish an indirect auto substandard credit lending program at Tammac. NAF provides loans to individuals with a poor credit history. NAF agreed to loan funds if Tammac could commit marketing and operations personnel to approach auto dealers to arrange for the financing. For any loan which Tammac initiated, Tammac would receive a fee from NAF. Smith contacted Davis and offered him the opportunity to head the sub-par financing program at a salary of $30,000 plus commissions. Davis was informed that the project was risky, but he accepted the position because he had no other employment options. A clerical employee, Kim Alexander, was transferred from the manufactured housing unit to assist Davis with the sub-par financing program. In the fall of 1995, while Davis was working in sub-par financing, Root, the Allentown sales representative, was promoted to Vice President of Marketing. Tammac offered Root's position to John Senick in November of 1995, and Senick assumed Root's position on January 2, 1996.[5] Although Davis contends that he 628 was promised the position prior to his heart attack, Davis was not offered the position. In December 1995, a few months after the sub-par program started, NAF withdraw its funding. Because Tammac did not have another funding source, Tammac closed the sub-par financing program in January of 1996, and terminated Davis' employment a second time. At the time of his second termination, Davis was not offered another position in the company; Kim Alexander, Davis' assistant, returned to her previous position in the manufactured housing unit. Davis was 49 years old at the time of his termination. Davis filed a claim with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). The PHRC authorized commencement of a law suit on October 22, 1997. (Complaint, Dkt. 1, at ¶ 9.) Davis filed this action on September 4, 1998. In October of 1999, Tammac moved for summary judgment. The motion has been fully briefed and is ripe for disposition. I. DISCUSSION A. Summary Judgment Standard Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). "Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 329, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir.1988); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). Rule 56 requires the entry of summary judgment, after adequate time for discovery, where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. B. Discrimination Claims Discrimination claims can be established in two ways: by direct evidence that the employer's decision was motivated by discrimination; or by indirect evidence which creates an inference of discrimination under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 629 L.Ed.2d 668 (1973).[6] Under the McDonnell Douglas burden shifting analysis, the plaintiff bears the initial burden of offering evidence sufficient to "create an inference that an employment decision was based on a discriminatory criterion illegal under the act." Maxfield v. Sinclair International, 766 F.2d 788, 791 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that it had a legitimate, nondiscriminatory reason for the discharge. Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 235 (3d Cir.1999); Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994). If the defendant satisfies this requirement, then the burden of production shifts back to the plaintiff to point to some evidence that the reasons offered by the defendant were a pretext for discrimination. Shaner v. Synthes, 204 F.3d 494, 500-01 (3d Cir. 2000). To defeat summary judgment, the plaintiff must proffer evidence "from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Showalter, 190 F.3d at 235; Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc); Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir.1994). "To discredit the employer's proffered reason, [] the plaintiff cannot simply show that the employer's decisions were wrong or mistaken.... Rather the moving plaintiff must demonstrate such weaknesses or implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact-finder could find them unworthy of credence." Fuentes, 32 F.3d at 765; Sylvester v. Unisys Corp., No. Civ. A. 97-7488, 1999 WL 167725, at 4 (E.D.Pa. March 25, 1999). The trial court's function on a summary judgment motion is to determine whether plaintiff's evidence is sufficient "to permit a reasonable fact finder to conclude that the [employer's] reasons are incredible." Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir.) (en banc), cert. denied, 521 U.S. 1129, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997). 1. Disability Discrimination To establish a prima facie case of discrimination under the ADA, it is incumbent upon Davis to present evidence that: (1) he has a "disability" within the meaning of the ADA; (2) he was qualified for his position, with or without accommodation; and (3) he suffered an adverse employment decision as a result of the discrimination. Shaner, 204 F.3d at 500; Deane v. Pocono Medical Center, 142 F.3d 138, 142 (3d Cir.1998) (en banc). A "disability" is defined by the ADA as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). "Accordingly to fall within this definition, one must have an actual disability (subsection A), have a record of a disability (subsection B), or be regarded as having one (subsection C)." Sutton v. United Air Lines Inc., 527 U.S. 471, 478, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). A "physical or mental impairment" for purposes of the ADA has been defined to 630 include a "physiological disorder or condition ... affecting one of more of the following systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), [and] cardiovascular...." 29 C.F.R. § 1630.2(h)(1). "Substantially limits" has been defined as, among other things, an inability "to perform a major life activity the average person in the general population can perform" or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1). The EEOC has defined "major life activities" to include "walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i).[7] Davis does not contend that his heart condition substantially limits any of life's major activities. Nor does he assert that he has a record of such an impairment, i.e., that he "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. 1630.2(k). What he does claim is that Tammac perceived him to be disabled as a result of his heart condition. A person is "regarded as" having a disability if that person: (1) has a physical impairment that does not substantially limit major life activities but is treated by the defendant as substantially limiting a major life activity; (2) has a physical impairment that substantially limits major life activities only as a result of the attitudes of others towards such impairment; or (3) has no impairment at all but is nonetheless treated by the defendant as having a substantially limiting impairment. See Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3d Cir.1999); 29 C.F.R. § 1630.2(l). As Justice O'Connor explained in Sutton, 527 U.S. at 489, 119 S.Ct. 2139, the "regarded as disabled" component of the definition of a disability requires that a defendant "entertain misperceptions about the individual he must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often `resul[t] from stereotypic assumptions not truly indicative of ... individual ability.'" In a "regarded as" case, such as this one, the analysis "focuses not on [plaintiff] and his actual abilities, but rather on the reactions and perceptions of the persons interacting or working with him." Kelly v. Drexel University, 94 F.3d 102, 108-09 (3d Cir.1996). The test, moreover, is not whether the employer harbored some unsubstantiated bias with respect to the employee's actual or perceived impairment; instead, the question is whether the employer "treated plaintiff adversely because it regarded him as having an impairment that substantially limits one or more major life activities." Weber v. Strippit, Inc., 186 F.3d 907, 915 (8th Cir.1999), cert. denied, 528 U.S. 1078, 120 S.Ct. 794, 145 L.Ed.2d 670 (2000). "Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment ... are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." Sutton, 527 U.S. at 490-91, 119 S.Ct. 2139. At this stage of this case, it is incumbent upon Davis to present some evidence supporting 631 a rational inference that Tammac regarded his heart condition as substantially limiting a major life activity. Davis suggests that the major life activity that Tammac perceived to be limited by his heart condition was "working." "[T]o be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job." Murphy v. United Parcel Service, Inc., 527 U.S. 516, 523, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999). In other words, there must be evidence from which it may logically be inferred that Tammac perceived Davis' heart condition as significantly restricting his ability "to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). Without citing any evidence, Davis asserts that "[s]ociety views people with heart conditions and similar disorders as fragile and weak," and that "[t]here is generally a concern that any kind of stress or pressure can trigger a heart attack in someone with a heart condition." (Plf's Br. in Opp. to S.J.Mot. at 5.) In addition to failing to cite any evidence that substantiates the existence of this purported societal opinion, Davis does not cite any evidence that Tammac's decision-makers held such a view. Thus, this is not a case like Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir.1998), on which Davis relies, where there was evidence that the employer had come to the conclusion, albeit erroneous, that a wrist injury substantially limited what the plaintiff could do and a vocational expert explained the import of the erroneous perception insofar as the employability of the employee was concerned. Nor is this the kind of case contemplated in 29 C.F.R. Pt. 1630 app. § 1630.2(l), indicating that a "regarded as" disabled employee may be a person with hypertension who is reassigned to less strenuous work because of the employer's unsubstantiated fear that the person will suffer a heart attack. There is simply no evidence in this case that Tammac reduced Davis' responsibilities or limited his work because of some unsubstantiated concern for his health. Davis contends that Tambur and Smith, Tammac's management, considered him to be weak and fragile after his surgery, and that his subsequent termination was a direct result of that misconception. That Tammac was aware of his heart surgery is not sufficient to establish that Tammac thereafter considered Davis to be disabled. Kelly, 94 F.3d at 105 ("the mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that the perception caused the adverse employment action"); see also Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998) (same); Aucutt v. Six Flags Over Mid-America Inc., 85 F.3d 1311, 1319 (8th Cir.1996) (same); Callan v. Amdahl Corp., No. C-94-0295-VRW, 1995 WL 261420, at 3 (N.D.Cal. April 24, 1995) ("evidence of an employer's awareness of an employee having had major surgery is not evidence that the employee's termination was on account of that surgery"). Rather, the undisputed facts show that upon returning to work after his heart surgery, neither Davis' physician nor Tammac placed any restrictions on his job. Davis testified that he worked the same hours and performed the same amount of training as before his heart surgery. Davis further asserts a perception of disability may be inferred from the fact that he was no longer privy to management discussions after returning to work after his heart attack, and that Smith's attitude towards him changed. Even assuming that this is true, Davis has failed to show how this change in attitude translates into a belief that Davis was substantially limited in his ability to work. See Robb v. Horizon Credit Union, 66 F.Supp.2d 913, 919 (C.D.Ill.1999) (a perceived impairment does not rise to the 632 level of a protected disability under the ADA). Moreover, termination from a particular job is not sufficient to establish a "regarded as disabled" claim. See Sutton, 527 U.S. at 492, 119 S.Ct. 2139 (plaintiffs' allegations that defendant regarded their poor vision as preventing them from being global airline pilots did not support regarded as disabled claim because the position of global airline pilot was merely a single job which they could not perform); Nielsen v. Moroni Feed Co., 162 F.3d 604, 611 (10th Cir.1998) (summary judgment affirmed where plaintiff merely presented evidence that the defendant did not consider him fit for a particular job, and failed to present evidence that the defendant believed his disability restricted his ability to perform a class of jobs). Further belying Davis' contention is the fact that shortly after his termination from TCS, Tammac offered him the opportunity to head a new sub-par financing program.[8] Although Davis was later terminated from that position as well, Davis has offered no evidence as to actions taken or statements made by Tammac's management while he was working in the sub-par financing program that would support his disability discrimination claim based on his termination from that position. As the court noted in Harrington v. Rice Lake Weighing Systems Inc., 122 F.3d 456, 461 (7th Cir.1997): absent any indication prior to [plaintiff's] discharge, the discharge alone does not evince that [defendant] regarded [the plaintiff] as disabled. The notion that [the defendant] must have fired [plaintiff] because it regarded him as disabled and that it plainly regarded him as disabled because it fired him is attractive but circular it lacks a causal antecedent. Davis' final argument is that two other individuals at Tammac, specifically Mr. Steinkircher and Mr. Grabosky, were also terminated after having heart attacks, thus leading to the inference that Tammac also considered him to be disabled. This evidence is not sufficient to create an issue of material fact as to whether Davis was "regarded as" disabled. Davis has provided mere generalizations rather than specific facts as to the circumstances of Mr. Steinkirchner and Grabosky's medical conditions and their termination from employment. Mr. Steinkirchner's complaint was limited to age discrimination. Recently, I granted Tammac's summary judgment motion as to Mr. Grabosky's disability discrimination claim, pointing out that there was no evidence that Tammac regarded him as disabled and that speculation as to Tammac's motives was insufficient to support an inference that Tammac regarded Grabosky as disabled. Grabosky v. Tammac Corp., 127 F.Supp.2d 610, 616-18 (M.D.Pa.2000). The coincidental existence of cardiac-related conditions in other workers who are terminated is, by itself, insufficient to support an inference that the employer regarded the workers as incapable of gainful employment. The ADA "is not a general protection of medically afflicted persons.... [I]f the employer discriminates against them on account of their being (or being believed by him to be) ill, even permanently ill, but not disabled, there is no violation." Harrington, 122 F.3d at 460. Because Davis has not presented competent evidence that Tammac perceived him to be substantially limited in any major life activity, Tammac is entitled to summary judgment on the ADA claim.[9] 633 2. Age Discrimination[10] Tammac contends that Davis has failed to present a prima facie case of age discrimination, and, in any event, cannot establish that the reasons behind his termination were pretextual. To establish a prima facie case of age discrimination, a plaintiff must show: (1) that s/he belongs to the protected class, i.e., is at least 40 years old; (2) s/he was qualified for the position; (3) s/he was dismissed despite being qualified; and (4) was replaced by a person sufficiently younger to permit an inference of age discrimination. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc); Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.), cert. denied, 515 U.S. 1159, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995). There is no dispute that Davis satisfies the first three prongs of his prima facie case. He was 49 years old at the time of his termination, he was qualified for the position he held, and he suffered an adverse employment action. Tammac claims that Davis cannot establish the final prong because he was not replaced by a person outside of the protected class, and other sufficiently younger persons were not treated more favorably. Although age discrimination may be inferred from a showing that the plaintiff was replaced by a sufficiently younger person, or that other younger persons were treated more favorably, the Third Circuit has held that a plaintiff does not have to prove replacement or favorable treatment of a person outside the protected class in order to establish a prima facie case of employment discrimination. See Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 938 (3d Cir.1997). As the United States Supreme Court explained in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), a prima facie case of age discrimination does not require that plaintiff show that he or she was replaced by someone outside of the protected class, but merely requires "`evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion ....'" (citing Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)); accord Pivirotto v. Innovative Systems Inc., 191 F.3d 344 (3d Cir.1999) (reiterating same standard for Title VII cases). In denying Tammac's summary judgment motion in Grabosky's case, I found the applicable case law warranted the following conclusion: It is enough that the plaintiff present evidence sufficient to establish an inference that the employment decision was based on the plaintiff's age. Danas v. Chapman Ford Sales, Inc., 120 F.Supp.2d 478, 484 (E.D.Pa.2000). While a plaintiff could establish this element by showing that "adverse employment action was taken to the detriment of a member of the protected class and to the benefit of another, significantly younger worker," id. at 486, a plaintiff is not required to do so. After all, the concept of a prima facie case was not intended to be "rigid, mechanized, or ritualistic." Furnco Construction Corp., 438 U.S. at 577, 98 S.Ct. 2943. "[A] prima facie case cannot be established on a one-size-fits-all basis." Jones v. School District of Philadelphia, 198 F.3d 403, 411 (3d Cir.1999). Requiring a terminated plaintiff to show replacement by a younger person is a mechanistic and ritualistic approach that may serve to defeat otherwise meritorious claims. This is so because "[t]he replacement of a terminated plaintiff with an individual who shares the plaintiff's 634 protected attribute does not necessarily negate the inference that the plaintiff was unlawfully discriminated against." Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir.1999), cert. denied, 529 U.S. 1110, 120 S.Ct. 1964, 146 L.Ed.2d 796 (2000). Grabosky v. Tammac Corp., 127 F.Supp.2d at 620-21 (M.D.Pa.2000). Of course, merely showing membership in a protected class along with termination from a position for which the plaintiff was qualified is not enough to raise an inference of illegal discrimination. In this case, Davis has presented evidence sufficient to support an inference that age was a motivating factor in the decision to fire him. Davis has asserted that while he was working at TCS, Smith told him that Root, the marketing representative for Allentown, was going to be promoted and that he would fill Root's position. At the time of his termination from TCS, Smith told Davis that Root's position would not be available, and that there were no other positions available within the auto lease division. Within six months of Davis' termination from TCS, marketing representatives were hired in various territories, all of whom were under the age of 40. The marketing representative position which Davis was allegedly promised was filled by John Senick while Davis was working in the sub-par financing unit. Senick was significantly younger than Davis (i.e., 39) at the time he was hired. Davis has also provided facts that show that his youthful assistant in the sub-par financing was not terminated when the division was closed. Although the evidence is not extensive, there is enough to satisfy a prima facie case.[11] Tammac has provided legitimate non-discriminatory reasons for its decisions. According to Tammac, Davis was terminated from TCS because the unit was not profitable, and was terminated from the sub-par financing division because the business lost its funding source. With respect to the marketing representative position in Allentown, Tammac asserts that Davis was never considered for the position and John Senick was hired because of his experience and knowledge of the marketing area. Because Tammac has asserted legitimate non-discriminatory reasons for Davis' termination, Davis must provide evidence that would raise an inference of pretext in order to survive summary judgment. Although it is undisputed that TCS was unprofitable, Davis contends that Tammac never intended TCS to be profitable, but instead designed the division as a loss leader. Davis asserts that neither Smith nor Tambur was concerned about the profitability of the division until after Davis suffered a heart attack. Moreover, the extent of the losses suffered by the division was small in comparison to the profits which the entire auto lease division, of which TCS was a part, earned during the same four year time period. With respect to the sub-par financing, Davis argues that the company had lost funding sources on prior occasions, but in those instances the particular division did not go out of business. Instead, Tammac sought new financing. The facts pertaining to the sub-par financing division show that Tammac did not attempt to get new financing before closing the division. Although it is undisputed that no positions were open at the time Davis was terminated, marketing representative positions did become available within a few months after Davis was terminated. Furthermore, with respect to the Allentown 635 marketing representative position, despite Smith's contention, Davis asserts that he had been promised the position. Had Tammac promised Davis the position, as he contends, the fact that the position was later given to a younger individual is sufficient to create an inference of age discrimination. Finally, Davis has presented sufficient evidence from which a rational inference could be drawn that decision-makers at Tammac were aware of his heart condition. Davis has also presented evidence that under the presidency of William J. Smith, which commenced in August of 1995, two other employees in the protected class with heart conditions or similar problems were terminated. As Judge McClure observed in denying summary judgment in Steinkirchner's case, the targeting for employment termination of employees over the age of 40 who have a heart condition or similar problem "could be viewed as a form of age discrimination". Steinkirchner v. Tammac Corp., No. 4:CV-98-0468 (M.D.Pa. Nov. 19, 1999). Because Davis has offered facts, albeit not abundant, to refute Tammac's alleged non-discriminatory reasons for termination, Tammac's motion for summary judgment will be denied.[12] CONCLUSION Because Davis has failed to provide sufficient evidence to show Tammac regarded him as disabled after his heart attack, Tammac's motion for summary judgment will be granted as to Davis' disability discrimination claims. There is evidence in the record, however, which supports Davis' age discrimination claim, and accordingly, summary judgment will be denied as to that claim. An appropriate Order is attached. ORDER NOW, this 28th day of December, 2000, for the reasons set forth in the foregoing memorandum, IT IS HEREBY ORDERED THAT: 1. Defendant's Motion for Summary Judgment (Dkt. Entry 20) is GRANTED IN PART and DENIED IN PART. a. As to Plaintiff's Age Discrimination Claims under the ADEA and PHRA, (Counts 1 and 3) Defendant's Motion is DENIED. b. As to the remainder of Plaintiff's claims, Defendant's Motion is GRANTED. 2. A telephonic scheduling conference will be conducted on January 19, 2001, at 9:00 a.m. Counsel for plaintiff shall be responsible for making the arrangements for the conference call. NOTES [1] The Automobile Leasing Division was started in 1981. The purpose of the division was to obtain commitments from car dealers to use lease financing packages offered by a local bank with whom Tammac had contracted. If an automobile was leased through such a bank, the bank would pay Tammac a fee, and in exchange, Tammac would provide certain services to the bank. Because sales dealers could recommend different banks for the leases, Tammac tried to establish a favorable relationship with the dealers. Initially, Tammac solicited car dealerships in Luzerne, Lackawanna and Monroe Counties. Between 1981 and 1991, the division expanded into other areas of Pennsylvania, as well as New England. Tammac hired marketing representatives for the various territories, whose responsibilities included soliciting dealers to offer the lease financing packages of the banks with whom Tammac had contracted. The marketing representatives were hired partially on their knowledge of leasing and familiarity with the dealer base in a given area. As of 1991, Tammac employed seven marketing representatives in the Automotive Leasing Division. In 1995, Tammac further expanded its territories into New Hampshire, Maine, West Virginia, Ohio, Mississippi, New York, Maryland and Florida. Marketing representatives were hired for each of these new territories. [2] Davis was paid a $50,000 salary with benefits and a company car, but no commission. In comparison, the marketing representatives in the auto lease division were paid $25,000 plus commissions. [3] Smith was senior vice president at the time plaintiff was hired, and was promoted to President of Tammac in 1995. Smith was 42 years old at the time Davis was terminated. [4] At the time of his termination, there were no vacant marketing representative positions in the Wilkes Barre area. [5] John Senick was a former employee of Tammac who left the company in 1994 to start his own business. Senick, at the time he left the company in 1994, was an auto lease marketing representative in the Reading territory. Senick was 39 years old when he returned to Tammac in January 1996. [6] Claims brought under the PHRA are analyzed under the same standards as their federal counterparts. See Connors v. Chrysler Financial Corp., 160 F.3d 971, 972 (3d Cir. 1998); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996) (Title VII, ADA, ADEA); Fosburg v. Lehigh University, No. Civ. A. 98-CV-864, 1999 WL 124458, at 7 (E.D.Pa. March 4, 1999). [7] In Sutton, the Court questioned whether "working" should be included as a "major life activity," observing that "it seems `to argue in a circle to say that if one is excluded, for instance by reason of [an impairment, from working with others] ... then that exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap.'" 527 U.S. at 492, 119 S.Ct. 2139. [8] Davis suggests that the sub-par financing position was actually a "phony" position, created solely for Tammac to protect themselves from liability concerning his termination in 1995. He bases this contention on the fact that he was paid $20,000 less in this position, that the program was terminated after only a few months and that a market survey was never performed. Such evidence may be relevant to show pretext, but fails to create an issue of material fact as to whether Tammac regarded Davis as disabled. [9] Because the same standards apply to Davis' disability claim under the PHRA, summary judgment will also be granted as to that claim. [10] The PHRA claim is subject to the same standards as the ADEA claim. See Kelly, 94 F.3d at 105; Trimble v. Westinghouse Electric Corp., No. Civ. A. 97-7528, 1999 WL 768307, at 5 (E.D.Pa. Sept.29, 1999) [11] In his brief, Davis refers to an alleged comment made by Tambur, Smith and Mattas that certain individuals did not "look like us." Comments by a decision maker will not constitute direct evidence of discrimination unless they relate to the decisional process itself. See Bullock v. Children's Hospital of Philadelphia, 71 F.Supp.2d 482, 486 (E.D.Pa.1999) (citing Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 545 (3d Cir.1992)). On its face, this statement does not appear to relate to any decisional process. [12] The parties have agreed to dismissal of the intentional infliction of emotional distress claim and Davis' claim for punitive damages under the PHRA. Accordingly, these claims will be dismissed.
47 Cal.4th 272 (2009) ABIGAIL HERNANDEZ et al., Plaintiffs and Appellants, v. HILLSIDES, INC., et al., Defendants and Respondents. No. S147552. Supreme Court of California. August 3, 2009. 276 Eisenberg & Associates, Arnold Kessler and Mark S. Eisenberg for Plaintiffs and Appellants. Seyfarth Shaw, Laura Wilson Shelby, Holger G. Besch, Candice Zee and Amy C. Chang for Defendants and Respondents. Paul, Hastings, Janofsky & Walker, Paul W. Cane, Jr., and Teresa J. Hutson for Employers Group and California Employment Law Council as Amici Curiae on behalf of Defendants and Respondents. OPINION BAXTER, J. Defendants Hillsides, Inc., and Hillsides Children Center, Inc. (Hillsides), operated a private nonprofit residential facility for neglected and 277 abused children, including the victims of sexual abuse. Plaintiffs Abigail Hernandez (Hernandez) and Maria-Jose Lopez (Lopez) were employed by Hillsides. They shared an enclosed office and performed clerical work during daytime business hours. Defendant John M. Hitchcock (Hitchcock), the director of the facility, learned that late at night, after plaintiffs had left the premises, an unknown person had repeatedly used a computer in plaintiffs' office to access the Internet and view pornographic Web sites. Such use conflicted with company policy and with Hillsides's aim of providing a safe haven for the children. Concerned that the culprit might be a staff member who worked with the children, and without notifying plaintiffs, Hitchcock set up a hidden camera in their office. The camera could be made operable from a remote location, at any time of day or night, to permit either live viewing or videotaping of activities around the targeted workstation. It is undisputed that the camera was not operated for either of these purposes during business hours, and, as a consequence, that plaintiffs' activities in the office were not viewed or recorded by means of the surveillance system. Hitchcock did not expect or intend to catch plaintiffs on tape. Nonetheless, after discovering the hidden camera in their office, plaintiffs filed this tort action alleging, among other things, that defendants intruded into a protected place, interest, or matter, and violated their right to privacy under both the common law and the state Constitution. The trial court granted defendants' motion for summary judgment and dismissed the case. The Court of Appeal reversed, finding triable issues that plaintiffs had suffered (1) an intrusion into a protected zone of privacy that (2) was so unjustified and offensive as to constitute a privacy violation. Defendants argue here, as below, that, absent evidence they targeted and either viewed or recorded plaintiffs as part of the surveillance scheme, there could be, as a matter of law, no actionable invasion of privacy on an intrusion theory. Hence, they insist, the Court of Appeal erred in reinstating that claim. We agree with defendants that the trial court properly granted their motion for summary judgment. However, we reach this conclusion for reasons more varied and nuanced than those offered by defendants. On the one hand, the Court of Appeal did not err in determining that a jury could find the requisite intrusion. While plaintiffs' privacy interests in a shared office at work were far from absolute, they had a reasonable expectation under widely held social norms that their employer would not install video equipment capable of monitoring and recording their activities personal and work relatedbehind closed doors without their knowledge or consent. 278 On the other hand, the Court of Appeal erroneously found a triable issue as to whether such intrusion was highly offensive and sufficiently serious to constitute a privacy violation. Any actual surveillance was drastically limited in nature and scope, exempting plaintiffs from its reach. Defendants also were motivated by strong countervailing concerns. We therefore will reverse the Court of Appeal's judgment insofar as it allowed the privacy claim to proceed to trial. FACTS In September 2003, plaintiffs Hernandez and Lopez filed this suit against defendants Hillsides and Hitchcock over the use of video surveillance equipment in plaintiffs' office. The complaint set forth three related causes of action in tort, and sought compensatory and punitive damages. The first cause of action alleged an invasion of privacy, alluding to principles and authorities under both the common law (see Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200 [74 Cal.Rptr.2d 843, 955 P.2d 469] (Shulman)) and the state Constitution (see Cal. Const., art I, § 1; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633] (Hill)). The other two claims alleged intentional and negligent infliction of emotional distress. In December 2004, after the parties engaged in discovery, defendants moved for summary judgment. The motion attached numerous supporting documents. They included the declarations of both defendant Hitchcock and Tom Foster (Foster), the computer specialist at Hillsides, and excerpts from the depositions of Hitchcock and plaintiffs Hernandez and Lopez. In opposing summary judgment, plaintiffs submitted additional excerpts from the same depositions, as well as declarations each of them had prepared. Based on these submissions, the following facts appear to be essentially undisputed. Hillsides was established in 1913, and is affiliated with the Episcopal Church. First operated as an orphanage, Hillsides later became a residential treatment center for children, ranging in age from six to 18. At the time of the events herein, 66 boys and girls lived at its facility in Pasadena. Typically, before entering Hillsides, the children had lived in foster homes and had been the victims of emotional, physical, and sexual abuse. Such abuse included exposure to and participation in pornography. Working in conjunction with child welfare authorities, Hillsides offered programs to assist residents with academic, psychological, and behavioral problems. The campus consisted of 12 buildingsfive that housed the children, and seven that were used for administrative, academic, and other purposes. The 279 grounds were open to the public, but certain security measures were in place. For instance, Hillsides required employees to carry photo identification at work, and issued temporary badges to all visitors. Any visitor caught wandering on the grounds without a badge was directed or escorted to the receptionist at the main entrance of the facility. The residence halls were locked at all times. Other buildings were unlocked only during regular daytime business hours. Alarms sounded for any unauthorized entry. In addition, security personnel, or "program directors," patrolled the premises. They worked every day, around the clock, with more of them on duty during the day than at night. The program directors also monitored televised images transmitted from four cameras stationed outside some of the buildings. These exterior cameras captured and recorded certain views of the parking lot, the administration building, and the main entrance of the facility, where visitors entered. No similar camera system was permanently installed inside any building. Plaintiffs Hernandez and Lopez performed clerical work during daytime business hours at Hillsides. When they were hired in 1996 and 1999, respectively, they signed disclosure statements and underwent background screening procedures required by law of persons working at licensed childcare facilities. This process included fingerprint and criminal record checks, and an agreement to report any child abuse witnessed or suspected while working at Hillsides. Beginning in 2001, plaintiffs shared an office in the administrative building at Hillsides. Each woman had her own desk and computer workstation. The office had three windows on exterior walls. Blinds on the windows could be opened and closed. The office also had a door that could be closed and locked. A "doggie" door near the bottom of the office door was missing its flap, creating a small, low opening into the office. Several people, besides plaintiffs, had keys to their office: five administrators, including Hitchcock, and all of the program directors. Hernandez estimated that there were five program directors. Hitchcock counted eight of them. According to plaintiffs, they occasionally used their office to change or adjust their clothing. Hernandez replaced her work clothes with athletic wear before leaving Hillsides to exercise at the end of the day. Two or three times, Lopez raised her shirt to show Hernandez her postpregnancy figure. Both women stated in their declarations that the blinds were drawn and the door was closed when this activity occurred. Hernandez also recalled the door being locked when she changed clothes. On or before August 22, 2002, Hillsides circulated an "E-Mail, Voicemail and Computer Systems Policy." This document stated that it was intended to 280 prevent employees from using Hillsides's electronic communications systems in a manner that defamed, harassed, or harmed others, or that subjected the company to "significant legal exposure." Illegal and inappropriate activity was prohibited, such as accessing sexually offensive Web sites or displaying, downloading, or distributing sexually explicit material. The policy further contemplated the use of electronic "[p]ersonal passwords." However, it warned employees that they had "no reasonable expectation of privacy in any ... use of Company computers, network and system." Along the same lines, the policy advised that all data created, transmitted, downloaded, or stored on the system was Hillsides's property, and that the company could "monitor and record employee activity on its computers, network ... and e-mail systems," including "e-mail messages[,] ... files stored or transmitted[,] and ... web sites accessed."[1] Plaintiffs acknowledged the existence of the foregoing policy in their depositions. Indeed, both testified that, as employees of Hillsides, they were not allowed to access pornographic Web sites from their computers at work. They indicated that such conduct would conflict with Hillsides's mission to provide a safe environment for the abused and vulnerable children in its care. Hernandez described such conduct as "wrong," "illegal," and "unethical." Lopez agreed with this assessment. In order to ensure compliance with Hillsides's computer policy and restrictions, Foster, the computer specialist, could retrieve and print a list of all Internet Web sites accessed from every computer on the premises. The network server that recorded and stored such information could pinpoint exactly when and where such Web access had occurred. In July 2002, Foster determined that numerous pornographic Web sites had been viewed in the late-night and early-morning hours from at least two different computers. One of them was located in the computer laboratory, or classroom. The other one sat on the desk Lopez used in the office she shared with Hernandez. The evidence indicated that Lopez's computer could have been accessed after hours by someone other than her, because she did not always log off 281 before going home at night. Hitchcock explained in his deposition that employees were expected to turn off their computers when leaving work at the end of the day, that a personal password was required to log onto the computer again after it had been turned off, and that this policy was communicated orally to employees when their computers were first assigned. He admitted that he did not remind plaintiffs of this procedure before taking the surveillance steps at issue here. Nonetheless, Lopez noted in her declaration that "[o]nce [her] computer at Hillsides was turned off, it required the input of a secret password in order to be accessed again." Foster told defendant Hitchcock about the inappropriate Internet use, and showed him printouts listing the pornographic Web sites that had been accessed. Given the odd hours at which such activity had occurred, Hitchcock surmised that the perpetrator was a program director or other staff person who had unfettered access to Hillsides in the middle of the night. Hitchcock did not blame any of the children, because they would have been under supervision and asleep in the residence halls at the time. Nor did he suspect plaintiffs. They typically were gone from the premises when the impermissible nighttime computer use occurred. In light of these circumstances, Hitchcock decided to use video equipment Hillsides already had in its possession to record the perpetrator in the act of using the computers at night. He told other administrators about the problem and his surveillance plan. Hitchcock explained in both his deposition and declaration that he sought to protect the children from any staff person who might expose them to pornography, emphasizing the harm they had endured before entering Hillsides.[2] With Foster's assistance, Hitchcock initially installed the video equipment in the computer laboratory from which some of the pornographic Web sites 282 had been accessed. However, because so many people used the laboratory for legitimate reasons during and after business hours, Hitchcock decided instead to conduct surveillance in the office that plaintiffs shared. He did not inform plaintiffs of this decision. He reasoned that the more people who knew and "gossiped" about the plan, the greater the chance the culprit would hear about it and never be identified or stopped. Hence, at some point during the first week of October 2002, Hitchcock and Foster installed video recording equipment in plaintiffs' office and in a storage room nearby. First, in plaintiffs' office, they positioned a camera on the top shelf of a bookcase, among some plants, where it apparently was obscured from view. They also tucked a motion detector into the lap of a stuffed animal or toy sitting on a lower shelf of the same bookcase. Second, these devices connected remotely to a television that Hitchcock and Foster moved into the storage room. A videocassette recorder was built into the unit. The television had a 19-inch monitor on which images could be viewed. Hitchcock explained the system's operation in his deposition as follows: Through wireless technology, the camera broadcast images to the television monitor, and the motion detector operated the videocassette recorder. The recorder would "run as long as there [was] motion in that room to keep it activated." Once installed in plaintiffs' office, both the camera and the motion detector were always plugged into the electrical system, and therefore were capable of operating "all the time." However, in order for the camera to display an image on the monitor, and for the motion detector to trigger a recording of that image, a wireless "receptive device" in the storage room needed to be plugged intoi.e., "connected" and "engaged" tothe television set. Hitchcock further testified that if these wireless receptors were unplugged, disconnected, or disengaged, then the camera and motion detector were not "activated," and nothing was displayed or recorded on the television equipment. Hitchcock was not the only person with access to the storage room and the video surveillance equipment inside. Plaintiffs each stated in their declarations that "several supervisory employees and program directors had keys and access to that storage room." Hitchcock stated in his deposition that he knew of only two employees with keys to the storage room, Susanne Crummey and Ramona McGee, and that the location was locked and "secure." Crummey and another administrator, Stacey Brake, were the only people other than Hitchcock and Foster who knew that the video equipment in the storage room was specifically set up to monitor plaintiffs' office. Hitchcock rarely activated the camera and motion detector in plaintiffs' office, and never did so while they were there. His deposition testimony 283 addressed these circumstances as follows: On three occasions, Hitchcock connected the wireless receptors to the television in the storage room after plaintiffs left work for the day, and then disconnected the receptors the next morning, before plaintiffs returned to work. On one such morning, he also removed the camera from the office, and returned it later, when plaintiffs were gone for the night. In short, the camera and motion detector were always disabled during the workday, such that "there was no picture showing" and "no recording going on" while plaintiffs were in their office. Hitchcock further stated that between installation of the equipment in early October 2002, and his decision to remove it three weeks later, no one was videotaped or caught using the computer in plaintiffs' office. He assumed that the culprit had learned about the camera and stopped engaging in unauthorized activity.[3] Meanwhile, about 4:30 p.m. on Friday, October 25, 2002, plaintiffs discovered the video equipment in their office. A red light on the motion detector flashed at the time. The cord attached to the camera was plugged into the wall and was hot to the touch. Shocked by the discovery, plaintiffs immediately reported it to two supervisors, Sylvia Levitan and Toni Aikins. Levitan called Hitchcock, who was at home. A program director helped remove the camera from plaintiffs' office and lock it in Levitan's office for safekeeping. A short time later, Hitchcock called Hernandez in her office. He apologized for installing the camera, and said the surveillance was not aimed at plaintiffs, but at an intruder who had used Lopez's computer to access inappropriate Web sites. Hernandez expressed concern that she was videotaped while changing her clothes or that "personal stuff" in her office was somehow disturbed. Hitchcock replied by assuring Hernandez that "the only time we 284 activated that camera and the video recorder was after you left at night and [we] deactivated the two devices before you came to work in the morning. [¶] . . . [A]t no time did [we] ever capture [you] or [Lopez] on the tape." During this conversation, Hitchcock asked to speak with Lopez, but learned she had left the office for the day. Hitchcock twice tried contacting Lopez over the next two days, which fell on a weekend, but did not reach her. Plaintiffs did not return to work until Wednesday, October 30, 2002. That morning, they met for 30 minutes with both defendant Hitchcock and Aikins, their supervisor. Hitchcock essentially repeated the substance of his prior conversation with Hernandez. He apologized and explained the reason for installing the camera in plaintiffs' office, and assured them that they were not the targets of the surveillance and had not been videotaped. During this meeting, Lopez asked to see the surveillance videotape. Hitchcock agreed. The group went to Hitchcock's office and watched the tape on his television set. According to the depositions of both plaintiffs, there was not much to see. No one appeared on the tape except for Hitchcock, who was briefly seen setting up the camera and moving around inside plaintiffs' office. The only other recorded images were of Lopez's empty desk and computer, the surrounding work area, some closets, and the entrance to the office. No sound accompanied the playing of the tape. Hitchcock never indicated to plaintiffs that any audio recording was made, or that the camera could record sound.[4] Based on the foregoing facts, the trial court found no triable issue as to any cause of action stated in the complaint, granted summary judgment in defendants' favor, and dismissed the action. The court agreed with defendants that there had been no intrusion on plaintiffs' reasonable expectations of privacy. In this regard, the court emphasized the lack of evidence that plaintiffs "were secretly observed or recorded by way of a hidden camera located in their office.... [I]t is undisputed that the camera was only connected to a video monitor and to recording equipment on three occasions, all of which occurred after working hours when Plaintiffs were not present." Alternatively, the trial court concluded that any privacy expectations plaintiffs had in their joint office were "diminished," and were "overcome by Defendants' right to a safe environment for its children." The Court of Appeal reversed as to the invasion-of-privacy count. Critical to the court's analysis on appeal was the placement in plaintiffs' office of a 285 functioning hidden camera, capable of transmitting images that could be viewed or recorded by anyone who had access to the storage room and who activated the wireless remote controls. According to the appellate court, plaintiffs had a reasonable expectation to be free from this kind of intrusion in the workplace, notwithstanding evidence that they were never viewed or recorded and that they worked in a shared office to which others had access. For similar reasons, and even assuming defendants were merely trying to stop an intruder's inappropriate use of the computers at night, the Court of Appeal concluded that defendants' conduct was highly offensive. However, for reasons not challenged or relevant here, the Court of Appeal agreed with the trial court that plaintiffs had not presented triable claims for intentional and negligent infliction of emotional distress, and that such counts should be dismissed. Defendants petitioned for review on the ground the Court of Appeal erred in not affirming the judgment in its entirety and reversing the trial court's dismissal of the invasion-of-privacy count. We granted review.[5] DISCUSSION A. Summary Judgment Rules A grant of summary judgment is proper where it appears no triable issues of material fact exist, and judgment is warranted as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Miller v. Department of Corrections, supra, 36 Cal.4th 446, 460.) As the moving party, the defendant must show that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case" on one or more elements of the cause of action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [107 Cal.Rptr.2d 617, 23 P.3d 1143]; accord, Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720 [68 Cal.Rptr.3d 746, 171 P.3d 1082].) The reviewing court independently examines the record and considers all of the evidence set forth in the moving and opposing papers except that as to which objections have been made and sustained. (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th 264, 274; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089]; see Guz, at p. 335, fn. 7.) B. General Privacy Principles Defendants (joined by their amici curiae) argue here, as below, that they did nothing wrong in attempting to videotape a nighttime intruder using the 286 computer in plaintiffs' office, because no private information about plaintiffs was obtained. Defendants insist that plaintiffs, not being the intended targets of the surveillance plan, were never viewed or recorded, and thereby suffered no serious or actionable intrusion into their private domain. Plaintiffs disagree and urge us to adopt the Court of Appeal's approach in the present case. They insist that defendants were able to view and record plaintiffs at will, without their knowledge or consent, and unjustifiably deprived them of the privacy they reasonably expected to have while working behind closed doors in their shared office. The foregoing arguments have been framed throughout this action in terms of both the common law and the state Constitution. These two sources of privacy protection "are not unrelated" under California law. (Shulman, supra, 18 Cal.4th 200, 227; accord, Hill, supra, 7 Cal.4th 1, 27; but see Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 313, fn. 13 [127 Cal.Rptr.2d 482, 58 P.3d 339] [suggesting it is an open question whether the state constitutional privacy provision, which is otherwise self-executing and serves as the basis for injunctive relief, can also provide direct and sole support for a damages claim].) Such privacy principles provide the framework for our analysis, as follows. (1) A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person. (Shulman, supra, 18 Cal.4th 200, 231, approving and following Rest.2d Torts, § 652B; Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1482 [232 Cal.Rptr. 668] (Miller); accord, Taus v. Loftus (2007) 40 Cal.4th 683, 724-725, 731 [54 Cal.Rptr.3d 775, 151 P.3d 1185] (Taus).) These limitations on the right to privacy are not insignificant. (Miller, supra, at p. 1482.) Nonetheless, the cause of action recognizes a measure of personal control over the individual's autonomy, dignity, and serenity. (Shulman, supra, at p. 231.) The gravamen is the mental anguish sustained when both conditions of liability exist. (Miller, supra, at pp. 1484-1485.) As to the first element of the common law tort, the defendant must have "penetrated some zone of physical or sensory privacy ... or obtained unwanted access to data" by electronic or other covert means, in violation of the law or social norms. (Shulman, supra, 18 Cal.4th 200, 232; see id. at pp. 230-231.) In either instance, the expectation of privacy must be "objectively reasonable." (Id. at p. 232.) In Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907 [85 Cal.Rptr.2d 909, 978 P.2d 67] (Sanders), a leading case on workplace privacy that we discuss further below, this 287 court linked the reasonableness of privacy expectations to such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred. (Id. at p. 923; see Shulman, supra, 18 Cal.4th 200, 233-235.) The second common law element essentially involves a "policy" determination as to whether the alleged intrusion is "highly offensive" under the particular circumstances. (Taus, supra, 40 Cal.4th 683, 737.) Relevant factors include the degree and setting of the intrusion, and the intruder's motives and objectives. (Shulman, supra, 18 Cal.4th 200, 236; Miller, supra, 187 Cal.App.3d 1463, 1483-1484.) Even in cases involving the use of photographic and electronic recording devices, which can raise difficult questions about covert surveillance, "California tort law provides no bright line on [`offensiveness']; each case must be taken on its facts." (Shulman, supra, at p. 237.) (2) The right to privacy in the California Constitution sets standards similar to the common law tort of intrusion. (Hill, supra, 7 Cal.4th 1, 27.)[6] Under this provision, which creates at least a limited right of action against both private and government entities (7 Cal.4th at p. 20), the plaintiff must meet several requirements. First, he must possess a legally protected privacy interest. (Hill, supra, 7 Cal.4th 1, 35.) These interests include "conducting personal activities without observation, intrusion, or interference" (ibid.), as determined by "established social norms" derived from such sources as the "common law" and "statutory enactment" (id. at p. 36). Second, the plaintiff's expectations of privacy must be reasonable. This element rests on an examination of "customs, practices, and physical settings surrounding particular activities" (ibid.), as well as the opportunity to be notified in advance and consent to the intrusion. (Id. at pp. 36-37.) Third, the plaintiff must show that the intrusion is so serious in "nature, scope, and actual or potential impact [as] to constitute an egregious breach of the social norms." (Id. at p. 37; accord, Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 [89 Cal.Rptr.3d 594, 201 P.3d 472] (Sheehan); Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370-371 [53 Cal.Rptr.3d 513, 150 P.3d 198] (Pioneer).) (3) Hill and its progeny further provide that no constitutional violation occurs, i.e., a "defense" exists, if the intrusion on privacy is justified by one 288 or more competing interests. (Hill, supra, 7 Cal.4th 1, 38.) For purposes of this balancing functionand except in the rare case in which a "fundamental" right of personal autonomy is involvedthe defendant need not present a "`compelling'" countervailing interest; only "general balancing tests are employed." (Id. at p. 34.) To the extent the plaintiff raises the issue in response to a claim or defense of competing interests, the defendant may show that less intrusive alternative means were not reasonably available. (Id. at p. 38.) A relevant inquiry in this regard is whether the intrusion was limited, such that no confidential information was gathered or disclosed. (Ibid.; accord, Sheehan, supra, 45 Cal.4th 992, 998-999; Pioneer, supra, 40 Cal.4th 360, 371.) In light of the foregoing, we will assess the parties' claims and the undisputed evidence under the rubric of both the common law and constitutional tests for establishing a privacy violation. Borrowing certain shorthand language from Hill, supra, 7 Cal.4th 1, which distilled the largely parallel elements of these two causes of action, we consider (1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests. (Id. at pp. 27, 34.) C. Intrusion upon Reasonable Privacy Expectations For reasons we now explain, we cannot conclude as a matter of law that the Court of Appeal erred in finding a prima facie case on the threshold question whether defendants' video surveillance measures intruded upon plaintiffs' reasonable expectations of privacy. Plaintiffs plausibly maintain that defendants cannot prevail on this element of the cause of action simply because they "never intended to view or record" plaintiffs, or because defendants did not "capture [plaintiffs'] images at all." Other significant factors not considered by defendants point favorably in plaintiffs' direction on this issue. (4) Our analysis starts from the premise that, while privacy expectations may be significantly diminished in the workplace, they are not lacking altogether. In Sanders, supra, 20 Cal.4th 907, a reporter working undercover for a national broadcasting company obtained employment alongside the plaintiff as a telepsychic, giving "readings" to customers over the phone. The reporter then secretly videotaped and recorded interactions with the plaintiff and other psychics using a small camera hidden in her hat and a microphone attached to her brassiere. The taping occurred in a large room containing 100 cubicles that were open on one side and on top, and from which coworkers could be seen and heard nearby. Visitors could not enter this area without permission from the front desk. Ultimately, the plaintiff sued the reporter and 289 the broadcasting company for violating his privacy after one of his secretly taped conversations aired on television. A jury verdict in the plaintiff's favor was reversed on appeal. The appellate court concluded that the plaintiff could not reasonably expect that actions and statements witnessed by co-workers would remain private and not be disclosed to third parties. (Id. at pp. 911-913 & fn. 1.) Relying on the elements of the intrusion tort set forth in Shulman, supra, 18 Cal.4th 200, we disagreed with the Court of Appeal in Sanders, and reversed the judgment. This court emphasized that privacy expectations can be reasonable even if they are not absolute. "[P]rivacy, for purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law." (Sanders, supra, 20 Cal.4th 907, 916.) In adopting this refined approach, Sanders highlighted various factors which, either singly or in combination, affect societal expectations of privacy. One factor was the identity of the intruder. (Sanders, supra, 20 Cal.4th 907, 918, 923.) We noted that the plaintiff in that case, and other employees, were deliberately misled into believing that the defendant reporter was a colleague, and had no reason to suspect she worked undercover to secretly tape their interactions for use in a national television program. (Id. at p. 921.) Also relevant in Sanders, supra, 20 Cal.4th 907, was the nature of the intrusion (id. at p. 918), meaning, both the extent to which the subject interaction could be "seen and overheard" and the "means of intrusion" (id. at p. 923). These factors weighed heavily in the plaintiff's favor: "[T]he possibility of being overheard by coworkers does not, as a matter of law, render unreasonable an employee's expectation that his or her interactions within a nonpublic workplace will not be videotaped in secret by a journalist." (Ibid.) We distinguished the situation in which "the workplace is regularly open to entry or observation by the public or press," or the subject interaction occurred between either the proprietor or employee of a business and a "customer" who walks in from the street. (Ibid.) The present case, of course, does not involve an imposter or "stranger to the workplace" who surreptitiously recorded and videotaped conversations that were later published without the speaker's consent. (Sanders, supra, 20 Cal.4th 907, 918.) Nor does it involve commercial interactions between the representatives of a business and its customers or other members of the public. Rather, defendants represent a private employer accused of installing electronic equipment that gave it the capacity to secretly watch and record 290 employee activities behind closed doors in an office to which the general public had limited access. As we discuss later with respect to the "offensiveness" element of plaintiffs' claim, an employer may have sound reasons for monitoring the workplace, and an intrusion upon the employee's reasonable privacy expectations may not be egregious or actionable under the particular circumstances. However, on the threshold question whether such expectations were infringed, decisional law suggests that is the case here. (5) Consistent with Sanders, supra, 20 Cal.4th 907, 922, which asks whether the employee could be "overheard or observed" by others when the tortious act allegedly occurred, courts have examined the physical layout of the area intruded upon, its relationship to the workplace as a whole, and the nature of the activities commonly performed in such places. At one end of the spectrum are settings in which work or business is conducted in an open and accessible space, within the sight and hearing not only of coworkers and supervisors, but also of customers, visitors, and the general public. (See Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1072-1073, 1078 [84 Cal.Rptr.2d 329] [holding for purpose of common law intrusion tort that businessmen lacked privacy in lunch meeting secretly videotaped on crowded outdoor patio of public restaurant]; see also Acosta v. Scott Labor LLC (N.D.Ill. 2005) 377 F.Supp.2d 647, 649, 652 [similar conclusion as to employer secretly videotaped by disgruntled employee in common, open, and exposed area of workplace]; Melder v. Sears, Roebuck and Co. (La.Ct.App. 1999) 731 So.2d 991, 994, 1001 [similar conclusion as to department store employee captured on video cameras used to monitor customers as they shopped].) At the other end of the spectrum are areas in the workplace subject to restricted access and limited view, and reserved exclusively for performing bodily functions or other inherently personal acts. (See Trujillo v. City of Ontario (C.D.Cal. 2006) 428 F.Supp.2d 1094, 1099-1100, 1103, 1119-1122 (Trujillo) [recognizing that employees have common law and constitutional privacy interests while using locker room in basement of police station, and can reasonably expect that employer will not intrude by secretly videotaping them as they undress]; see also Doe by Doe v. B.P.S. Guard Services, Inc. (8th Cir. 1991) 945 F.2d 1422, 1424, 1427 (Doe) [similar conclusion as to models who were secretly viewed and videotaped while changing clothes behind curtained area at fashion show]; Liberti v. Walt Disney World Co. (M.D.Fla. 1995) 912 F.Supp. 1494, 1499, 1506 (Liberti) [similar conclusion as to dancers who were secretly viewed and videotaped while changing clothes and using restroom in dressing room at work].) The present scenario falls between these extremes. (Cf. Sacramento County Deputy Sheriffs' Assn. v. County of Sacramento (1996) 51 Cal.App.4th 1468, 291 1482, 1487 [59 Cal.Rptr.2d 834] [rejecting common law intrusion claim of jail employee secretly videotaped while handling inmate property based on accessibility of his office to others and heightened security concerns inherent in custodial setting]; see also Marrs v. Marriott Corp. (D.Md. 1992) 830 F.Supp. 274, 283 [similar conclusion as to security guard secretly videotaped while breaking into colleague's locked desk in open office used as common area by entire staff].) (6) Plaintiffs plausibly claim that Hillsides provided an enclosed office with a door that could be shut and locked, and window blinds that could be drawn, to allow the occupants to obtain some measure of refuge, to focus on their work, and to escape visual and aural interruptions from other sources, including their employer. Such a protective setting generates legitimate expectations that not all activities performed behind closed doors would be clerical and work related. As suggested by the evidence here, employees who share an office, and who have four walls that shield them from outside view (albeit, with a broken "doggie" flap on the door), may perform grooming or hygiene activities, or conduct personal conversations, during the workday. Privacy is not wholly lacking because the occupants of an office can see one another, or because colleagues, supervisors, visitors, and security and maintenance personnel have varying degrees of access. (See Sanders, supra, 20 Cal.4th 907, 917 ["`visibility to some people does not strip [away] the right to remain secluded from others'"]; id. at pp. 918-919 ["`business office need not be sealed to offer its occupant a reasonable degree of privacy'"].) Regarding another relevant factor in Sanders, supra, 20 Cal.4th 907, 923, the "means of intrusion," employees who retreat into a shared or solo office, and who perform work and personal activities in relative seclusion there, would not reasonably expect to be the subject of televised spying and secret filming by their employer. As noted, in assessing social norms in this regard, we may look at both the "common law" and "statutory enactment." (Hill, supra, 7 Cal.4th 1, 36.) (7) Courts have acknowledged the intrusive effect for tort purposes of hidden cameras and video recorders in settings that otherwise seem private. It has been said that the "unblinking lens" can be more penetrating than the naked eye with respect to "duration, proximity, focus, and vantage point." (Cowles v. State (Alaska 2001) 23 P.3d 1168, 1182 (dis. opn. of Fabe, J.).) Such monitoring and recording denies the actor a key feature of privacythe right to control the dissemination of his image and actions. (See Shulman, supra, 18 Cal.4th 200, 235.) We have made clear that the "`mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.'" (Sanders, supra, 20 Cal.4th 907, 916.) 292 Not surprisingly, we discern a similar legislative policy against covert monitoring and recording that intrudesor threatens to intrudeupon visual privacy. Some statutes criminalize the use of camcorders, motion picture cameras, or photographic cameras to violate reasonable expectations of privacy in specified areas in which persons commonly undress or perform other intimate acts. Liability exists, under certain circumstances, where the lens allows the intruder to "look[ ]" into or "view[ ]" the protected area. (Pen. Code, § 647, subd. (j)(1).)[7] Of course, the intruder also cannot "secretly videotape, film, photograph, or record" anyone in that private place where various conditions exist. (§ 647, subd. (j)(3)(A); see Trujillo, supra, 428 F.Supp.2d 1094, 1119 [statute intended to protect visual privacy of persons in various states of undress].) Other statutes authorize civil damages for certain invasions of privacy that involve either a physical trespass or other offensive conduct for the purpose of capturing a picture of someone engaged in personal or familial activities. The focus of such provisions is on the "intent to capture" a "visual image" (Civ. Code, § 1708.8, subd. (a)), or on the "attempt" to do so (id., subd. (b)).[8] Failure to capture or record the subject image is no defense to a statutory violation in this context. (§ 1708.8, subd. (j); see Richardson-Tunnell v. 293 Schools Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1063 [69 Cal.Rptr.3d 176] [statute protects against aggressive, paparazzi-like behavior of tabloid journalists].) As emphasized by defendants, the evidence shows that Hitchcock never viewed or recorded plaintiffs inside their office by means of the equipment he installed both there and in the storage room. He also did not intend or attempt to do so, and took steps to avoid capturing them on camera and videotape. While such factors bear on the offensiveness of the challenged conduct, as discussed below, we reject the defense suggestion that they preclude us from finding the requisite intrusion in the first place. (See Shulman, supra, 18 Cal.4th 200, 232 [requiring either a physical or sensory penetration into a private place or matter, or the gaining of unwanted access to private information].) In particular, Hitchcock hid the video equipment in plaintiffs' office from view in an apparent attempt to prevent anyone from discovering, avoiding, or dismantling it. He used a camera and motion detector small enough to tuck inside and around decorative items perched on different bookshelves, both high and low. Plaintiffs presumably would have been caught in the camera's sights if they had returned to work after hours, or if Hitchcock had been mistaken about them having left the office when he activated the system. Additionally, except for the one day in which Hitchcock removed the camera from plaintiffs' office, the means to activate the monitoring and recording functions were available around the clock, for three weeks, to anyone who had access to the storage room. Assuming the storage room was locked, as many as eight to 11 employees had keys under plaintiffs' version of the facts (depending upon the total number of program directors at Hillsides). In a related vein, plaintiffs cannot plausibly be found to have received warning that they would be subjected to the risk of such surveillance, or to have agreed to it in advance. We have said that notice of and consent to an impending intrusion can "inhibit reasonable expectations of privacy." (Hill, supra, 7 Cal.4th 1, 36; accord, Sheehan, supra, 45 Cal.4th 992, 1000-1001.) Such factors also can "`"limit [an] intrusion upon personal dignity"'" by providing an opportunity for persons to regulate their conduct while being monitored. (Hill, supra, at p. 36.) Here, however, the evidence shows that no one at Hillsides told plaintiffs that someone had used Lopez's computer to 294 access pornographic Web sites. Nor were they told that Hitchcock planned to install surveillance equipment inside their office to catch the perpetrator on television and videotape. Moreover, nothing in Hillsides's written computer policy mentioned or even alluded to the latter scenario. As noted earlier, the version in effect at the relevant time made clear that any monitoring and recording of employee activity, and any resulting diminution in reasonable privacy expectations, were limited to "use of Company computers" in the form of "e-mail" messages, electronic "files," and "web site" data. Foster performed this administrative function when he used the network server to produce the list of pornographic Web sites accessed in both the computer laboratory and Lopez's office, and showed such computer-generated data to Hitchcock. There is no evidence that employees like plaintiffs had any indication that Hillsides would take the next drastic step and use cameras and recording devices to view and videotape employees sitting at their desks and computer workstations, or moving around their offices within camera range. In sum, the undisputed evidence seems clearly to support the first of two basic elements we have identified as necessary to establish a violation of privacy as alleged in plaintiffs' complaint. Defendants secretly installed a hidden video camera that was both operable and operating (electricity-wise), and that could be made to monitor and record activities inside plaintiffs' office, at will, by anyone who plugged in the receptors, and who had access to the remote location in which both the receptors and recording equipment were located. The workplace policy, that by means within the computer system itself, plaintiffs would be monitored about the pattern and use of Web sites visited, to prevent abuse of Hillsides's computer system, is distinguishable from and does not necessarily create a social norm that in order to advance that same interest, a camera would be placed inside their office, and would be aimed toward a computer workstation to capture all human activity occurring there. Plaintiffs had no reasonable expectation that their employer would intrude so tangibly into their semiprivate office.[9] 295 D. Offensiveness/Seriousness of the Privacy Intrusion Plaintiffs must show more than an intrusion upon reasonable privacy expectations. Actionable invasions of privacy also must be "highly offensive" to a reasonable person (Shulman, supra, 18 Cal.4th 200, 231; see id. at p. 236), and "sufficiently serious" and unwarranted as to constitute an "egregious breach of the social norms" (Hill, supra, 7 Cal.4th 1, 37). Defendants claim that, in finding a triable issue in this regard, the Court of Appeal focused too narrowly on the mere presence of a functioning camera in plaintiffs' office during the workday, and on the inchoate risk that someone would sneak into the locked storage room and activate the monitoring and recording devices. Defendants imply that under a broader view of the relevant circumstances, no reasonable jury could find in plaintiffs' favor and impose liability on this evidentiary record. We agree. (8) For guidance, we note that this court has previously characterized the "offensiveness" element as an indispensable part of the privacy analysis. It reflects the reality that "[n]o community could function if every intrusion into the realm of private action" gave rise to a viable claim. (Hill, supra, 7 Cal.4th 1, 37.) Hence, no cause of action will lie for accidental, misguided, or excusable acts of overstepping upon legitimate privacy rights. (Miller, supra, 187 Cal.App.3d 1463, 1483-1484.) In light of such pragmatic policy concerns (see Taus, supra, 40 Cal.4th 683, 737), a court determining whether this requirement has been met as a matter of law examines all of the surrounding circumstances, including the "degree and setting" of the intrusion and "the intruder's `motives and objectives.'" (Shulman, supra, 18 Cal.3d 200, 236, quoting and following Miller, supra, 187 Cal.App.3d at pp. 1483-1484.) Courts also may be asked to decide whether the plaintiff, in attempting to defeat a claim of competing interests, has shown that the defendant could have minimized the privacy intrusion through other reasonably available, less intrusive means. (Hill, supra, 7 Cal.4th at p. 38.) 296 1. Degree and Setting of Intrusion. This set of factors logically encompasses the place, time, and scope of defendants' video surveillance efforts. In this case, they weigh heavily against a finding that the intrusion upon plaintiffs' privacy interests was highly offensive or sufficiently serious to warrant liability. In context, defendants took a measured approach in choosing the location to videotape the person who was misusing the computer system. Evidently, plaintiffs' office was not the preferred spot. Hitchcock initially tried to capture the culprit in the computer laboratory. Based on the consistently high level of human traffic he described there, the laboratory apparently was far more accessible and less secluded than plaintiffs' office. The surveillance equipment was moved to the latter location only after Hitchcock determined it was too difficult to pinpoint who was using computers inappropriately in the open, more public laboratory setting. Defendants' surveillance efforts also were largely confined to the area in which the unauthorized computer activity had occurred. Once the camera was placed in plaintiffs' office, it was aimed towards Lopez's desk and computer workstation. There is no evidence that Hitchcock intended or attempted to include Hernandez's desk in camera range. We can reasonably infer he avoided doing so, because no improper computer use had been detected there. Likewise, access to the storage room and knowledge of the surveillance equipment inside were limited. A total of two people other than Hitchcock and Foster (Susanne Crummey and Stacey Brake) knew that the television/recorder was set up to monitor plaintiffs' office. Only one of them (Crummey) had a key to the lock on the storage room door. The spot was relatively remote and secure. Timing considerations favor defendants as well. After being moved to plaintiffs' office and the storage room, the surveillance equipment was operational during a fairly limited window of time. Hitchcock decided to remove the equipment (and plaintiffs coincidentally discovered it) a mere 21 days later, during which time no one had accessed Lopez's computer for pornographic purposes. We can infer from the undisputed evidence that Hitchcock kept abreast of his own monitoring activities, and did not expose plaintiffs to the risk of covert visual monitoring or video recording any longer than was necessary to determine that his plan would not work, and that the culprit probably had been scared away. Defendants' actual surveillance activities also were quite limited in scope. On the one hand, the camera and motion detector in plaintiffs' office were 297 always plugged into the electrical circuit and capable of operating the entire time they were in place. On the other hand, Hitchcock took the critical step of connecting the wireless receptors and activating the system only three times. At most, he was responsible for monitoring and recording inside of plaintiffs' office an average of only once a week for three weeks. Such measures were hardly excessive or egregious. (Cf. Wolfson v. Lewis (E.D.Pa. 1996) 924 F.Supp. 1413, 1420 [electronic surveillance that is persistent and pervasive may constitute a tortious intrusion on privacy even when conducted in a public or semipublic place].) Moreover, on each of these three occasions, Hitchcock connected the wireless devices and allowed the system to remotely monitor and record events inside plaintiffs' office only after their shifts ended, and after they normally left Hillsides's property. He never activated the system during regular business hours when plaintiffs were scheduled to work. The evidence shows they were not secretly viewed or taped while engaged in personal or clerical activities. On the latter point, we agree with defendants that their successful effort to avoid capturing plaintiffs on camera is inconsistent with an egregious breach of social norms. For example, in a case closely on point, one court has held that even where an employer placed a camera in an area reserved for the most personal functions at work, such that heightened privacy expectations applied, the lack of any viewing or recording defeated the employee's invasion-of-privacy claim. (E.g., Meche v. Wal-Mart Stores, Inc. (La.Ct.App. 1997) 692 So.2d 544, 547 [camera concealed in ceiling of restroom to prevent theft].) This circumstance also distinguishes plaintiffs' case from those we have discussed above, in which covert visual monitoring and video recording in an employment setting supported a viable intrusion claim. (E.g., Doe, supra, 945 F.2d 1422, 1424, 1427 [models' changing area]; Trujillo, supra, 428 F.Supp.2d 1094, 1100, 1119-1122 [police locker room]; Liberti, supra, 912 F.Supp. 1494, 1499 [dancers' dressing room].) 2. Defendants' Motives, Justifications, and Related Issues. This case does not involve surveillance measures conducted for socially repugnant or unprotected reasons. (See, e.g., Shulman, supra, 18 Cal.4th 200, 237 [harassment, blackmail, or prurient curiosity].) Nor, contrary to what plaintiffs imply, does the record reveal the absence of any reasonable justification or beneficial motivation. The undisputed evidence is that defendants installed video surveillance equipment in plaintiffs' office, and activated it three times after they left work, in order to confirm a strong suspicion triggered by publicized network tracking measuresthat an unknown staff person was engaged in unauthorized and inappropriate computer use at night. 298 Given the apparent risks under existing law of doing nothing to avert the problem, and the limited range of available solutions, defendants' conduct was not highly offensive for purposes of establishing a tortious intrusion into private matters. Our reasoning is as follows. For legitimate business reasons, employers commonly link their network servers to the Internet, and provide employees with computers that have direct access to the network and the Internet. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 805-806 [52 Cal.Rptr.3d 376] (Delfino) [noting trend over previous decade].) As this phenomenon has grown, employers have adopted formal policies regulating the scope of appropriate computer and Internet use. Such policies contemplate reasonable monitoring efforts by employers, and authorize employee discipline for noncompliance. (E.g., Delfino, supra, at p. 800, fn. 13 [authorizing discharge for transmitting any threatening, sexually explicit, or harassing item on company computers]; TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 446 [117 Cal.Rptr.2d 155] (TBG) [similar policy as to derogatory, defamatory, or obscene material, coupled with notice that company would monitor employee computer use]; TBG, at p. 451 [discussing American Management Association report stating that most large firms regulate and monitor employee Internet use]; cf. Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2007) ¶ 5:782.5 et seq. [exploring limits on computer monitoring in workplace].) Despite efforts to control the problem, the potential for abuse of computer systems and Internet access in the workplace is wide-ranging. (See, e.g., Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1347 [1 Cal.Rptr.3d 32, 71 P.3d 296] [holding that employee did not commit tort of trespass to chattels by sending mass e-mails on employer's electronic system, but otherwise declining to exempt Internet messages from general rules of tort liability]; TBG, supra, 96 Cal.App.4th 443, 446-447 [employee terminated after repeatedly accessing pornographic Web sites on computer at work].) The consequences to employers may be serious. (E.g., Delfino, supra, 145 Cal.App.4th 790, 795-796, 800 [third parties sued employer on various counts after receiving vile threats that employee sent over Internet from work computer]; Monge v. Superior Court (1986) 176 Cal.App.3d 503, 506-507, 509 [222 Cal.Rptr. 64] [employee stated claims for discrimination, harassment, and punitive damages against employer who failed to investigate her complaints about receiving sexually offensive message from supervisors on her work computer].) Here, Hitchcock learned that the computer in plaintiffs' office was being used to access the Internet late at night, long after their shifts ended, by someone not authorized to use that equipment or office. Data recorded and stored inside the computer system itself convinced Hitchcock and the computer specialist, Foster, that the unauthorized user was viewing sexually 299 explicit Web sites. Given the hour at which this unauthorized Internet activity occurred, Hitchcock strongly suspected that the responsible party was a program director or other staff person with keys and access to the administration building, which was otherwise locked at that hour. Such use of Hillsides's computer equipment by an employee violated written workplace policies circulated both before and after the challenged surveillance activities occurred. As those policies warned, and case law confirms, the offending conduct posed a risk that the perpetrator might expose Hillsides to legal liability from various quarters. At the very least, parties on both sides confirmed that accessing pornography on company computers was inconsistent with Hillsides's goal to provide a wholesome environment for the abused children in its care, and to avoid any exposure that might aggravate their vulnerable state. We also note that Hitchcock's repeated assurances that he installed the surveillance equipment solely to serve the foregoing purposes and not to invade plaintiffs' privacy are corroborated by his actions afterwards. When confronted by plaintiffs about the camera in their office, he explained its presence, and tried to assuage their concerns about being suspected of wrongdoing and secretly videotaped. To this end, he showed them the actual surveillance tape on demand and without delay. Against this backdrop, a reasonable jury could find it difficult to conclude that defendants' conduct was utterly unjustified and highly offensive. Plaintiffs argue that even assuming defendants acted to prevent a rogue employee from accessing pornography on Hillsides's computers, and to minimize a genuine risk of liability and harm, no claim or defense of justification has been established as a matter of law. Plaintiffs insist triable issues exist as to whether defendants could have employed means less offensive than installing the camera in their office and connecting it to the monitor and recorder nearby. Examples include better enforcement of Hillsides's log-off/password-protection policy, installation of software filtering programs,[10] closer nighttime monitoring of the camera outside the administration building, increased security patrols at night, and receipt of plaintiffs' informed consent to video surveillance. Contrary to what plaintiffs imply, it appears defendants are not required to prove that there were no less intrusive means of accomplishing the legitimate 300 objectives we have identified above in order to defeat the instant privacy claim. In the past, we have specifically declined to "impos[e] on a private organization, acting in a situation involving decreased expectations of privacy, the burden of justifying its conduct as the `least offensive alternative' possible under the circumstances." (Hill, supra, 7 Cal.4th 1, 50 [invoking language and history of state constitutional privacy provision and relevant case authority]; accord, Sheehan, supra, 45 Cal.4th 992, 1002.) The argument lacks merit in any event. First, the alternatives that plaintiffs propose would not necessarily have achieved at least one of defendants' aimsdetermining whether a program director was accessing pornographic Web sites in plaintiffs' office. Rather, it is the same suspect group of program directors on whom plaintiffs would have had defendants more heavily rely to monitor exterior cameras and perform office patrols. Obtaining plaintiffs' consent also might have risked disclosing the surveillance plan to other employees, including the program directors. With respect to stricter regulation of employee computer use (software filters and log-off enforcement), such steps might have stopped the improper use of Lopez's computer. However, they would not have helped defendants identify the employee who performed such activity and who posed a risk of liability and harm in the workplace. (See Hill, supra, 7 Cal.4th 1, 50 [rejecting proposed alternatives as "different in kind and character" from challenged acts].) Second, for reasons suggested above, this is not a case in which "sensitive information [was] gathered and feasible safeguards [were] slipshod or nonexistent." (Hill, supra, 7 Cal.4th 1, 38.) Rather, privacy concerns are alleviated because the intrusion was "limited" and no information about plaintiffs was accessed, gathered, or disclosed. (Ibid.) As we have seen, defendants did not suspect plaintiffs of using their computers improperly, and sought to ensure that they were not present when any monitoring or recording in their office occurred. The video equipment was rarely activated and then only at night, when plaintiffs were gone. There was no covert surveillance of them behind closed doors. CONCLUSION We appreciate plaintiffs' dismay over the discovery of video equipment small, blinking, and hot to the touchthat their employer had hidden among their personal effects in an office that was reasonably secluded from public access and view. Nothing we say here is meant to encourage such surveillance measures, particularly in the absence of adequate notice to persons within camera range that their actions may be viewed and taped. (9) Nevertheless, considering all the relevant circumstances, plaintiffs have not established, and cannot reasonably expect to establish, that the 301 particular conduct of defendants that is challenged in this case was highly offensive and constituted an egregious violation of prevailing social norms. We reach this conclusion from the standpoint of a reasonable person based on defendants' vigorous efforts to avoid intruding on plaintiffs' visual privacy altogether. Activation of the surveillance system was narrowly tailored in place, time, and scope, and was prompted by legitimate business concerns. Plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape. We therefore reverse the judgment of the Court of Appeal insofar as it reversed and vacated the trial court's order granting defendants' motion for summary judgment on all counts alleged in the complaint. George, C. J., Kennard, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred. NOTES [1] On November 5, 2002, shortly after the events herein occurred, Hitchcock circulated a one-page memorandum reminding staff that they could not use Hillsides's computers or Internet services to view or access any sexually explicit or offensive material or Web site. The memorandum further stated that the network could be made to monitor Internet use, and that unspecified "surveillance devices" could be placed wherever inappropriate computer use occurred. Attached to the memorandum was a two-page document dated November 4, 2002, entitled "Communications Acceptable Use Policy." Like its predecessor, the new policy sought to address "possible legal issues" by providing that data stored on Hillsides's computers remained company property, that password protections were required, that Hillsides could monitor the computer network at any time, and that use of its equipment to view or access sexually explicit or offensive materials or Web sites was prohibited. [2] Plaintiffs claim defendants never established that an unidentified employee or other intruder accessed pornographic Web sites from Lopez's computer, thereby risking harm to Hillsides's residents or operations. Plaintiffs assume that declarations filed by Hitchcock and Foster containing such factual assertions are incompetent and inadmissible on numerous grounds, and that no other similar evidence exists. We reject the argument and its premise. Plaintiffs do not make clear through an analysis of the pleadings below, or specific record citations, whether the present evidentiary objections are the same as those made and overruled in the trial court. In the summary judgment context, we have declined similar requests to disregard evidence based on objections "in this court lack[ing] adequate argument and support." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277, fn. 3 [42 Cal.Rptr.3d 2, 132 P.3d 211].) In any event, the substance of the information contained in the challenged declarations appears in Hitchcock's deposition. As best we can determine from the record, plaintiffs never contested such deposition testimony in the trial court. Their failure to do so prevents them from complaining about the admission of the evidence in deposition form. (E.g., Miller v. Department of Corrections (2005) 36 Cal.4th 446, 452, fn. 3 [30 Cal.Rptr.3d 797, 115 P.3d 77]; see Code Civ. Proc., § 437c, subds. (b)(5), (d) [evidentiary objections not made at summary judgment hearing are waived].) [3] Plaintiffs insist here, as on appeal, that triable issues exist as to whether they were viewed or recorded because (1) the video surveillance equipment was "always on," (2) the television monitor in the storage room displayed a "continuous" live image of the interior of plaintiffs' office, and (3) "recording was possible" even when nothing triggered the motion detector. However, Hitchcock's deposition defeats these assertions, and plaintiffs presented no contrary evidence below. As we have seen, Hitchcock testified that no image was displayed or recorded on the television unless the remote controls in the storage room were connected, and that he connected them and activated the surveillance system only three times, at night, when plaintiffs were not at work. He also stated that no recording occurred unless movement was first sensed by the motion detector in its activated state, and that neither plaintiffs nor any third person appeared on the videotape. Indeed, the Court of Appeal reached a similar conclusion concerning the undisputed nature of Hitchcock's testimony about the "recording and/or viewing" of plaintiffs. Plaintiffs did not seek rehearing or modification on this or any other factual point, and are barred from complaining about it now. (See Cal. Rules of Court, rule 8.500(c)(2) [Court of Appeal's statement of facts is accepted on review absent rehearing petition challenging alleged misstatements].) [4] This court has reviewed a copy of the videotape provided by plaintiffs' counsel, which conforms to the parties' descriptions in the trial court. As to the camera, Lopez remarked in her deposition that, based on her own Internet research, Hitchcock's model had an audio recording feature. She did not otherwise describe the camera or explain her conclusion. [5] We note that the Employers Group and the California Employment Law Council have jointly filed a brief as amici curiae in support of defendant Hillsides. [6] Article I, section 1 of the California Constitution states: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." [7] Penal Code section 647 imposes misdemeanor liability for disorderly conduct. Its diverse provisions include subdivision (j)(1), which applies to "[a]ny person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, or camcorder, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside." Subdivision (j)(3)(A) of Penal Code section 647 applies to "[a]ny person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person." [8] Civil Code section 1708.8 authorizes compensatory and punitive damages and injunctive relief for acts constituting a physical or constructive invasion of privacy. Subdivision (a) states: "A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person." Subdivision (b) of Civil Code section 1708.8 states: "A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used." Subdivision (j) of Civil Code section 1708.8 states: "It is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold." [9] In our analysis, we have sidestepped cases involving claims that searches by governmental agents and employers for evidence of misconduct or criminality in the workplace violate an employee's reasonable expectations of privacy under the Fourth Amendment to the federal Constitution. (See O'Connor v. Ortega (1987) 480 U.S. 709, 714-719 [94 L.Ed.2d 714, 107 S.Ct. 1492] (plur. opn. of O'Connor, J.); id. at pp. 730-731 (conc. opn. of Scalia, J.); id. at p. 732 (dis. opn. of Blackmun, J.); Mancusi v. DeForte (1968) 392 U.S. 364, 369 [20 L.Ed.2d 1154, 88 S.Ct. 2120].) Recognizing the special concerns involved in defining a private citizen's protection against governmental intrusion, and the government's unique interest in investigating and suppressing criminal activity, we have said that employee expectations of privacy against government searches are "not directly applicable" in the privacy tort context. (Sanders, supra, 20 Cal.4th 907, 919, fn. 3.) Here, as elsewhere, we do not suggest that the same standards necessarily apply in both settings. (Ibid.) We note, however, that where a governmental search intrudes upon an enclosed office or other protected workplace, and where covert video surveillance is involved, limited but reasonable expectations of privacy may exist under the Fourth Amendment. (Compare U.S. v. Taketa (9th Cir. 1991) 923 F.2d 665, 674-678 [disapproving admission of warrantless secret videotape made in shared office of airport] and State v. Bonnell (1993) 75 Haw. 124 [856 P.2d 1265, 1275-1277] [upholding suppression of warrantless secret videotape made in employee breakroom of post office] with Vega-Rodriguez v. Puerto Rico Telephone Co. (1st Cir. 1997) 110 F.3d 174, 178-182 [allowing visible videotaping in open and undivided communications center of phone company] and Nelson v. Salem State College (2006) 446 Mass. 525 [845 N.E.2d 338, 346-347] [allowing secret videotaping in open area of business development office accessible to general public].) [10] Plaintiffs fault defendants for not using "Net Nanny," a software program that apparently limits access to the Internet. Hitchcock testified that Hillsides installed "Net Nanny" after the relevant events occurred, and that it was being used in June 2004, when Hitchcock was deposed. However, it is not clear from his testimony, or from plaintiffs' briefs, when such software first became available or how it worked. Hitchcock explained that, before Hillsides installed "Net Nanny," no child could operate a computer without direct adult supervision.
FILED NOT FOR PUBLICATION DEC 08 2009 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT EDGAR DANIEL ROSALES, No. 08-71285 Petitioner, Agency No. A072-518-615 v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 17, 2009 ** Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges. Edgar Daniel Rosales, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). IH/Research 8 U.S.C. § 1252. We review de novo, Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126-27 (9th Cir. 2007), and we deny the petition for review. We agree with the BIA’s conclusion that Rosales is removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felon under because his conviction under California Penal Code § 245(a)(1) categorically constitutes a crime of violence and he was sentenced to a term of imprisonment of at least one year for his crime. See United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (per curium) (Cal. Penal Code § 245 contains the requisite mens rea to qualify as a crime of violence under 18 U.S.C. § 16). Rosales’ remaining contentions lack merit. PETITION FOR REVIEW DENIED. IH/Research 2 08-71285
724 N.W.2d 469 (2006) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Halbert CROMPTON, Defendant-Appellant. Docket No. 132054, COA No. 260727. Supreme Court of Michigan. December 13, 2006. On order of the Court, the application for leave to appeal the July 18, 2006 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 11-11495 ELEVENTH CIRCUIT Non-Argument Calendar MARCH 26, 2012 ________________________ JOHN LEY CLERK D.C. Docket No. 1:09-cv-23293-UU MATTIE LOMAX, Plaintiff-Appellant, versus HARVEY RUVIN, SHIRLEY SHABAZZ, et al., llllllllllllllllllllllllllllllllllllllll Defendants-Appellees. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (March 26, 2012) Before MARCUS, MARTIN and ANDERSON, Circuit Judges. PER CURIAM: Liberally construing Mattie Lomax’s pleadings,1 we determine that she has appealed the district court’s post-judgment denial of (1) Lomax’s March 3, 2011, motion to recuse; and (2) Lomax’s March 11, 2011, motion to amend her motion for recusal and for reconsideration of the district court’s dismissal of Lomax’s amended complaint.2 I. MOTIONS TO RECUSE 1 Lorisme v. I.N.S., 129 F.3d 1441, 1444 n.3 (11th Cir. 1997). 2 In order to determine exactly what issues are properly on appeal, we must examine the relevant procedural history. Lomax filed her amended complaint on November 22, 2010. The district court dismissed it on January 11, 2011, because it had “no arguable basis in law or in fact.” Lomax then filed a Motion for Judgment as a Matter of Law on February 3, 2011, and the district court (construing it as a motion for reconsideration) denied it on February 18, 2011. Lomax then filed a Motion to Recuse on March 8, 2011, and it was denied on March 14, 2011. Lomax filed a “Motion Amend to Recuse” on March 11, 2011. This “Motion Amend to Recuse” stated nothing about recusal but included a demand for a jury trial and a citation to an Eleventh Circuit case on the topic of immunity, which bore a relationship to the merits of Lomax’s amended complaint. The district court summarily denied this motion on March 23, 2011. We construe Lomax’s “Motion Amend to Recuse” to include both (1) another motion for recusal and (2) another motion for reconsideration of the district court’s dismissal of Lomax’s amended complaint. Lomax’s notice of appeal stated that she was appealing the district court’s denial of her “Motion Amend to Recuse.” We construe that to also include the denial of her initial Motion to Recuse. Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528-29 (11th Cir. 1987). Therefore, the proper issues on appeal are (1) the district court’s March 14, 2011, denial of Lomax’s initial Motion to Recuse; (2) the district court’s March 23, 2011, denial of Lomax’s motion to amend her motion for recusal; and (3) the district court’s March 23, 2011, denial of Lomax’s motion for another reconsideration of dismissal. See id.; Lorisme, 129 F.3d at 1444 n.3. The district court’s actual dismissal of Lomax’s amended complaint is not properly on appeal since it was not included in Lomax’s notice of appeal. Osterneck, 825 F.2d at 1528-29 (“The general rule in this circuit is that an appellate court has jurisdiction to review only those judgments, orders or portions thereof which are specified in an appellant’s notice of appeal. Although we generally construe a notice of appeal liberally, we will not expand it to include judgments and orders not specified unless the overriding intent to appeal these orders is readily apparent on the face of the notice.”) (emphasis added and citations omitted). 2 We review a district court’s denial of a motion for recusal for abuse of discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999). Under the abuse of discretion standard, we will affirm the refusal to recuse unless we “conclude that the impropriety is clear and one which would be recognized by all objective, reasonable persons.” Id. A federal judge must disqualify herself if her “impartiality might reasonably be questioned,” or where a judge “has a personal bias or prejudice concerning a party,” has participated as counsel in the matter, or has a financial interest in the matter. 28 U.S.C. § 455(a), (b). Under § 455(a), challenges to a judge’s “ordinary efforts at courtroom administration,” including “judicial rulings, routine trial administration efforts, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses,” are not sufficient to require a judge to recuse herself. Liteky v. United States, 510 U.S. 540, 556, 114 S. Ct. 1147, 1157, 1158 (1994). While we liberally construe the pleadings of pro se litigants, Lomax fails to present any argument relevant to the motions for recusal. Because she has presented no argument germane to these issues, Lomax has abandoned her appeal with respect to the denials of recusal. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998). Even if we consider the merits, we find that the district court did 3 not abuse its discretion under 28 U.S.C. § 455(a) or (b). There is no evidence that the district court judge’s impartiality could be questioned, nor that she had any personal bias or financial interest in the case. II. MOTION FOR RECONSIDERATION The denial of a motion for reconsideration is reviewed for abuse of discretion. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842 (11th Cir. 2008). To prevail on a motion for reconsideration, the moving party must present new facts or law of a strongly convincing nature. Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1276 n.2 (11th Cir. 2005). There is no abuse of discretion where the district court denies a motion for reconsideration that merely “raise[s] arguments which could, and should, have been made before the judgment is issued.” Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990). Lomax has not met her burden. First, Lomax has not presented any facts at all in her brief. Second, none of the cases cited in her brief are new or strongly convincing. Accordingly, it was not error for the district court to deny Lomax’s March 11, 2011, motion to the extent that it requested reconsideration of the district court’s dismissal of the amended complaint. Lussier, 904 F.2d at 667. Finding no reversible error, we affirm the district court’s denial of Lomax’s motions to recuse and her motion for reconsideration. 4 AFFIRMED.3 3 Lomax’s motion for leave to file a reply brief out-of-time is GRANTED. Her request for oral argument is DENIED. 5
441 N.W.2d 837 (1989) Gregory Fitzgerald CRAWFORD, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant. No. C8-89-64. Court of Appeals of Minnesota. June 27, 1989. 838 Perry A. Berg, Patton, Hoversten & Berg, P.A., Waseca, for respondent. Hubert H. Humphrey, III, Atty. Gen., Peggy L. Bunch, Spec. Asst. Atty. Gen., St. Paul, for appellant. Considered and decided by FORSBERG, P.J., FOLEY and HUSPENI, JJ., without oral argument. OPINION FOLEY, Judge. Respondent Gregory Fitzgerald Crawford's driver's license was revoked under the implied consent law. He petitioned for judicial review and the trial court rescinded the revocation. The Commissioner of Public Safety appeals. FACTS On October 29, 1988, Officer Penny J. Laughlin noticed a vehicle about three blocks ahead of her that was driven by respondent. It turned into a cul-de-sac in a new addition. Nothing about the manner in which respondent drove attracted her attention. She followed him because there was not much traffic and it was a newer area. There are no houses immediately around the cul-de-sac, and Laughlin described the surrounding area as being an open field. She continued to follow the vehicle to "see what it was up to." She believed there was a possibility the driver saw her and was trying to "ditch" her. When Laughlin turned into the cul-de-sac, she did not initially see the vehicle. She spotlighted the area and then saw that the vehicle was parked. Its lights were not on and there were two people inside. Laughlin pulled in behind or to the side of the vehicle; she did not have her lights on at that time. It did not appear that the occupants needed assistance. Laughlin was asked if respondent would have been free to go if he had left after she approached him; she said she would have stopped him. Laughlin got out of her vehicle and approached the window on the driver's side of the parked vehicle. She spoke with respondent and asked him what he was doing. He said he was looking for a missing person, his cousin. While he was in the driver's seat, she saw he had watery eyes and she could smell a strong odor of alcohol. After Laughlin obtained identification and had the conversation, she brought respondent back to the squad car and noticed other indicia of intoxication. Respondent's 839 driver's license was subsequently revoked pursuant to the implied consent law. The trial court rescinded the revocation because it believed there was no basis for the stop and no indication the persons in the vehicle needed assistance. The Commissioner of Public Safety appeals from the trial court's order. ISSUE Did the officer have reasonable and articulable suspicion of wrongdoing at the time the fourth amendment seizure occurred? ANALYSIS The law makes a distinction between the approach of an already stopped vehicle and the stop of a moving vehicle. It is not a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver seated in an already stopped car. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn.1980). The trial court concluded there was no reason for a stop of the vehicle and the persons in the vehicle did not appear to need assistance. An actual stop may not have been justified under these circumstances. See State v. Johnson, 439 N.W.2d 400 (Minn. Ct.App.1989). However, no such stop occurred here. Further, the officer's testimony that she would have stopped respondent if he had driven off does not change the result. Respondent did not drive off and a temporary seizure was unnecessary. Vohnoutka, 292 N.W.2d at 757. Finally, the officer did not at this point engage in the type of behavior that would convert the event into a fourth amendment seizure. Cf. State v. Sanger, 420 N.W.2d 241, 242-43 (Minn.Ct.App.1988). The officer talked to respondent, asked him to identify himself, and then asked him to leave his vehicle and enter her squad car. Paulson v. Commissioner of Public Safety, 384 N.W.2d 244, 246 (Minn. Ct.App.1986). The odor of alcohol and watery and glassy eyes formed a sufficient basis for any fourth amendment seizure which occurred. Kotewa v. Commissioner of Public Safety, 409 N.W.2d 41, 43 (Minn. Ct.App.1987). DECISION The order of the trial court rescinding the revocation is reversed. REVERSED.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-6281 TION BERNARD TERRELL, Plaintiff - Appellant, versus K. J. BASSETT, Warden in his/her personal and professional capacities; SERGEANT BARNETTE, in his/her personal and professional capacities; SERGEANT DAVIS, in his/her personal and professional capacities; DAVID ROBINSON, Warden, in his/her personal and professional capacities; LIEUTENANT BANKS in his/her personal and professional capacities; MAJOR DILLARD, in his/her personal and professional capacities; ASST WARDEN VAUGHN, in his/her personal and professional capacities; DOC WATSON, in his/her personal and professional capacities; LIEUTENANT COMBS, in his/her personal and professional capacities; MAJOR PAYNE, in his/her personal and professional capacities; GENE SHINAULT, Assistant Warden, in his/her personal and professional capacities; MS. BARBETTO, in his/her personal and professional capacities; CAPTAIN JENKINS, in his/her personal and professional capacities, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (CA-05-2-2) Submitted: May 19, 2005 Decided: May 26, 2005 Before LUTTIG, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Tion Bernard Terrell, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). - 2 - PER CURIAM: Tion Bernard Terrell appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2000) complaint pursuant to 28 U.S.C. § 1915A (2000) for failure to state a claim on which relief could be granted. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Terrell v. Bassett, No. CA-05-2-2 (E.D. Va. filed Jan. 21, 2005 & entered Jan. 24, 2005). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 3 -
i i i i i i MEMORANDUM OPINION Nos. 04-08-00847-CR & 04-08-00848-CR Felix HERNANDEZ, Appellant v. The STATE of Texas, Appellee From the 290th Judicial District Court, Bexar County, Texas Trial Court Nos. 2007CR9885 & 2007CR5616B Honorable Sharon MacRae, Judge Presiding PER CURIAM Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice Delivered and Filed: February 11, 2009 DISMISSED The trial court’s certification in each of these appeals states that the case is a “plea-bargain case, and the defendant has NO right of appeal.” Rule 25.2(d) of the Texas Rules of Appellate Procedure provides, “[t]he appeal must be dismissed if a certification that shows the defendant has a right of appeal has not been made part of the record under these rules.” TEX . R. APP . P. 25.2(d). 04-08-00847-CR & 04-08-00848-CR Appellant’s counsel has filed written notice with this court that counsel has reviewed the record and “can find no right of appeal for Appellant.” We construe this notice as an indication that appellant will not seek to file an amended trial court certification showing that he has the right of appeal. See TEX . R. APP . P. 25.2(d); 37.1; see also Daniels v. State, 110 S.W.3d 174, 177 (Tex. App.—San Antonio 2003, no pet.). In light of the record presented, we agree with appellant’s counsel that Rule 25.2(d) requires this court to dismiss these appeals. Accordingly, these appeals are dismissed. PER CURIAM DO NOT PUBLISH -2-
919 N.E.2d 546 (2009) IDDINGS v. STATE. Supreme Court of Indiana. July 16, 2009. Transfer denied. All Justices concur.
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-564V UNPUBLISHED LISA WOODEN-MOORE, Chief Special Master Corcoran Petitioner, Filed: June 16, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner. Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On April 16, 2019, Lisa Wooden-Moore filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on November 13, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 10, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On June 11, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $76,700.00. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $76,700.00 (representing compensation in the amount of $75,000.00 for pain and suffering and $1,700.00 for past out-of-pocket medical expenses) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ************************************* LISA WOODEN-MOORE, * * Petitioner, * No. 19-564V * Chief Special Master Corcoran v. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * ************************************* RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On June 3, 2020, respondent filed a Rule 4(c) Report, conceding that petitioner’s claim meets the Table criteria for a SIRVA injury. On June 10, 2020, the Court issued a Ruling on Entitlement finding petitioner entitled to compensation under the Vaccine Act. I. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded the following, and requests that the Chief Special Master’s decision and the Court’s judgment award: 1. A lump sum payment of $75,000.00, which represents compensation for pain and suffering, see 42 U.S.C. § 300aa-15(a)(4); and 2. A payment of $1,700.00, which represents compensation for past out-of-pocket medical expenses, see 42 U.S.C. § 300aa-15(a)(1). These amounts represent all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).1 Petitioner agrees. 1 Should petitioner die prior to the entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future pain and suffering. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that petitioner be awarded a lump sum payment of $76,700.00, in the form of a check payable to petitioner. Petitioner agrees. Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ DEBRA A. FILTEAU BEGLEY DEBRA A. FILTEAU BEGLEY Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-4181 Dated: June 11, 2020 2
**************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. **************************************************** IN RE EGYPT E. ET AL.* (SC 19643) (SC 19644) Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. Argued May 3—officially released July 21, 2016** Dana M. Hrelic, with whom was Brendon P. Lev- esque, for the appellant in Docket No. SC 19643 (respon- dent father). Michael D. Day, for the appellant in Docket No. SC 19644 (respondent mother). Michael Besso, with whom, on the brief, were George Jepsen, attorney general, Benjamin Zivyon and Tammy Nguyen-O’Dowd, assistant attorneys general, for the appellee in both cases (petitioner). James W. Lux, for the minor children in both cases. Opinion EVELEIGH, J. The respondent father, Morsy E., and the respondent mother, Natasha E., filed separate appeals from the judgments of the trial court terminat- ing their parental rights as to their minor children, Egypt E. and Mariam E. On appeal, the respondents claim that the trial court improperly terminated their parental rights to their minor children1 pursuant to General Stat- utes (Rev. to 2013) § 17a-112 (j).2 As a threshold matter, the petitioner, the Commissioner of Children and Fami- lies,3 asserts4 that this court lacks subject matter juris- diction to hear the respondents’ appeals because the respondents did not appeal from the judgments of the trial court terminating their rights as to their minor children on the ground that reunification efforts were not required under General Statutes (Rev. to 2013) §§ 17a-112 (j) and 17a-111b (b).5 After a thorough review of the record, we conclude that, due to a clerical error at the trial court, the record is not sufficiently clear to determine whether the respondents were properly notified of the basis of the trial court’s judgments such that they could properly appeal from its determination that the petitioner was not required to make reunifica- tion efforts pursuant to §§ 17a-112 (j) and 17a-111b (b). Accordingly, because the clerical error at the trial court implicates both the integrity of the trial court’s record keeping and the due process rights of the respondents to appeal from the judgments of the trial court terminating their parental rights, we must remand the matter for a new trial. The following facts, as found by the trial court, and procedural history are relevant to the disposition of this appeal. On September 1, 2013, the respondents brought Mariam to the Connecticut Children’s Medical Center (hospital) for treatment of a right shoulder injury. Mariam was seven weeks old at that time. An examination of Mariam revealed multiple injuries to her shoulders, legs, stomach, and nose, including six bone fractures. The respondents did not provide an explana- tion for these injuries. Suspecting abuse, the physician assistant who examined Mariam notified the petitioner. On the same day, while Mariam was still in the hospital, the petitioner took Mariam and Egypt into custody pur- suant to an emergency ninety-six hour administrative hold. See General Statutes (Rev. to 2013) § 17a-101g. On September 5, 2013, the petitioner filed neglect petitions alleging that the minor children were being permitted to live under conditions, circumstances, or associations injurious to their well-being. On October 4, 2013, the petitioner filed petitions to terminate the respondents’ parental rights to their minor children on the basis of certain alleged acts of parental commission or omission denying the minor children care, guidance, or control necessary for their well-being. See General Statutes (Rev. to 2013) § 17a-112 (j) (3) (C). The respon- dents denied these allegations. The trial court subse- quently consolidated the neglect and termination petitions for the purpose of trial. On June 5, 2014, approximately six months before the trial commenced, the petitioner filed a ‘‘motion for finding of no reunification efforts’’ pursuant to § 17a- 111b. Specifically, the petitioner sought a finding, pursu- ant to § 17a-111b (b) (1) (B), that no reunification efforts were required on the basis of the severe physical abuse of Mariam. Four days later, the petitioner filed a motion to review the permanency plans for the minor children. The trial court reserved judgment on these motions until after trial. On June 1, 2015, after a nine day trial, the trial court rendered judgments granting the neglect and termina- tion petitions in accordance with a written memoran- dum of decision. With respect to the neglect petition on behalf of Mariam, the court made findings, principally based on the unexplained cause of Mariam’s injuries, that Mariam was abused in that she sustained physical injuries by ‘‘nonaccidental means,’’ was ‘‘denied proper care and attention, physically, educationally, emotion- ally or morally,’’ and had been ‘‘permitted to live under conditions, circumstances or associations injurious to her well-being.’’ With respect to Egypt, the court found that she was neglected under the doctrine of predictive neglect on the ground that she lived in the same home where Mariam had sustained her injuries.6 With respect to the adjudication phase of the termina- tion proceedings, the trial court determined that the petitioner had proven, by clear and convincing evi- dence, all of the elements necessary to terminate the respondents’ parental rights as to the minor children. First, the trial court found by clear and convincing evi- dence that the petitioner had made reasonable efforts at reunification pursuant to § 17a-112 (j) (1), and that the respondents were unable or unwilling to benefit from such efforts. Additionally, the trial court found that both respondents had committed an act of commis- sion or omission that denied the minor children the care necessary for their well-being.7 See General Stat- utes (Rev. to 2013) § 17a-112 (j) (3) (C). Regarding the dispositional phase, the trial court concluded that there was clear and convincing evidence that it was in the minor children’s best interests to terminate the respon- dents’ parental rights. See General Statutes (Rev. to 2013) § 17a-112 (j) (2). Finally, the trial court found that ‘‘further efforts at reunification are not appropriate for [the respondents] with regard to [the minor children].’’ The respondents timely appealed.8 On the same day as it issued the memorandum of decision terminating the parental rights of the respon- dents, the trial court also granted the motion to review the permanency plans. In its order, the trial court adopted the factual findings and case history from its memorandum of decision. Additionally, among other findings, the trial court found ‘‘by clear and convincing evidence that further efforts to reunify [the respon- dents] with either child are not appropriate.’’ The next day, the trial court executed orders on a standard Judi- cial Branch form entitled ‘‘Co-termination of Parental Rights and Appointment of Statutory Parent/Guardian’’ with respect to each of the minor children. In these orders, the trial court noted, by checking the appro- priate boxes, that it found by clear and convincing evi- dence that the petitioner made reasonable efforts to reunify the respondents with their minor children and that the respondents were unable or unwilling to benefit from reunification efforts. The trial court did not check the box on either order labeled, ‘‘[r]easonable efforts to reunify are not required . . . because the court determined at a hearing in accordance with [§] 17a- 111b . . . or determined at a trial on the petition that such efforts are not required.’’ On that same day, the trial court granted the petition- er’s ‘‘motion for finding of no reunification efforts’’ not- ing as follows: ‘‘See [c]ourt’s written order [on the] motion to review permanency plan dated [June 1, 2015].’’ There is no indication on the order that it was ever sent to the parties. This order was not, however, included in the trial court file, which was certified by the trial court clerk on June 26, 2015, and delivered to the appellate clerk’s office on July 2, 2015. Instead, the certified copy of the trial court file includes an unexecuted order sheet attached to the petitioner’s ‘‘motion for finding of no reunification efforts.’’ Further- more, a printed copy of the electronic docket for these matters dated June 26, 2015, shows that neither the petitioner’s motion nor the court’s order had been entered by the trial court clerk. Indeed, at oral argument before this court, there was some confusion as to whether the trial court had granted the petitioner’s ‘‘motion for finding of no reuni- fication efforts.’’ Counsel for both of the respondents indicated that this motion was not granted. Counsel for the petitioner indicated that there was some ambiguity as to whether the trial court had granted the motion because ‘‘the record does not reflect any endorsement of that motion one way or another,’’ but the trial court’s statements in its memorandum of decision ‘‘in effect’’ granted the motion. After oral arguments were heard on May 3, 2016, this court ordered the trial court as follows: ‘‘Pursuant to [Practice Book] § 60-5, the trial court is hereby ordered to complete the court record by responding to the fol- lowing question: ‘In its judgments granting the termina- tion of parental rights petition[s] [as to the] respondents, did the trial court pursuant to either [§] 17a-111b or [§] 17a-112 (j), hold that reunification efforts were not required for [the] respondents.’ ’’ The trial court responded to this court’s order for articulation as follows: ‘‘In its [June 1, 2015] decision, the trial court found that the credible evidence put forth in this matter clearly and convincingly established both that [the petitioner] made reasonable reunification efforts for the [respondents], and that neither [of the respondents] was either able or willing to benefit from § 17a-112 (j) (1) efforts. ‘‘In its discussion of reunification efforts pursuant to federal law, the trial court also found, by clear and convincing evidence, that further efforts at reunifica- tion were not appropriate for either [of the respondents] as to either child. ‘‘On the same date, the trial court granted [the peti- tioner’s] motion for finding of no reunification efforts, specifically making reference to its findings in the [ter- mination of parental rights] decision of the same date. ‘‘The trial court did not make a specific finding that reunification efforts were not required for [the respondents].’’ We begin by setting forth our standard of review. ‘‘Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction . . . . Because courts are established to resolve actual contro- versies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. . . . Justiciability requires (1) that there be an actual contro- versy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . A case is considered moot if [the trial] court cannot grant the appellant any practical relief through its disposition of the merits . . . . Because a question of mootness implicates the subject matter jurisdiction of this court, it raises a ques- tion of law over which we exercise plenary review.’’ (Citations omitted; internal quotation marks omitted.) JP Morgan Chase Bank, N.A. v. Mendez, 320 Conn. 1, 6–7, 127 A.3d 994 (2015); see also In re Jorden R., 293 Conn. 539, 555–56, 979 A.2d 469 (2009) (discussing mootness in context of failure to challenge basis upon which reasonable efforts finding may rest). In the present case, it is undisputed that the respon- dents timely appealed from the judgments of the trial court claiming, inter alia, that the trial court improperly found that the petitioner made reasonable efforts to reunify the respondents with the minor children and that the respondents were unable or unwilling to benefit from reunification efforts. See footnote 1 of this opin- ion. The petitioner asserts that the respondents’ claims are moot because the trial court also found pursuant to §§ 17a-112 (j) (1) and 17a-111b that reunification efforts were not required. The petitioner claims that, because a finding that reunification efforts are not required under §§ 17a-112 (j) (1) and 17a-111b is an independent basis for terminating the parental rights of the respondents and the respondents have not appealed from that finding in the present case, a determination of the respondents’ claims cannot result in practical relief to the respondents. We agree with the petitioner that a finding that no reasonable efforts were required is an independent basis upon which the trial court could have terminated the parental rights of the respondents. In In re Jorden R., supra, 293 Conn. 554, this court reviewed a decision by the Appellate Court which had concluded, inter alia, that the trial court’s factual finding that the respondent was unable or unwilling to benefit from reunification efforts was clearly erroneous. In that case, this court reasoned as follows: ‘‘In light of the trial court’s finding that the [petitioner] had made reasonable efforts to reunify the respondent with [the minor child] and the respondent’s failure to challenge that finding, the Appel- late Court’s decision, which disturbed only the trial court’s finding that reunification efforts were not required, cannot benefit the respondent meaningfully. Despite the Appellate Court’s holding, the trial court’s ultimate determination that the requirements of § 17a- 112 (j) (1) were satisfied remains unchallenged and intact. In short, the Appellate Court’s decision affords the respondent no practical relief. The Appellate Court should not have addressed the respondent’s claim, but rather, should have declined to do so because it raised a moot issue.’’ (Footnote omitted.) Id., 557. Similarly, a finding that reunification efforts are not required under §§ 17a-112 (j) (1) and 17a-111b is an independent basis on which to terminate the parental rights of a respon- dent. Therefore, if the trial court made such a finding in the present case, and the respondents did not timely appeal from that finding, a decision by this court that the trial court improperly determined either that the petitioner failed to make reasonable efforts or that the respondents were unable or unwilling to benefit from reunification services could not benefit the respon- dents meaningfully. Nevertheless, the state of the record in this case pre- sents a unique issue. The trial court explained in its articulation that it granted the petitioner’s ‘‘motion for finding of no reunification efforts’’ and this court has subsequently obtained a copy of the order granting that motion. The trial court file, which was certified by the trial court clerk on June 26, 2015, however, did not contain the trial court’s order granting the petitioner’s ‘‘motion for finding of no reunification efforts.’’ Instead, the certified copy of the trial court file includes an unexecuted order sheet attached to the petitioner’s motion. As previously stated in this opinion, a printed copy of the electronic docket for these matters shows that neither the petitioner’s motion nor the trial court’s order was entered by the trial court clerk as of June 26, 2015. Furthermore, the order granting the petitioner’s ‘‘motion for finding of no reunification efforts’’ that this court ultimately obtained does not contain any indication that the parties were given notice of the order. As a result of the clerical omission of this motion and order from the electronically maintained docket and the certified copy of the trial court file, it is not clear that the respondents had notice of the trial court’s determination under §§ 17a-112 (j) (1) and 17a-111b within the time period permitted for appeal. In effect, the integrity of the trial court’s record keeping process was compromised, thus potentially affecting the appel- late rights of the respondents. It is undisputed that ‘‘[t]he right of a parent to raise his or her children has been recognized as a basic consti- tutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Accordingly, a parent has a right to due process under the fourteenth amendment to the United States constitution when a state seeks to terminate the relationship between parent and child. See Lassiter v. Dept. of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981).’’ (Footnote omitted.) In re Yasiel R., 317 Conn. 773, 782, 120 A.3d 1188, reconsideration denied, 319 Conn. 921, 126 A.3d 1086 (2015). On the basis of the foregoing, although we agree that the trial court’s finding that no reunification efforts are required would be an independent basis on which to terminate the respondents’ parental rights and that, therefore, their appeals would be moot because they did not timely appeal from that finding, we conclude that such a result would violate the due process rights of the respondents in these unique circumstances. Spe- cifically, we cannot conclude that the respondents had an adequate opportunity to appeal from the trial court’s determination that reunification efforts are not required because of the clerical error in the present case. Accord- ingly, in order to protect the due process rights of the respondents in the present case, we must remand the matter to the trial court for a new trial to begin no later than September 15, 2016. The judgments of the trial court terminating the parental rights of the respondents as to the minor chil- dren are reversed and the case is remanded to that court for a new trial in accordance with this opinion. In this opinion ROGERS, C. J., and PALMER, ZARE- LLA, McDONALD and ROBINSON, Js., concurred. * In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. ** July 21, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. 1 Specifically, the respondents claim that the judgments of the trial court should be reversed and the case remanded for a new trial because the trial court did not canvass the respondents pursuant to the rule articulated in In re Yasiel R., 317 Conn. 773, 795, 120 A.3d 1188, reconsideration denied, 319 Conn. 921, 126 A.3d 1086 (2015), which was released during the pendency of these appeals. The respondents further claim that the trial court improp- erly determined, pursuant to General Statutes (Rev. to 2013) § 17a-112 (j), that: (1) the petitioner had made reasonable efforts to reunify the respon- dents with their minor children; (2) the respondents were unwilling or unable to benefit from reunification services; and (3) the respondents’ parental rights as to Egypt should be terminated under the doctrine of predictive neglect. Because we conclude that the record is not sufficiently clear to determine whether the respondents were properly notified of the basis of the trial court’s judgments such that they could properly appeal from its determination that the petitioner was not required to make reunification efforts pursuant to General Statutes (Rev. to 2013) §§ 17a-112 (j) and 17a- 111b, and that such a clerical error implicates the due process rights of the respondents, we do not reach the other claims of the respondents, but remand the matter for a new trial. 2 General Statutes (Rev. to 2013) § 17a-112 (j) provides: ‘‘The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a- 717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child’s physical, educational, moral or emotional well- being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; (D) there is no ongoing parent-child relationship, which means the relation- ship that ordinarily develops as a result of a parent having met on a day- to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child; (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent’s parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families; (F) the parent has killed through deliberate, nonaccidental act another child of the parent or has requested, commanded, importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent; or (G) the parent was convicted as an adult or a delinquent by a court of competent jurisdiction of a sexual assault resulting in the conception of the child, except a conviction for a violation of section 53a-71 or 53a-73a, provided the court may terminate such parent’s parental rights to such child at any time after such conviction.’’ Hereinafter, all references to § 17a-112 are to the 2013 revision of the General Statutes unless otherwise noted. 3 Because the Commissioner of Children and Families acts on behalf of the Department of Children and Families, references to the petitioner include both the Department of Children and Families and the Commissioner of Children and Families. 4 We note that the counsel for the minor children has adopted the brief of the petitioner. 5 General Statutes (Rev. to 2013) § 17a-111b (b) provides: ‘‘The Commis- sioner of Children and Families or any other party may, at any time, file a motion with the court for a determination that reasonable efforts to reunify the parent with the child are not required. The court shall hold an evidentiary hearing on the motion not later than thirty days after the filing of the motion or may consolidate the hearing with a trial on a petition to terminate parental rights pursuant to section 17a-112. The court may determine that such efforts are not required if the court finds upon clear and convincing evidence that: (1) The parent has subjected the child to the following aggravated circumstances: (A) The child has been abandoned, as defined in subsection (j) of section 17a-112; or (B) the parent has inflicted or knowingly permitted another person to inflict sexual molestation or exploitation or severe physi- cal abuse on the child or engaged in a pattern of abuse of the child; (2) the parent has killed, through deliberate, nonaccidental act, another child of the parent or a sibling of the child, or has requested, commanded, importuned, attempted, conspired or solicited to commit or knowingly permitted another person to commit the killing of the child, another child of the parent or sibling of the child, or has committed or knowingly permitted another person to commit an assault, through deliberate, nonaccidental act, that resulted in serious bodily injury of the child, another child of the parent or a sibling of the child; (3) the parental rights of the parent to a sibling have been terminated within three years of the filing of a petition pursuant to this section, provided the commissioner has made reasonable efforts to reunify the parent with the child during a period of at least ninety days; (4) the parent was convicted by a court of competent jurisdiction of sexual assault, except a conviction of a violation of section 53a-71 or 53a-73a resulting in the conception of the child; or (5) the child was placed in the care and control of the commissioner pursuant to the provisions of sections 17a-57 to 17a-61, inclusive.’’ Hereinafter, all references to § 17a-111b are to the 2013 revision of the General Statutes unless otherwise noted. 6 In an articulation issued on October 22, 2015, the trial court clarified that its neglect finding as to Egypt was predicated on the doctrine of pre- dictive neglect. 7 The petitioner also sought to terminate the respondent father’s parental rights with respect to Egypt on the basis of assault resulting in serious bodily injury to another child. See General Statutes (Rev. to 2013) § 17a- 112 (j) (3) (F). While the court found ‘‘clear and convincing evidence . . . that [the respondent father] made some qualified admissions as to his part in the assault on Mariam,’’ it ultimately concluded that the petitioner had failed to prove this ground for termination against the respondent father. 8 The respondents appealed the judgments of the trial court to the Appel- late Court. On March 2, 2016, after oral argument had taken place in the Appellate Court, we transferred the respondents’ appeals to this court pursu- ant to General Statutes § 51-199 (c) and Practice Book § 65-2.
45 F.Supp.2d 840 (1999) KAY-CEE ENTERPRISES, INC., Plaintiff, v. AMOCO OIL COMPANY, Defendant. No. 97-2406-JWL. United States District Court, D. Kansas. February 10, 1999. 841 Mark S. Gunnison, Payne & Jones, Chtd., Overland Park, KS, Anthony F. Lo Cicero, Nancy M. Dodderidge, Amster, Rothstein & Ebenstein, New York City, for Kay-Cee Enterprises, Inc., plaintiff. E. Wayne Taff, Steven F. Coronado, Sherman, Taff & Bangert, P.C., Kansas City, MO, for Amoco Oil Company, defendant. Christy M. Caddell, Berman, DeLeve, Kuchan & Chapman, Kansas City, MO, for Louis S. Cupp, movant. MEMORANDUM AND ORDER LUNGSTRUM, District Judge. By this action, plaintiff Kay-Cee Enterprises, Inc. ("Kay-Cee") seeks damages arising from defendant Amoco Oil Company's ("Amoco") alleged breach of contract. The matter is presently before the court on defendant's motion for summary judgment (doc. 75) and plaintiff's motion for partial summary judgment as to liability (doc. 79).[1] For the reasons set forth below, the court denies both motions as to 842 liability, but sustains plaintiff's motion as to defendant's affirmative defenses of failure of consideration and impossibility of performance. I. Background Plaintiff Kay-Cee is a corporation organized under the laws of Missouri with its principal place of business in Lenexa, Kansas. Defendant Amoco is a Delaware corporation with its principal place of business in Chicago, Illinois. The undisputed facts reveal that in June 1994, Kay-Cee and Amoco entered into a written trademark licensing agreement, whereby Kay-Cee was granted the right to market promotional merchandise bearing the Amoco tradename and torch-and-oval logo. The promotional items sold by plaintiff included clothing, hats, writing implements, and mugs, and were marketed largely to Amoco's employees and their customers. In return for the right to sell goods featuring the Amoco trademarks, Kay-Cee agreed to pay royalty fees equivalent to six percent of the gross sales of its Amoco-related products. At some point following the execution of the licensing agreement, plaintiff became aware that products bearing the Amoco trademarks were being marketed and sold by unauthorized vendors. According to plaintiff, these unlicensed dealers marketed their wares to plaintiff's own customers, in direct competition with plaintiff's business, and thus caused plaintiff to suffer lost profits. On August 20, 1998, Kay-Cee filed this action alleging that Amoco breached the contract by failing to curtail the marketing of unlicensed goods bearing the Amoco trademarks sold in direct competition with plaintiff's Amoco-related products. Defendant moved for summary judgment as to all claims, arguing that the licensing agreement was non-exclusive in nature, and thus imposed no duty, express or implied, upon defendant to "police" others' use of its trademarks. Plaintiff moved for summary judgment as to defendant's liability for the breach, and as to defendant's affirmative defenses of failure of consideration and impossibility of performance. II. Legal Standard Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). 843 The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). III. Discussion A. Contractual Ambiguity Under Kansas Law,[2] the construction of a written contract is a matter of law for the court. Wagnon v. Slawson Exploration Co., 255 Kan. 500, 511, 874 P.2d 659 (1994). "The cardinal rule of contract interpretation is that the court must ascertain the parties' intention and give effect to that intention when legal principles so allow." Ryco Packaging Corp. v. Chapelle Int'l, Ltd., 23 Kan. App.2d 30, 926 P.2d 669, 674 (1996) (citing Hollenbeck v. Household Bank, 250 Kan. 747, 751, 829 P.2d 903, 906 (1992)). Where a contract is complete and unambiguous on its face, the court must determine the parties' intent from the four corners of the document, without regard to extrinsic or parol evidence. Simon v. National Farmers Org., Inc., 250 Kan. 676, 679-80, 829 P.2d 884 (1992). As a facet of contractual construction, whether an instrument is ambiguous is a question of law for the court. Id. A contract is ambiguous if it contains "provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language." Id. Contractual ambiguity appears only when "the application of pertinent rules of interpretation to the face of the instrument leaves it generally uncertain which one of two or more possible meanings is the proper meaning." Marquis v. State Farm Fire and Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213, 1219 (1998). The court must not consider the disputed provision in isolation, but must instead construe the term in light of the contract as a whole, such that if construction of the contract in its entirety removes any perceived ambiguity, no ambiguity exists. Arnold v. S.J.L. of Kansas Corp., 249 Kan. 746, 749, 822 P.2d 64 (1991). As with many contract disputes, the source of contention involves the parties' differing interpretations of the nature and extent of rights granted, and concomitant duties owed, under the contract. The dispute arises from the parties' differing constructions of the contract's grant of the "non-exclusive right to use the Amoco Trademarks," and the contract's subsequent use of the term "exclusive authorization."[3] According to defendant, the controversy stems from, and is solved by its interpretation 844 of, the presence of the "non-exclusive right" provision. Defendant contends that the term "non-exclusive" is synonymous with "limited," such that the scope of plaintiff's right to use the Amoco trademarks was quite narrow. Specifically, defendant argues that the nonexclusive nature of the licensing agreement allowed defendant unfettered discretion to extend the right to use the Amoco trademarks to additional parties. Further, defendant claims that the parties' contract neither expressly nor impliedly required defendant to prevent third parties from using the Amoco trademarks. With respect to the "exclusive authorization" term appearing in paragraph 10 of the parties' agreement, defendant refers the court to paragraph 12's subsequent use of the term "authorization," arguing that both paragraphs' inclusion of the word "authorization" indicates that the two paragraphs are interrelated. Defendant further argues that, when read together, paragraphs 10 and 12 provide that the permission to use the trademarks was revocable under certain circumstances and that plaintiff had no right to transfer, assign, or otherwise sublicense defendant's authorization to third parties. Defendant maintains that the use of the word "authorization," as opposed to the term "right," was purposeful, such that while the authorization to use the Amoco trademarks was exclusive to plaintiff, the right to use the Amoco trademarks was non-exclusive in nature. In contrast, plaintiff argues that although the contract contains the term "non-exclusive" to describe plaintiff's right to use defendant's trademarks, that term means only that plaintiff was not the sole entity granted permission to use the Amoco trademarks, but was instead a member of a select group of vendors, each of which entered similar licensing agreements with defendant. Accordingly, the licensing agreement was "non-exclusive" only in the sense that vendors other than plaintiff, as opposed to any vendor who so wished, were also specifically authorized by defendant to use the Amoco trademarks. The "non-exclusive" language, plaintiff claims, does not describe the nature of the right conferred upon plaintiff, but is pertinent only to describe the relationship between plaintiff and the remaining authorized dealers amongst whom the exclusive authorization was shared. Plaintiff further contends that its position is bolstered by the contract's later inclusion of the "exclusive authorization" language, such that the right conferred by the contract to use defendant's trademarks was indeed exclusive, albeit to a group of authorized vendors (rather than to plaintiff alone). In light of the principles governing contract construction, the court concludes that the intention of the parties is not discernable from the four corners of the parties' agreement, and thus that the contract between Kay-Cee and Amoco is ambiguous. First, the language of the contract contains no clear designation of the intended scope of the rights conferred by the licensing agreement, and construction of the contract as a whole fails to remove the ambiguity from the disputed terms. Further, the court finds both parties' interpretations of the terms "non-exclusive right" and "exclusive authorization" reasonable. Accordingly, the trier-of-fact must consider evidence of the pertinent facts and circumstances to determine the meaning of the contract in order to effectuate the parties' intent. B. Implied Duty to Police the Sale of Unlicensed Goods 1. Implied-in-fact Duty to Police Plaintiff alleges that implicit in the parties' agreement was defendant's duty to 845 prevent unauthorized vendors from engaging in the manufacture and sale of products bearing the Amoco trademarks. Plaintiff argues that defendant's duty to police the sale of unlicensed goods necessarily flows from the contract because the licensing agreement would be of no value to plaintiff absent such an implied obligation. Plaintiff further alleges that the "toothless" cease and desist letters sent by defendant to unauthorized vendors were insufficient to adequately fulfill defendant's duty to curtail the unauthorized dealers' sale of unlicensed goods. Instead, plaintiff argues, incumbent upon defendant was the duty to make a more aggressive effort to deter unauthorized vendors, such as threatening or effecting non-payment for the unlicensed goods, or, alternatively, threatening or instigating litigation against the offending vendors. Defendant, on the other hand, contends that it was under no duty, express or implied, to prevent other vendors from marketing merchandise bearing the Amoco trademarks. Defendant adamantly claims that the contract unambiguously grants a mere non-exclusive right to use its trademarks, and that the contract does not, by its terms, obligate defendant to control the use of the Amoco trademarks by unauthorized vendors. Defendant claims that if the court determines that the contract is ambiguous, the precise meaning of the contract, the nature and extent of the parties' obligations due thereunder, and whether either party is in breach of the contract are questions falling squarely within the province of finder of fact. The facts surrounding the parties' intentions with respect to the contract, and the inferences to be drawn therefrom, are far from uncontroverted. First, the parties are in dispute as to the number of vendors to which the licensing agreement was drafted to apply. Whereas plaintiff maintains that the licensing agreement was exclusive to a select group of vendors chosen by defendant, defendant contends that by virtue of the "non-exclusive right" conferred by the contract, defendant was free to issue as many trademark licenses as it wished. A further fact upon which the parties disagree concerns plaintiff's claim that it became interested in entering the licensing agreement only because it understood that only it and two other vendors would be the exclusively authorized dealers of Amoco wearables. Defendant disputes this fact insofar as it assumes that the agreement was exclusive such that defendant was not allowed to extend its license to any other vendors. Moreover, defendant maintains, plaintiff was not induced to enter the agreement by any promise that the license would yield substantial profits, but that plaintiff instead understood that its success in the Amoco wearables business was dependent upon plaintiff's own performance. Finally, as support for its contention that the licensing agreement conferred upon licensees the exclusive right to use the Amoco trademarks, plaintiff refers the court to various Amoco announcements, as well as an article printed in defendant's in-house newsletter, each of which indicate that the primary purpose for Amoco's trademark licensing program was to protect the company's trademarks by limiting the number of vendors allowed to use them. While defendant admits that the licensing program was indeed launched, at least in part, to control the quality of goods bearing the Amoco trademarks, defendant argues that the contract clearly bestowed a non-exclusive right from which a duty to police the unauthorized use of the trademarks simply cannot be inferred. The court concludes that neither party has clearly demonstrated an absence of a material fact issue with respect to the existence, or lack thereof, of defendant's duty to restrict the sale of unlicensed goods bearing the Amoco trademarks. Moreover, even if the court were to find that the undisputed facts established such a duty, plaintiff has provided insufficient evidence from which the court could determine, as a matter of law, the parameters of 846 that duty. Likewise, defendant has failed to meet its burden to show an absence of material fact issues with respect to its contention that no duty to curtail the flow of unauthorized goods was owed. Accordingly, both plaintiff and defendant have failed to satisfy their respective burdens to demonstrate that no material issues of fact remain for trial. 2. Implied Duty of Good Faith and Fair Dealing[4] Under Kansas law, a duty of good faith and fair dealing is implied in every contract except employment-at-will contracts. Daniels v. Army Nat'l Bank, 249 Kan. 654, 658, 822 P.2d 39, 43 (1991) (good faith duty implied in every contract); Morriss v. Coleman Co., 241 Kan. 501, 518, 738 P.2d 841, 851 (1987) (covenant is not implied in employment-at-will contracts). "The purpose of the good faith doctrine is to protect the reasonable expectations of the parties." Flight Concepts Ltd. Partnership v. Boeing Co., 38 F.3d 1152, 1157 (10th Cir.1994) (applying Kansas law). This implied duty requires the parties to an agreement to refrain from "intentionally and purposely do[ing] anything to prevent the other party from carrying out his part of the agreement, or do[ing] anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Daniels, 249 Kan. at 658, 822 P.2d at 43 (quoting Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987)). To the extent that plaintiff argues that, in the context of this case, the duty of good faith and fair dealing necessarily imposed upon defendant a legal obligation to police the unauthorized use of its licensed trademarks, the court concludes that a material fact issue remains there as well. As duly noted by plaintiff, where the good faith performance of an obligation or duty is required in order to effect the reasonable expectations of the parties, courts will impose such an implied duty. See Flight Concepts, 38 F.3d at 1157. In light of its conclusion that an issue of material fact remains as to the parties' intent, the court is equally unable to determine the expectations of the parties, much less assess the reasonableness thereof. Accordingly, the court cannot, as a matter of law, rule that, pursuant to the implied duty of good faith and fair dealing, defendant was required to monitor the use of its trademarks by those not subject to a trademark licensing agreement. C. Affirmative Defenses With respect to defendant's affirmative defense of failure of consideration, the court notes that defendant's failure to preserve that issue in the pretrial order is considered a waiver of the defense. "The pretrial order supersedes the pleadings and controls the subsequent course of litigation." Hullman v. Board of Trustees of Pratt Comm. College, 950 F.2d 665, 667 (10th Cir.1991); Fed. *847 R.Civ.P. 16(e). Defendant has not timely sought to amend the pretrial order to include the failure of consideration defense, but has instead apparently abandoned the defense altogether. Accordingly, plaintiff's motion for summary judgment is granted as to this defense. Although preserved in the pretrial order, defendant's impossibility of performance defense suffers a similar fate. In its motion for partial summary judgment, plaintiff extensively briefed the issue, arguing that the impossibility defense is inappropriate under the facts of this case. In its response, however, defendant wholly fails to address the issue, and for that reason, the inapplicability of the impossibility defense is deemed admitted by defendant. The court notes that even if defendant did not intend to waive its impossibility defense, that theory appears to be entirely without merit on the evidentiary record presented.[5] Thus, plaintiff's motion for summary judgment is granted as to this defense as well. IT IS THEREFORE BY THE COURT ORDERED THAT defendant's motion for summary judgment (doc. 75) is denied. IT IS FURTHER ORDERED THAT defendant's motion to strike the declaration of James H. Butler and to strike plaintiff's motion for partial summary judgment (doc. 84) is denied. IT IS FURTHER ORDERED THAT plaintiff's motion for partial summary judgment (doc. 79) is granted in part and denied in part. Plaintiff's motion for partial summary judgment as to liability is denied. Plaintiff's motion for partial summary judgment as to defendant's affirmative defenses of failure of consideration and impossibility of performance is granted. NOTES [1] Also before the court is defendant's motion to strike the declaration of James H. Butler and to strike plaintiff's motion for partial summary judgment (doc. 84). Defendant urges this court to strike these documents on the basis that both constitute egregious violations of Fed.R.Civ.P. 56 and D.Kan.Rule 56.1. The gist of defendant's argument appears to be that, in its motion for summary judgment, plaintiff has failed to comply with those rules' directive that such a motion begin with a "concise statement of material facts." Instead, defendant argues, plaintiff's fact statement is grossly argumentative, anything but concise, and fails to properly refer to the evidentiary record. Further, defendant contends, Mr. Butler's declaration should be stricken due to its biased statements, most of which are not factual, but based on his personal opinions. In light of defendant's failure to adequately establish the prejudicial effects resulting from plaintiff's purported noncompliance with these procedural rules, coupled with its coinciding failure to cite any authority to support its contention that the argumentative nature of a statement of facts and/or a party's declaration warrants the drastic measure of striking such documents from the record, the court denies defendant's motion. The court notes, however, that to the extent that plaintiff's statement of undisputed facts occasionally fails to refer to the evidentiary record, the court may not consider those alleged facts if not admitted by the defendant. Plaintiff is in the future advised to more accurately adhere to the prescribed procedures of Fed.R.Civ.P. 56 and D.Kan.Rule 56.1. [2] The parties agree that general principles of contract law govern the interpretation of the contract at issue in this case. The parties further agree that these general contract principles are the same under both Illinois and Kansas law. In light of the undisputed nature of the choice of law issue, the court will, for simplicity's sake, refer to Kansas caselaw to set forth the general principles of contract interpretation. [3] Paragraph 1(a) of the parties' agreement reads, in pertinent part: Licensee will have a non-exclusive right to use the Amoco Trademarks (trademarks owned and used by Amoco Oil Company) and related logos for certain merchandise including clothing, wearables and advertising specialties.... Paragraph 10 of the parties' agreement provides: The exclusive authorization hereby given is revocable by Amoco at any time in the event of Licensee's failure to abide by the terms of this agreement, and Licensee agrees to discontinue all manufacture of merchandise bearing the Amoco Trademarks immediately upon receipt of a notice of termination premised upon a failure to abide by such terms. Paragraph 12 of the parties' agreement provides: This authorization to use the Amoco Trademarks is personal to Licensee, and cannot be assigned or sublicensed without the prior written consent of Amoco. [4] The court notes that determining the existence and scope of any implied rights and duties concerning policing most likely implicates trademark law principles, which neither party addressed in the briefs. For example, in a case which appears to be a bit of a departure, see 2 J. THOMAS McCARTHY, McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 18.44 at n. 4 (4th ed.1997), the Seventh Circuit has recently held that "[t]he [trademark] owner can if he wants, unless contractually committed otherwise, abandon the trademark, dilute it, attach it to goods of inferior quality, attach it to completely different goods can, in short, take whatever steps he wants to jeopardize or even completely destroy the trademark." Westowne Shoes, Inc. v. Brown Group, Inc., 104 F.3d 994, 997 (7th Cir.1997). In contrast, it has also been held that a trademark and copyright licensor is "under an implied good faith obligation not to do anything that would impair or destroy the value of an exclusive licensee's rights." Original Appalachian Artworks v. S. Diamond Assocs., Inc., 911 F.2d 1548, 1550 (11th Cir. 1990). The parties are directed to address the impact of trademark law in their trial briefs. It surely affects the court's perspective with respect to the reasonable expectations of the parties and provides context and guidance for the resolution of this dispute. [5] In Kansas, the doctrine of "impossibility, or as stated by the more modern authorities, impracticability of performance may relieve a promisor from liability for breach of contract." Sunflower Elec. Cooperative, Inc. v. Tomlinson Oil Co., Inc., 7 Kan.App.2d 131, 138, 638 P.2d 963, 969 (1981). The general rule concerning discharge by supervening impracticability is stated in the Restatement (Second) of Contracts § 261 (1981): Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary. Id.; Central Kansas Credit Union v. Mutual Guaranty Corp., 102 F.3d 1097, 1102 (10th Cir.1996) (applying Kansas law). The court's reading of the record reveals no apparent evidence to substantiate the elements of such a defense. Consequently, defendant's abandonment of the impossibility defense is quite appropriate.
247 F.3d 370 (2nd Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,CHARLES M. CARBERRY, Appellee,v.INTERNATIONAL BROTHERHOOD OF TEAMSTERS et al., Defendants,RON CAREY & WILLIAM HAMILTON, Appellants, Docket Nos. 98-6262; 98-6232; 99-6266August Term, 2000 UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT Argued: January 22, 2001Decided: April 18, 2001 Appellants Ron Carey and William Hamilton appeal from a decision of the District Court for the Southern District of New York (David N. Edelstein, J.), upholding and enforcing union disciplinary sanctions imposed on them by the Independent Review Board of the International Brotherhood of Teamsters. Carey also appeals from a subsequent decision from the same district court, which affirmed the decision of the Independent Review Board to deny him post-judgment relief. Affirmed.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] KAREN B. KONIGSBERG, Assistant U.S. Attorney for the Southern District of New York, New York, NY (Steven M. Haber, Jeffrey S. Oestericher, Assistant U.S. Attorneys, on the brief) for Appellee United States of America, as to appellant Ron Carey. ANDREW W. SCHILLING, Assistant U.S. Attorney for the Southern District of New York, New York, NY (Steven M. Haber, Assistant U.S. Attorney, on the brief) for Appellee United States of America, as to appellant William Hamilton. BRUCE C. BISHOP, Steptoe & Johnson, Washington D.C. (Reid H. Weingarten, Mark J. Hulkower, on the briefs) for Appellant Ron Carey. G. ROBERT GAGE, JR., Gage & Pavlis, New York, NY (Christopher P. Conniff, on the brief) for Appellant William W. Hamilton, Jr. CHARLES M. CARBERRY, Independent Review Board Chief Investigator, New York, NY (Bonnie L. Hemenway, Celia A. Zahner, on the briefs) for Appellee Charles M. Carberry, as to appellants Ron Carey and William Hamilton. Before: WALKER, Chief Judge, PARKER & KATZMANN, Circuit Judges. KATZMANN, Circuit Judge: 1 Appellants Ronald Carey ("Carey") and William Hamilton ("Hamilton") appeal from a decision of the District Court for the Southern District of New York (David N. Edelstein, J.), upholding and enforcing union disciplinary sanctions imposed on them by the Independent Review Board ("IRB") of the International Brotherhood of the Teamsters. United States v. IBT ("Carey & Hamilton Discipline") 22 F. Supp. 2d 135 (S.D.N.Y. 1998). Carey also appeals from a subsequent decision of the same district court which affirmed the decision of the IRB to deny him post-judgment relief. United States v. IBT ("Carey Post-Judgment Motion"), 1999 WL 673340 (S.D.N.Y. Aug. 27, 1999) We affirm the decisions of the district court in their entirety. 2 After a short background section, this opinion will set forth the basic facts and procedural history relevant to all three appeals.1 We then review and address the claims made by Carey and Hamilton in support of their appeals. Our decision to affirm the decisions below against Carey and Hamilton is based in large part on the extensive factual and credibility findings made by the IRB and the deferential review that our precedents instruct us to apply to those findings. I. BACKGROUND 3 In June 1988, the government brought suit against, inter alia, the International Brotherhood of Teamsters ("IBT" or "the union") and the IBT's General Executive Board under the civil remedies provision of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). See 18 U.S.C. § 1964. The complaint alleged that the IBT was controlled by La Cosa Nostra and sought sweeping reforms of the IBT, including the appointment of trustees to conduct the affairs of the IBT, wide ranging electoral reforms, and permanent injunctions against the commission of racketeering within the union. See United States v. IBT ("1991 Election Rules Order"), 931 F.2d 177, 180 (2d Cir. 1991). The case was resolved through a settlement, embodied in a voluntary consent order entered in March of 1989 ("Consent Decree"). See id. The goals of the Consent Decree were, inter alia, to rid the IBT of the influence of organized crime and establish a culture of democracy within the union. See generally id. The Consent Decree established rules for union elections and standards for imposing disciplinary sanctions on violators. See id. The Consent Decree has been discussed in more detail in previous opinions from this court. See id.; see also United States v. IBT ("Friedman & Hughes"), 905 F.2d 610, 613 (2d Cir. 1990). II. FACTS AND PROCEDURAL HISTORY 4 In 1992, Carey ran for General President of the IBT and won the first general election in which members voted for IBT International officers. Carey took office in February 1992. From 1995 through July 29, 1997, Hamilton served as Director of the IBT's Government Affairs Department; in February 1995, he became an IBT member. As Director of the Government Affairs Department, Hamilton was responsible for recommending which political contributions the IBT should make in connection with its legislative and political goals. In 1996, the IBT again held elections, and Carey sought re-election at the head of a slate of candidates for International officers. 5 The 1996 union elections were supervised, pursuant to the Consent Decree, by a court-appointed Election Officer, Barbara Zack Quindel ("Quindel"). Following Quindel's announcement of the winning candidates for the 1996 elections, which included Ron Carey as General President, post-election protests were filed. Quindel conducted an investigation of the post election protests and uncovered serious violations of the 1996 Election Rules. On August 21, 1997, Quindel issued her decision addressing certain post election protests and concluded that "[t]he Carey Campaign and each member of the Carey slate further violated Article XII, Section 1(b) of the Rules by receiving the use and benefit of [ ] prohibited contributions." Quindel determined that these impermissible campaign contributions may have affected the outcome of the races of every member of the Carey slate. Therefore, Quindel refused to certify the results of the 1996 Election and instead ordered a rerun election for all International officer positions except for those won by the opposing slate of candidates and a candidate elected without opposition. 6 Additional evidence surfaced after Quindel's decision of August 21, 1997. On September 18, 1997, Jere Nash ("Nash"), Carey's campaign manager; Martin Davis ("Davis"); and Michael Ansara ("Ansara"), both campaign staff, pled guilty in the United States District Court for the Southern District of New York to felonies arising out of their conduct on behalf of the Carey campaign. As part of their respective plea agreements, Nash, Davis, and Ansara each agreed to cooperate fully with the United States Attorney's Office. 7 Based on this new information, Quindel reopened her investigation into whether Carey had knowledge of, or involvement in, the illegal acts these three individuals perpetrated. During the course of her inquiry, however, Quindel discovered information that led her to recuse herself from any further investigation. Subsequently, by order dated September 29, 1997, the district court designated former federal district court judge Kenneth Conboy as Election Officer "for the sole purpose of investigating and deciding the issue of disqualification of Ronald Carey from the rerun election." 8 After an investigation in which he issued a number of subpoenas, on November 17, 1997, Election Officer Conboy released a 74-page decision finding that Carey engaged in extensive violations of the rules governing the 1996 election. Based on these findings, Election Officer Conboy disqualified Carey from running as a candidate in the rerun election. Carey appealed this ruling to the district court. The district court affirmed the decision of Election Officer Conboy, see United States v. IBT ("Carey"), 988 F. Supp. 759 (S.D.N.Y.1997), which in turn was affirmed by this court. See United States v. IBT ("Carey Disqualification"), 156 F.3d 354 (2d Cir. 1998). 9 A. The First IRB Proceeding. 10 In addition to its provisions pertaining to the conduct of free and fair elections, the Consent Decree between the government and the IBT also established the IRB to oversee the eradication of corruption in the IBT. Detailed rules approved by the district court and this court govern operation of the IRB. See United States v. IBT ("IRB Rules"), 803 F. Supp. 761 (S.D.N.Y. 1992) aff'd in part, rev'd in part, 998 F.2d 1101 (2d Cir. 1993). The three-member IRB is vested with broad investigative and disciplinary powers, including the power to investigate allegations of corruption.2 See IRB Rules, 803 F. Supp. at 784-85. 11 On October 22, 1997, the IRB issued an Investigative Report to the IBT's General Executive Board ("GEB") recommending that Hamilton be charged with bringing 12 reproach upon the IBT by embezzl[ing] IBT funds by arranging for IBT donations to certain advocacy groups as part of a scheme in which, in return for the IBT's donations, individuals, directly or indirectly, would donate money to benefit the [] Carey [] campaign thereby violating the IBT Constitution. 13 In addition, on November 25, 1997, the IRB issued an Investigative Report recommending that Carey be charged as follows: 14 In breach of your fiduciary obligations, you authorized IBT contributions in October, 1996 to Citizen Action, Project Vote and the National Council of Senior Citizens, totaling $735,000, knowing the contributions would result in a personal benefit to you in money to pay expenses for your re election campaign. You failed both to disclose that benefit and to give it to the IBT, as your fiduciary duties required. You also failed to exercise your fiduciary obligation to inquire into the circumstances surrounding your co fiduciary's recommendations of those transactions. 15 The GEB filed the recommended charges against Hamilton and Carey and returned the matter to the IRB for a joint hearing. 16 The charges against Carey and Hamilton were based on a scheme by which IBT funds were manipulated in order to generate contributions to the Carey campaign. Specifically, as the IRB noted, in October 1996 the IBT gave $735,000 in political contributions from the IBT treasury to three political advocacy organizations: (1) $475,000 to Citizen Action, (2) $175,000 to Project Vote, and (3) $85,000 to the National Council for Senior Citizens ("NCSC"). These contributions were part of a leveraged scheme whereby individuals would contribute to the Carey campaign in return for IBT contributions to these political organizations. The IRB found that Hamilton, as the Director of the Government Affairs Department, helped Nash and Davis implement the scheme by suggesting to Carey and others which donations should be made, while Carey approved the payments to these groups. As a result of this scheme, these political advocacy organizations generated in the range of $200,000 for the Carey campaign. These monies were used to fund a large, last minute mailing to IBT members designed to turn out the pro Carey vote in the IBT election. That mailing and the source of the funds were the basis for the Election Officer Quindel's refusal to certify the results of the 1996 election and her call for a rerun election. 17 On December 5, 1997, Hamilton's counsel wrote the IRB, requesting an adjournment of the IRB hearing "until the completion of any investigation by the United States Attorney's Office for the Southern District of New York regarding any conduct relating to these proposed charges." The letter did not mention the IBT Constitution. The IRB granted Hamilton a brief stay, and, on December 17, 1997, scheduled a consolidated hearing for Carey and Hamilton on January 20 and 21, 1998. Less than one week before the hearing, Carey applied to the district court for authority to issue subpoenas to several potential witnesses. Hamilton joined Carey's application with regard to one witness. The district court denied the requests for subpoenas. 18 On January 20 22 and March 11, 1998, the IRB held a consolidated hearing concerning the charges against Hamilton and Carey in Washington, D.C. While Carey testified at the hearing, Hamilton did not. On April 27, 1998, after the IRB hearing was concluded, a grand jury in the Southern District of New York returned an indictment, charging Hamilton with felonies arising out of his role in the campaign fundraising scheme and its cover-up.3 That day, Hamilton's counsel sent a letter to the IRB stating that counsel did not consider it advisable for Hamilton to file a post-hearing memorandum, and again requested a stay of the proceedings. The IRB did not grant the stay. 19 After conducting the four-day hearing which included testimony, more than 100 exhibits, and numerous written submissions, the IRB issued its decision on July 27, 1998. The IRB found that Hamilton had brought reproach upon the IBT and embezzled IBT funds when he knowingly participated in the illegal fundraising scheme benefitting the Carey Campaign, and that Carey breached his fiduciary duty and brought reproach upon the IBT by failing to inquire before approving the four large political contributions which resulted in monetary benefit to his campaign. The IRB expressly found that Carey both knew of and approved the contributions at issue. ("We can only conclude that at the times in question Carey knew of the proposed contributions and approved them, and we so find."). 20 Accordingly, the IRB imposed the following penalties: 21 Hamilton [and Carey are] permanently barred from membership, permanently barred from holding any office or employment relationship with the IBT or its affiliates or otherwise drawing any salary or compensation from any IBT affiliated source. 22 B. The First District Court Decision. 23 On July 27, 1998, pursuant to the procedures outlined in the Consent Decree, the IRB submitted an application to the District Court for the Southern District of New York, requesting that an order be entered affirming the IRB's decision regarding Carey and Hamilton. Both Carey and Hamilton submitted objections to the application, but the district court granted the application and affirmed the IRB decision. See Carey & Hamilton Discipline, 22 F. Supp. 2d 135. The district court rejected Carey's argument that there was insufficient evidence to support the IRB's finding that Carey knew of and approved the $735,000 in political contributions which resulted in a windfall to his campaign. Id. at 139-42. Similarly, the district court rejected Hamilton's challenge to the sufficiency of the evidence. Id. at 144. The court rejected Carey's claim that the denial of subpoena power deprived him of a "full and fair hearing" under the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(5). Id. at 142. Similar to Carey, Hamilton argued that the denial of subpoena power, together with the IRB's refusal to grant his request to stay the IRB proceedings against him pending the outcome of the federal criminal investigation, foreclosed a "full and fair hearing" under the LMRDA. The district court found that Hamilton was not legally entitled to a stay in the proceedings or to the use of subpoena power. Id. at 143-44. The court additionally found that the penalties imposed on Carey and Hamilton, lifetime bans from employment with the IBT and similar bans from associating with members of the IBT, were within the IRB's discretion. Id. at 144-45. Carey and Hamilton submitted separate appeals. 24 C. The Motions for Post-Judgment Relief. 25 Subsequent to the filing of those appeals, in April 1999, Nash, Carey's campaign manager and a key witness against Carey and Hamilton at the disciplinary hearing before the IRB, pled guilty to a further count of mail fraud and one count of making false statements in connection with a "rebilling scheme." In this scheme Nash caused the IBT (instead of the Carey Campaign) to pay three invoices totaling $21,532.17 of Carey Campaign expenses. In his testimony at his plea hearing, Nash described the rebilling scheme as follows: 26 [T]he November Group provided services to both the [IBT] and the Ron Carey Campaign. As the campaign manager for [Carey], I often received invoices from the November Group for services provided to the Carey campaign. Because of the pressing concerns about financing for the Carey campaign in or about September of 1996, I told an employee of the November Group to rebill to the [IBT] certain November Group invoices that had been sent to the Carey campaign. 27 As a result of my directions to the November Group employee and later Martin Davis, president of the November Group, arranged for these three Carey campaign invoices, totaling approximately $21,532, to be rebilled to the [IBT]. 28 Testimony of Nash at April 20, 1999 hearing before Hon. Denise L. Cote, S.D.N.Y., in United States v. Jere Nash, 51 97 CR. 944, at p. 17. 29 Nash also admitted at the plea hearing that he had lied to the government about his knowledge of, and participation in, the rebilling scheme. Based on this new information about Nash, on April 6, 1999, Carey moved in the district court for an order directing the IRB to consider Carey's motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure and under the rules of the Consent Decree. The district court issued an order referring Carey's and Hamilton's motions to the IRB noting that "should the IRB, in its sole discretion, be of the opinion that it is desirable that the IRB review these [Rule] 60(b) motions it is free to do so." United States v. IBT, No. 88 Civ. 4486 (S.D.N.Y. May 5, 1999).4 Because the new evidence concerning Nash's fraud arguably brought into question Nash's credibility, and because the IRB had relied on Nash's testimony in the earlier hearing, the IRB accepted the opportunity to review Hamilton's and Carey's applications for relief from judgment. 30 After briefing from the parties but without a hearing, the IRB issued a Supplemental Decision on July 19, 1999, denying both motions for post-judgment relief. The IRB determined that Nash did not commit perjury during the IRB hearing, let alone on a material issue that would likely change the outcome of the hearing. The IRB reasoned that, even absent Nash's testimony, there was ample evidence before the IRB to support its prior decision that Carey breached his fiduciary duties when he failed to inquire into the IBT political contributions that resulted in a benefit to his campaign and that Hamilton embezzled funds from the IBT to benefit Carey's campaign. Thus, the IRB found that Carey and Hamilton did not establish circumstances warranting relief from judgment. 31 The IRB requested that the district court enter an order affirming the Supplemental Decision. Carey and Hamilton submitted objections and asked the district court to reverse the Supplemental Decision, but the district court affirmed the decision of the IRB. Carey Post-Judgment Motion, 1999 WL 673340. Carey appeals. III. STANDARD OF REVIEW 32 This court has consistently stated that the findings of the IRB are entitled to "great deference" from a reviewing court. Carey Disqualification, 156 F.3d at 364 (quoting United States v. IBT ("DiGirlamo"), 19 F.3d 816, 820 (2d Cir.), cert. denied, 513 U.S. 873 (1994)) (internal quotation marks omitted); United States v. IBT ("Parise"), 970 F.2d 1132, 1137 (2d Cir. 1992) (IRB decision upheld if it is "within the realm of reason"). The Consent Decree itself specifies "an extremely deferential standard of review" by the district court namely, that of the Administrative Procedures Act ("APA") of decisions of the Consent Decree officials, and such standard has been affirmed by this circuit. See DiGirlamo, 19 F.3d at 819 20; United States v. IBT ("Cimino"), 964 F.2d 1308, 1311 (2d Cir. 1992).5 A recent case established our standard of review in cases where this court is reviewing a decision of the district court, which in turn reviewed a decision of the IRB. See United States v. IBT ("Giacumbo"), 170 F.3d 136, 143 (2d Cir. 1999). We stated: 33 Our review, like that of the district court, must be of a narrow scope, because this is an area where the IRB has been given wide discretion. [citation omitted] "The APA permits us to set aside the agency action only if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' §5 U.S.C. 706(2)(A). Although narrow, appellate review of an administrative record must nonetheless be careful, thorough and probing." Ward v. Brown, 22 F.3d 516, 521 (2d Cir. 1994). 34 We review the IRB's findings of facts for "substantial evidence" on the whole record. See DiGirlamo, 19 F.3d at 820; Cimino, 964 F.2d at 1311. The substantial evidence test is deferential. "[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Illinois Cent. R.R. v. Norfolk & W. Ry., 385 U.S. 57, 69(1966) [further citation omitted]. Substantial evidence "is more than a mere scintilla [and] means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Chrysler Corp. v. U.S. Envtl. Protection Agency, 631 F.2d 865, 890 (D.C. Cir.1980) (internal quotation and citation omitted); [further citation omitted]. 35 Assuming that the agency's findings of fact are supported by "substantial evidence," inferences based on those findings are discretionary and can only be disturbed if they are "arbitrary and capricious." 36 Giacumbo, 170 F.3d at 143. 37 In accordance with the great deference owed to the IRB's determinations, law in this circuit establishes that a court "will not substitute its assessment of a witness's credibility for that of the IRB." United States v. IBT ("Simpson"), 931 F. Supp. 1074, 1096 (S.D.N.Y.1996), aff'd, 120 F.3d 341 (2d Cir.1997). We have stated that the Consent Decree officers closest to an investigation are "best equipped to evaluate the demeanor, credibility, and ultimately the culpability of those who appear before them." Carey Disqualification, 156 F.3d at 365 (internal quotation and citation omitted); see also Cimino, 964 F.2d at 1313 (refusing to reweigh evidence or question credibility finding of consent decree officers). IV. DISCUSSION 38 A. Carey's and Hamilton's Appeals from the District Court's First Decision. 39 1. Was the IRB's decision, that Carey breached his fiduciary duty, arbitrary or capricious or unsupported by substantial evidence? 40 Carey, as the General President of the IBT, and Hamilton, as the Director of the Government Affairs Department, had fiduciary obligations to IBT members in handling the union's money. See Morrissey v. Curran, 650 F.2d 1267, 1274-75 (2d Cir. 1981); United States v. Boffa, 688 F.2d 919, 930 31 (3d Cir. 1982) ("We believe that the LMRDA established, as a matter of federal law, union members' right to the honest and faithful services of union officials."), cert denied, 465 U.S. 1066 (1984). Union officials "occupy positions of trust in relation to such organization and its members as a group" and "[i]t is [] the duty of each such person... to refrain from dealing with such organizations as an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization, and to account to the organization for any profit received by him in whatever capacity in connection with transactions conducted by him or under his direction on behalf of the organization." 29 U.S.C. § 501(a). 41 Although the majority of the IRB did not find that Carey actually knew of the illegal contribution scheme, the IRB held that the information before Carey did "impose on [him] a fiduciary duty to inquire further about any relation or tie between [his] own campaign fundraising and the IBT's payment to an advocacy group like Citizen Action."6 42 Carey's arguments to this court are similar to those addressed in the district court's thorough and well-reasoned opinion. See Carey & Hamilton Discipline, 22 F. Supp. 2d at 139-45. Carey contends that the IRB's finding that he specifically approved the contributions at issue was unsupported by the evidence.7 Such an error is crucial, Carey urges, because if he did not approve the political contributions involved in the illegal fundraising scheme, then he had no duty to inquire into those contributions and the IRB's decision would be without a basis in the law. Specifically, Carey asserts that the only evidence that he gave such approval, given that the IRB declined to rely on an affidavit provided by Monie Simpkins ("Simpkins"), Carey's personal secretary, was the unreliable and false testimony of Jere Nash. Nash testified before the IRB that, after learning from Hamilton that Carey initially rejected the proposed contribution to Citizen Action, Nash had a telephone conversation with Carey. In that conversation Nash allegedly told Carey that the contribution to Citizen Action "will help Martin Davis in the fund raising that he is doing for our campaign." According to Nash's testimony, Carey replied, "[w]ell, hell, no one ever told me about it." Nash further testified "I said, 'Does that mean that this is okay?' And he said, 'Yes, that is fine.'" Following his conversation with Carey, Nash testified he spoke with Simpkins and advised her that the IBT would be making contributions to certain political organizations and, in return, the Carey campaign would be receiving contributions from certain individuals. Nash asked her to call him if either she or Carey had any questions about the IBT's contributions. 43 Carey devotes a substantial portion of his brief challenging the IRB's conclusion that Nash informed Carey about the contribution to Citizen Action. Carey points to Nash's phone records and the IBT's phone records in an attempt to establish that the telephone call Nash described could not have taken place. The IRB rejected these arguments. Carey further argues against crediting Nash's testimony because Nash testified that the conversation with Carey concerning the Citizen Action contribution occurred on October 16 or 17, 1996. Carey asserts that this date is impossible because Hamilton's memo to Carey requesting approval of the Citizen Action donation was dated October 21. However, we note that Citizen Action's letter to Hamilton requesting funds is dated October 14, and Carey could have been aware of the request before Hamilton's memo arrived. The district court spent several pages of its opinion to consider and reject Carey's argument that there was insufficient evidence that Carey approved the political contributions. The district court impressively marshaled the evidence; we agree with its discussion and adopt the following portions of that opinion. 44 Contrary to Carey's suggestion, Nash testified that when he called Simpkins and asked her to find Carey for him, he did not know whether "she got [Carey] on the phone that minute or whether [Carey] called back." Carey's arguments regarding Nash's phone records, even if correct, hardly establish that a call did not take place as Nash described in his testimony. Nash testified that he was unsure whether Simpkins was able to connect him to Carey immediately or whether Carey returned Nash's phone call. 45 ** 46 Furthermore, there are numerous other statements and testimony that establish that Carey approved the contributions. For example, Hamilton stated in a March 1997 interview with an IBT attorney that he discussed the Citizen Action contribution with Carey. Hamilton also stated in an interview with the Election Officer in April 1997 that Carey complained to him in November 1996, shortly after the contributions at issue were made, about the use of funds from the General Treasury. 47 48 Moreover, the testimony of Gregory Mullenholtz ("Mullenholtz"), who was responsible for processing the paperwork for contributions from the IBT's political action committee, establishes that Hamilton told Mullenholtz, at the time the paperwork for the Project Vote and the NCSC contributions were being processed, that Hamilton "had gone to Mr. Carey directly and had gotten [Carey's] approval" for the two contributions. Additionally, Kathleen Marrone, who worked for Carey's Executive Assistant Aaron Belk and who formally initialed the approval of the General President's office on many of the contributions at issue, testified that Simpkins told her that Carey had signed off on the Citizen Action contribution. 49 More importantly, the presence of the initials "RC/ms" on three of the contribution requests (and "ms" on the fourth) provides additional support for the IRB's conclusion that Carey approved the contributions. Carey himself testified that if Simpkins marked his initials on the approval forms for the contributions at issue, then she must have spoken to him about them, even if he did not recall the conversations. Carey also stated at the IRB hearing that her notation (the initials) was what Simpkins would place on a contribution request after she discussed it with him and he approved the request. 50 Finally, the IRB specifically found incredulous Carey's claimed lack of memory regarding whether he had approved the contributions as well as his later denial that he had been presented with or had approved the requests. Carey claimed not to have any recollection of any of the following, all of which occurred within one month: (1) a $500,000 loan to Democrat Republican Independent Voter Education ("DRIVE") (the IBT's Political Action Committee); (2) a $475,000 Citizen Action donation; (3) a $175,000 in Project Vote donations; (4) a $85,000 NCSC donation; (5) a $150,000 contribution to the AFL CIO; and (6) a $73,000 payment authorized for an outside telephone service to make election - related calls. Documents introduced in evidence at the IRB hearing indicated that in four weeks Carey approved all these expenditures totaling $1,458,000 in financial transactions relating to the federal elections. 51 Carey & Hamilton Discipline, 22 F. Supp. 2d at 140-41 (footnotes and trial transcript citations omitted). 52 In his brief to this court, Carey argues that the IRB erred in finding that he had a duty to inquire because that duty would arise only from Nash's supposed comment that the Citizen Action contribution would be good for Carey's fundraising, and such comment was never made. However, as detailed above by the district court, the IRB had a number of reasons aside from Nash's testimony for believing that Carey approved the political contributions without inquiring into their propriety. Moreover, Carey's arguments that the IRB was wrong in crediting Nash's testimony and finding Carey's denials and claims of failed memory incredible are very difficult to sustain given that reviewing courts treat with special deference the IRB's credibility determinations. See Carey Disqualification, 156 F.3d at 365; Cimino, 964 F.2d at 1313. 53 Furthermore, although our decision does not rest on such a holding, we note that even if we found that the IRB's conclusion that Carey approved the political contributions at issue is unsupported by substantial evidence, the IRB justified its decision on alternative grounds. Specifically, the IRB held that the unusually large size of these contributions,8 together with Carey's knowledge that he was in a very difficult race for union president, the precarious state of his campaign funds and need for substantial expenditures, meant that Carey had a fiduciary duty to inquire into these contributions. Other circumstances surrounding the contributions, including Carey's failure to receive and review information his staff provided before making a decision, his failure to return phone calls from his ranking assistant, and his lax procedure for approving such large contributions over the telephone, also suggest that Carey neglected a fiduciary duty of inquiry. 54 Accordingly, we hold that the IRB's decision that Carey breached his fiduciary duty was neither arbitrary nor capricious, and was supported by substantial evidence. 55 2. Was the IRB's decision, that Hamilton knowingly participated in the campaign fundraising scheme, supported by substantial evidence? 56 Hamilton's challenge to the sufficiency of the evidence is evaluated under the same standard previously outlined with regard to Carey's challenge. As the district court stated: 57 The IRB found that "Hamilton knowingly participated in the scheme in which IBT donations were made with the understanding that, in return, donations would be made to benefit the Carey campaign." Specifically, the IRB found that Hamilton spoke with Nash about the scheme, Hamilton agreed to seek approval for the contributions and Hamilton recommended contributions to the groups identified by Davis. Furthermore, the IRB concluded that Hamilton "knowingly used his union position to cause union donations to be made in return for contributions to the Carey campaign." The IRB determined that Hamilton embezzled IBT funds and possessed the "fraudulent intent" to do so. The record amply supports the IRB's determination. 58 For example, Nash testified that he discussed the scheme with Hamilton, that he explained to Hamilton that it would raise money for the Carey campaign, and that Hamilton agreed to participate in the scheme. Nash further testified that he specifically discussed with Hamilton the contributions to Citizen Action, to Project Vote and to the NCSC. In addition, the record includes memoranda that Hamilton drafted requesting that the IBT make each of the contributions Nash and Davis called for. Moreover, Hamilton did not offer an explanation as to how these contributions could have been made without his recommendation. This evidence provides more than ample support for the IRB's findings that Hamilton was a knowing participant in the scheme and that he embezzled IBT funds. 59 Carey & Hamilton Discipline, 22 F. Supp. 2d at 144 (trial transcript citations omitted). 60 This Court agrees with the conclusion of the district court, which is even more convincing when considered in light of additional IRB findings not mentioned in the district court's decision. In particular, the IRB determined that Hamilton's failure to discuss the contributions with his assistant, Bob Nicklas, suggested that Hamilton knew the contributions were illicit and wanted to restrict the flow of information about them. With regard to written evidence, Hamilton's memorandum to Carey in support of a donation to the NCSC stated a different amount and purpose for the donation when compared with the NCSC's request for the donation. This inconsistency, the IRB concluded, suggests that Hamilton knew about the donation from a source other than the NCSC; that source was most likely Nash. Similarly, while Hamilton told the Election Officer's representatives that a Teamster local had requested the first Project Vote contribution, the IRB found that the local had no written record of such a request. This fact supports a conclusion that Hamilton deliberately misled the Election Officer as to the purpose of the contribution. 61 As the district court held, the evidence was more than sufficient to sustain the IRB charges against Hamilton. 62 3. Was Carey or Hamilton denied a "full and fair hearing" before the IRB because they were denied the use of subpoenas to compel testimony and documentary evidence, or was Hamilton denied such because the IRB refused his requests to stay his disciplinary hearing pending the resolution of a criminal investigation against him? 63 Carey and Hamilton argue that the district court's refusal to give them access to its subpoena power deprived them of a full and fair hearing before the IRB, to which they were entitled under section 101(a)(5) of the LMRDA, codified at 29 U.S.C. § 411(a)(5).9 Hamilton adds a claim that his rights under the LMRDA and IBT Constitution were violated by the IRB's refusal to stay his disciplinary case until the resolution of the criminal investigation against him. The district court twice rejected Carey's and Hamilton's arguments that they must be granted the power to subpoena in order to receive a full and fair hearing under LMRDA. See United States v. IBT, 992 F. Supp. 598, 599-600 (S.D.N.Y.1998); Carey & Hamilton Discipline, 22 F. Supp. 2d at 142. We review the district court's determination on this question de novo because it requires us to interpret the meaning of a federal statute. See Dunlop-McCullen v. Local 1-S, AFL-CIO-CLC, 149 F.3d 85, 88 (2d Cir. 1998) (district court application of LMRDA reviewed de novo). 64 The "full and fair hearing" requirement of the LMRDA incorporates the "traditional concepts of due process." SeeKuebler v. Cleveland Lithographers & Photoengravers Union Local 24 P, 473 F.2d 359, 363-64 (6th Cir. 1973). Not all of the due process protections available in the federal courts apply to union disciplinary proceedings. See Wellman v. International Union of Operating Eng'rs, 812 F.2d 1204, 1205 (9th Cir. 1987) ("While we apply traditional due process concepts, we recognize that a union has a significant interest in controlling internal discipline, and so do not require the union's disciplinary proceeding to incorporate the same protections found in criminal proceedings."). Such proceedings need only adhere to the "basic principles of due process." See Mayle v. Laborer's Int'l Union of N. Am. Local 1015, 866 F.2d 144, 146 (6th Cir. 1988); cf. Wildberger v. American Fed'n of Gov't Employees AFL-CIO, 86 F.3d 1188, 1193 (D.C. Cir. 1996) (the LMRDA protects only against a "breach of fundamental fairness"). 65 Neither the IBT Constitution nor the Consent Decree grants IBT members compulsory process rights in disciplinary proceedings. Furthermore, this court has stated that the right to subpoena witness is not "a requirement of a 'full and fair' hearing under section 411(a)(5)(C)." United States v. IBT, No. 91 630, Order at 3 (2d Cir. Mar. 27, 1992) (unpublished) (noting that most union members lack subpoena power in disciplinary hearings and therefore such power cannot be required by the "full and fair hearing" requirement of LMRDA.).10 Other courts have likewise rejected claims of compulsory process in union disciplinary proceedings. See, e.g., Frye v. United Steelworkers of Am., 767 F.2d 1216, 1224 (7th Cir. 1985) (rejecting appeal of union member based on procedural irregularities at disciplinary hearing, stating that "section 101(a)(5)(C) [of LMRDA] does not require that union disciplinary hearings incorporate the specific protections associated with judicial proceedings"), superceded by statute on other grounds as stated in Meyer v. Rigdon, 36 F.3d 1375, 1380 (7th Cir. 1994). 66 Carey and Hamilton recognize that the law does not provide a right to subpoena witnesses in all LMRDA hearings, but assert that in this case such a right was required. They note that they have been under investigation by the joint forces of the U.S. Attorney's Office for the Southern District, two Court-appointed Elections Officers, and the IRB Chief's Investigator. Carey and Hamilton argue that these investigative powers shared information and together possessed such awesome resources that it was necessary for the district court to issue subpoenas on their behalf in order to ensure that they receive a fair hearing. 67 Carey contends that, had he been given subpoena power, he likely could have demonstrated more of Nash's trickery and motives to lie. Specifically, Carey asserts that he could have shown that Nash "was looting the Carey Campaign of hundreds of thousands of dollars." Such evidence would have further disproved Nash's contention that he informed Carey that the contribution to Citizen Action would benefit Carey because, Carey argues, Nash would likely not have alerted Carey to the transaction in which Nash was stealing from his campaign. Carey also surmises that had he been able to compel the testimony of Simpkins, it would have gone a long way towards exonerating him. According to Hamilton, if he had subpoena power and access to November Group documents, as well as the opportunity to confront Martin Davis, he could have proven that he was not a party to the scheme, which he claims was developed to benefit Davis and Nash. 68 While we do not reach the issue of whether a union member subject to a disciplinary proceeding would ever be entitled to subpoena power in order to guarantee his or her statutory right under the LMRDA to a "full and fair hearing," we find in any event that this was not such a case. Although Carey was not permitted to subpoena witnesses, he testified in his own defense and presented other evidence and witnesses to rebut the charges against him. He cross examined witnesses at the IRB hearing,(including Jere Nash, who was forced to come by subpoena from the U.S. Attorney's Office, issued at Carey's request.) Carey was able to challenge the statements of Nash and Simpkins by introducing arguably inconsistent statements of those declarants themselves and by introducing other physical evidence, such as phone records. Indeed, Carey's defense was so effective that he convinced the IRB not to rely on the harmful Simpkins affidavit. Despite vigorous attempts to discredit Nash, Carey was unable to persuade the IRB to disregard his testimony. But that does not mean that under the law we are bound to follow that he was deprived of a full and fair hearing. 69 At the hearing Hamilton did not testify in his own defense, but instead relied on cross-examination, particularly of Jere Nash. It was Nash's testimony which was most harmful to Hamilton, and his counsel was unable to persuade the IRB to disregard it. Although Davis did not testify, Hamilton's counsel had the opportunity to oppose the evidence based on Davis's plea allocution in Davis's criminal case, and Hamilton does not argue that he was prevented from rebutting Davis's statement. As with Carey, we cannot conclude that the lack of subpoena power deprived Hamilton of a full and fair hearing. 70 Hamilton also argues that he did not receive a full and fair hearing before the IRB because he was twice denied a stay of the IRB proceedings. According to Hamilton, two reasons justified a stay. First, the IBT Constitution provides that "no member or officer shall be required to stand trial on charges involving the same set of facts as to which he is facing criminal or civil trial until his final court appeal had been concluded." Constitution and By-laws of the IBT, art. XIX, § 7(a). Second, Hamilton claims that he could not offer a full defense without compromising his Fifth Amendment right against self-incrimination because he was being investigated and was indicted by the United States Attorney. We address these arguments seriatim. 71 A violation of a procedural provision of a union's constitution is actionable only if the violation deprived the party of a full and fair hearing under the LMRDA. See Yager v. Carey, 159 F.3d 638 (D.C. Cir. 1998), aff'g 910 F. Supp. 704, 713 (D.D.C. 1995) ("A court considering a claim for relief under the LMRDA because a party alleges that an internal union disciplinary hearing violated the union's constitution must conduct a two step inquiry: (1) the court must find that the hearing violated the constitution; and (2) it must find that the violation deprived plaintiffs of a fair trial within the meaning of the LMRDA."); Wellman, 812 F.2d at 1206 ("Even assuming a union fails to follow its own rule, it does not violate the LMRDA unless the violation of its internal rule also contravenes specific provisions in the LMRDA."). Hamilton's claim that the denial of his first request for a stay violated the IBT Constitution is meritless because at the time of his request he was not facing any trial. Furthermore, even if the denial was a violation of the IBT's Constitution, Hamilton cannot show that it deprived him of a fair hearing, as he was able to mount a vigorous defense against his accusers. His able counsel strenuously cross-examined witnesses, particularly Nash, and highlighted weaknesses in witnesses' testimony. Furthermore, in finding against Hamilton, the IRB did not rely on any adverse inference drawn from his failure to testify. 72 With regard to Hamilton's second request for a stay, which was made more than a month after the close of the hearings, on the day of his post-trial brief was due, the denial only deprived Hamilton of an alleged right to submit a post-trial brief. At the opening of the hearing, his counsel presented the IRB panel with those arguments that he presumably would have raised in his post-trial brief; thus, the panel was well aware of Hamilton's position and the post-trial brief likely would have been cumulative. As noted above, union proceedings need only adhere to the "basic principles of due process." See Mayle, 866 F.2d at 146. In light of this standard, because Hamilton had an opportunity to present his arguments to the IRB at the hearing, we cannot find his inability to submit a post-trial brief constituted a denial of his right to a full and fair hearing. 73 With respect to Hamilton's argument that the denial of his request for a stay was a violation of his Fifth Amendment rights, the district court stated: 74 This Court has previously ruled that IRB proceedings need not be stayed because of pending criminal proceedings related to the same matter. See United States v. IBT ("Hickey"), 945 F. Supp. 96, 99 (S.D.N.Y.1996) ("Because the Fifth Amendment is unavailable to a union member called to sworn examination before an internal disciplinary body, this Court finds that it does not support Hickey's request to stay the IRB examination...."). Given that one of the principal goals of the Consent Decree is to rid the union of corruption, there were compelling reasons in this case not to allow the pendency of related criminal proceedings to delay IRB disciplinary proceedings. Thus, because the IRB's determination not to stay the proceedings against Hamilton was correct, it did not render the IRB's Decision arbitrary and capricious. 75 Carey & Hamilton Discipline, 22 F. Supp. 2d. at 143.11 76 This ruling is consistent with our caselaw. This court has noted that when a party must choose between testifying in a civil case or maintaining his Fifth Amendment silence: 77 [T]he same dilemma is faced by any witness in a civil or criminal trial who is himself under investigation or indictment for other crimes. Such a witness must either invoke his privilege against self-incrimination, or assume the general duty to give what testimony one is capable of giving. 78 ** 79 We cannot agree that civilized standards of procedure and evidence require that a witness under indictment be given the option of nonappearance in any proceedings in related civil or criminal cases until his own trial is concluded. United States v. Simon, 373 F.2d 649, 653 (2d Cir. 1967) (internal quotation marks and citation omitted), vacated as moot, 389 U.S. 425 (1967); see United States v. Kordel, 397 U.S. 1, 11 (1970) ("It would stultify enforcement of federal law to require a governmental agency... invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial."); Nosik v. Singe, 40 F.3d 592, 596 (2d Cir. 1994) (denying motion for injunction to enjoin state proceedings on ground that testimony at hearings might compromise petitioner's Fifth Amendment right against self-incrimination); see also Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986) (defendant's due process rights were not violated when court refused to stay civil securities trial until after criminal statute of limitations had expired although United States Attorney had decided not to prosecute). Accordingly, Hamilton did not have a due process right to have the IRB's proceedings delayed because of the criminal investigation and his subsequent indictment. 80 Moreover, in this case, the need for the union to proceed with the hearing was particularly urgent because the union was faced with the need to purge itself of corruption at its highest levels. See United States v. IBT ("Yellow Freight"), 948 F.2d 98, 103 (2d Cir. 1991), vacated as moot, 506 U.S. 802 (1992). Requiring the union to delay either its hearing awaiting Hamilton's testimony, or its decision awaiting Hamilton's post-trial brief until criminal proceedings were concluded, could have unduly hampered the union, especially one that had been found to be riddled with corruption for years. In response to this point, Hamilton argues that because he had resigned from the union by the time of the hearing, the union faced no threat from him. However, his resignation did not give the union the same relief it achieved by the IRB's decision and its confirmation by the district court: an enforceable associational and employment ban. 81 In sum, because due process did not require a stay, and because granting a stay would have posed a threat to the union, this court cannot find that Hamilton was denied a full and fair hearing before the IBT. 82 4. Was the IRB arbitrary or capricious in either A) imposing a lifetime ban on Carey and Hamilton from membership or employment with the IBT or B) imposing a lifetime ban on Carey and Hamilton from associating with members of the IBT? 83 We have held "that the reviewing court should not overturn the [IRB]'s choice of sanctions unless it finds the penalty unwarranted in law or without justification in fact." Simpson, 120 F.3d at 348 (internal quotation marks and citation omitted) (alteration in original); see also United States. v. IBT ("Wilson"), 978 F.2d 68, 73 (2d Cir. 1992) ("A court may only consider whether the administrator made an allowable judgment in his or her choice of the remedy") (internal quotation marks and alterations omitted). 84 a. The Lifetime Employment Ban. 85 The IRB imposed the following penalty on Carey and Hamilton, in which each was permanently barred from membership, permanently barred from holding any office or employment relationship with the IBT or its affiliates or otherwise drawing any salary or compensation from any IBT affiliated source. 86 Carey argues that the IRB acted arbitrarily and capriciously by imposing a "grossly disproportionate" sanction, and Hamilton claims to join in those arguments. "Permanent suspension," Carey asserts, "has, almost invariably, been reserved for involvement with organized crime...." Carey argues that permanent suspension "has never, to [his] knowledge, been imposed for negligence, i.e., breaching a fiduciary duty by failing to inquire." However, as demonstrated by some of the cases cited by Carey himself, courts have imposed lifetime suspensions on IBT members for breaching their fiduciary duty by failing to investigate into other members' possible involvement with organized crime. See Carey brief at 45-46 n.13 (citing, inter alia, United States v. IBT ("Application LXXIII of the IA") 803 F. Supp. 740 (S.D.N.Y. 1992)). 87 Contrary to Carey's assertion that the IRB found that his only wrongdoing was "nonfeasance in failing to follow up on a cryptic comment," the IRB determined that Carey committed "serious breaches of trust" that "require severe sanctions." The IRB stated that "[b]y his entire course of conduct, [Carey] abdicated his fiduciary responsibilities." Moreover, the IRB justified the penalty imposed on Carey by finding that "[a]s the top elected official of the IBT, Carey was especially obligated to follow the[ ] rules, particularly as to financial transactions of the size involved here and in light of his constitutional obligation to review expenditures." Caselaw in this circuit supports the IRB's holding that because of Carey's position as the highest union official his misconduct was more serious. See Simpson, 120 F.3d at 349 ("It was well within the IRB's discretion to conclude that, precisely because Simpson was a trusted, high level official in the IBT, his conduct... was more culpable."). 88 With regard to Hamilton, the IRB stated that "Hamilton, as the top administrative official responsible for political contributions, must be held especially accountable." According to the IRB, "Hamilton, in concert with his co-schemers, knowingly used his union position to cause union donations to be made in return for contributions to the Carey Campaign, a non-union reason, thereby bringing reproach upon the IBT." Such an abuse of trust by a powerful administrative official undermines the faith of the public and the IBT members in the ability of the union to conduct its day-to-day affairs in a trustworthy and honest way. Actions which cause such harm are deserving of serious rebuke, both to censure officers such as Hamilton, and to warn other members that such abuse will not be tolerated. 89 At bottom, Hamilton's embezzlement and Carey's breach of his fiduciary duties resulted in the misuse of $735,000 of union funds. As a result of their approval of the contributions to the political advocacy organizations, the 1996 IBT election had to be overturned and the union membership was denied its right to a fair and democratic election. We therefore hold that IRB's decision regarding the choice of sanctions is neither arbitrary nor capricious.12 90 b. The Lifetime Associational Ban. 91 Carey further contends that the associational ban in Paragraph E(10) of the Consent Decree should not be applied to him. Paragraph E(10) of the Consent Decree enjoins IBT officers, representatives, members and employees from "knowingly associating with... any person otherwise enjoined from participating in union affairs...." Carey argues that "[t]he rationale for the associational ban is to protect and insulate IBT officers and members from contact with persons involved in ongoing organized criminal enterprises." Therefore, he asserts, "an associational ban would serve no legitimate purpose and is not necessary to insulate IBT members from exposure to a person found guilty of ongoing corruption or criminal enterprise."13 92 Alternatively, Carey argues that the associational ban applied to him should only prevent professional or business contacts with IBT membership and should not bar him from purely social meetings with the friends he has made over a 40-year career with the Teamsters. 93 Carey has sympathetic arguments that the penalty imposed on him is harsh given his many years of service to the union; nonetheless, the penalty has a basis in the IBT rules and the Consent Decree. The IRB reasonably determined that Carey is to be permanently barred from the IBT and therefore he clearly falls within the scope of Paragraph E(10) of the Consent Decree. 94 Hamilton has adopted Carey's arguments by reference, but has failed to develop them in a fact-specific way. The court will simply note that with respect to the associational ban, Hamilton has had a significantly shorter career with the IBT than Carey, and therefore his argument is less compelling. 95 Based on the facts, we cannot find the associational bans to be arbitrary or capricious. 96 B. Carey's Appeal From the Decision to Deny Him Post-Judgment Relief. 97 As detailed above, after being informed about Nash's guilty pleas admitting his involvement in the rebilling scheme and lying to the government about that activity, Carey sought post-judgment relief. Carey cites Rule 60(b) of the Federal Rules of Civil Procedure as the grounds under which the IRB or district court should have granted him post-judgment relief. Rule 60(b) provides in relevant part: 98 [o]n motion and upon such terms as are just, the court may relieve a party... from a final judgment, order or proceeding for the following reasons:... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);... (6) any other reason justifying relief from the operation of the judgment. 99 Fed. R. Civ. Pro. 60(b). 100 Carey's grounds for relief pressed on appeal allege newly discovered evidence under Rule 60(b)(2) and Rule 60(b)(6)'s catch-all provision.14 Additionally, Carey argues that the IRB's determination, that even absent Nash's testimony there was ample evidence that Carey violated the IBT Constitution and his fiduciary duties, was arbitrary and capricious. 101 Because the IRB used Rule 60(b) as a point of reference in deciding on the motion for post-judgment relief, the district court also examined Rule 60(b) "to assist with its analysis of the IRB's decision under the arbitrary and capricious standard."15 Carey Post-Judgment Motion, 1999 WL 673340, at 3. Denials for relief under Rule 60(b) are reviewed for an abuse of discretion. See Devlin v. Transportation Comm. Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999). A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1994); Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). The burden of proof is on the party seeking relief from judgment, in this case Carey. See Paddington, 34 F.3d at 1142. 102 We note at the outset that Carey's claim for relief under Rule 60(b)(6) is unavailing. Controlling cases have held that if the reasons offered for relief from judgment can be considered in one of the more specific clauses of Rule 60(b), such reasons will not justify relief under Rule 60(b)(6). See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988); Nemaizer, 793 F.2d at 63. Because Carey's claim regarding Nash's alleged perjury is properly considered under Rule 60(b)(2) as newly discovered evidence, Carey's claim under 60(b)(6) was correctly rejected. See Madonna v. United States, 878 F.2d 62, 64 (2d Cir. 1989) (action under Rule 60(b)(2) is properly based on new evidence of fraud or mistake discovered after trial). 103 1. Nash's Alleged Perjury as Newly Discovered Evidence Under Rule 60(b)(2). 104 The party seeking relief from judgment has an onerous standard to meet. District courts in this circuit have characterized the test in the following manner: 105 [T]he movant must demonstrate that (1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching. 106 United States v. IBT, 179 F.R.D. 444, 447 (S.D.N.Y. 1998) (alteration in original) (quoting Frankel v. ICD Holdings S.A., 939 F. Supp. 1124, 1127 (S.D.N.Y. 1996)). 107 Carey's objection to the IRB's Supplemental Decision is basically that the new evidence demonstrates that Nash committed perjury before the IRB and therefore that the IRB's prior decision, which heavily relied on Nash's testimony, must be reversed. Carey points to three transcript excerpts from Nash's testimony before the IRB that he alleges prove that Nash committed perjury during the IRB hearing, and one other place where he asserts that Nash violated his oath to tell the whole truth. After addressing the claimed instances of Nash's perjury, we will review Carey's arguments that evidence of the alleged perjury was "of such importance that it probably would have changed the outcome." IBT, 179 F.R.D. at 447 (citation omitted). 108 The first instance in which Carey alleges that Nash perjured himself during the IRB hearing was when Nash denied that he hid details from Carey because he did not want the IBT General President to know about them. During the IRB hearing Nash was asked the following questions and provided the following responses: 109 Q: Is it fair to say that during the course of this campaign there were a great number of details that you attended to that you did not share with Mr. Carey? 110 A: Yes, sir. 111 Q: And some of them you didn't share because they were in your area of responsibility rather than his? 112 A: Yes, sir. 113 Q: And some of them you didn't share because they might have concerned matters that Mr. Carey wasn't interested in? 114 A: Same thing. 115 Q: And is it fair to say that there were some details you didn't share with Mr. Carey because you didn't want him to know about them? 116 A: I can't think of a one. 117 Carey asserts that because Nash did not discuss the rebilling scheme in response to the last question, Nash committed perjury before the IRB. Carey argues that, although Nash's answer is framed as an absence of recollection, the chronology reveals that the rebilling scheme was fresh in his mind and thus his claims of no memory are outright perjury. Specifically, Carey notes that Nash had been confronted by the government with questions abut the false invoices within a week before of his testimony before the IRB. 118 While the timing suggests that Nash should have remembered the rebilling scheme, it is very difficult to conclude this testimony was perjurious, as such a finding hinges on establishing definitively Nash's motives for keeping the rebilling scheme from Carey. As the district court pointed out, Nash might have not shared the rebilling scheme with Carey for reasons other than a desire to keep it from him. Carey Post-Judgment Motion, 1999 WL 673340, at 5. Under the IBT's fund approval process, there was no requirement for Nash to contact Carey regarding the payment of the three relatively minor invoices because expenditures of that size did not need Carey's approval. Id. 119 The second instance in which Carey alleges that Nash perjured himself during the IRB hearing was during the following colloquy: 120 Q: What else was there, that you are aware of, that reflected benefit to Davis out of these transactions that we have been inquiring into? 121 A: All that I am aware of I have learned since Martin Davis's arrest and that is what I was referring to, because of the illegal conduct he did, he made money through those -- through that illegal conduct, none of which I knew and would not have approved of. 122 Carey argues that this answer was perjurious because Nash knew that Davis was involved in the rebilling scheme with Nash himself. The IRB concluded that Carey's argument "assume[s] erroneously that the question asked referred to the rebilling scheme." The IRB explained that it believed that the question "concerning the benefit to Davis 'out of these transactions' obviously referr[ed] to the four advocacy group contributions by the IBT and not any transaction the Carey Campaign may have directly engaged in."16 Carey responds by arguing that the question was not limited, that it was a broad based question. Even more importantly, Carey argues, Nash's answer was extremely broad in asserting that he would not have approved of any illegal conduct by Martin Davis. 123 While the rebilling scheme assisted the Carey campaign by having the IBT pay expenses the campaign itself should have paid, it is not obvious how Davis benefitted -- and the relevant question asked for instances in which Davis benefitted. Carey's brief argues that Davis, as an owner of the November Group, benefitted by having the November Group's bills paid promptly by the IBT because the Carey campaign might not have been able to pay those bills. 124 The third instance where Carey alleges that Nash perjured himself during the IRB hearing concerned Nash's prior truthfulness with the government. During the IRB hearing Nash was asked the following questions, to which he provided the following responses: 125 Q: Now, when did you first meet with the government at all in connection with this case? 126 A: In connection with this particular hearing or in connection with my meeting with the government? Q: Since you began cooperating. 127 A: End of May, early June. 128 Q: Did you meet with the government before your plea or after your plea? 129 A: Before my plea. 130 Q: How long before your plea? 131 A: I think the plea was in September. 132 Q: Were you debriefed--was there a lengthy discussion in which they asked you questions and you gave them answers? 133 A: Several. 134 Q: Did you answer their questions truthfully? A: Yes, sir. 135 Carey contends that because Nash admitted to making false statements to the government about the rebilling scheme after his September 1997 guilty plea, he committed perjury when he testified that he truthfully answered the government's questions prior to his September 1997 guilty plea. Furthermore, according to Carey, Nash's admission that he concealed and falsely denied his role in the rebilling scheme to the government demonstrated that he lied when he testified that when he agreed to come in June 1997 and began to cooperate, "I told [the government] everything I knew." 136 The IRB rejected this argument, finding that "Nash's testimony... that he answered questions asked of him by the government before his September 1997 guilty plea [record cite and footnote omitted] could not be perjury when it is considered that at that time the [g]overnment had not asked him any questions which would implicate the three invoices involved in the rebilling scheme." This finding by the IRB is supported by the fact that the criminal information to which Nash plead guilty alleges that Nash was first asked (and first lied) about the billing scheme in March of 1998. 137 Carey responds by arguing that the IRB and district court decisions rely almost completely on the testimony of Nash himself, a witness twice convicted of lying to the government about the circumstances of this very case. Carey asserts that Nash would do or say anything to keep the government's case against Carey from unraveling, because Nash needs help from the government in the form of an application for a downward departure in sentencing. We agree with Carey that there are serious questions about Nash's credibility in this case, but reiterate that this court is required to review the IRB's factual and credibility findings based on a very deferential standard. See Cimino, 964 F.2d at 1313. This is especially true given that we are reviewing the denial of a motion for post-judgment relief. See United States v. Johnson, 327 U.S. 106, 111-12 (1946) (it is not the province of appellate courts to review decisions of the district court for new trials based on claims of factual errors); United States v. Polisi, 416 F.2d 573, 576 (2d Cir. 1969) (same). 138 In his final claim regarding Nash's untruthful testimony, Carey asserts that "Nash repeatedly vouched for his own truthfulness when he was questioned about his motivation to inculpate Mr. Carey to obtain a downward departure motion." While conceding that Nash's insistence that he was at the IRB hearing to tell the truth did not contain a "specific statement" that is "in so many words a demonstrable lie," Carey still argues that this Court should treat Nash's vouching as another lie.17 Overall, the IRB concluded that "the answers of Nash to the questions in the record before [the IRB] concerning contributions to the advocacy groups in October and early November 1996 cannot, as a matter of fact, be understood to include the three campaign invoices probably paid in September of 1996." Thus, the IRB determined that none of the portions of Nash's testimony on which Carey relies "has been shown to be perjury." The district court agreed with the IRB's assessment. Carey Post-Judgment Motion, 1999 WL 673340, at 7. 139 Whatever can be said for the view that Nash's testimony to the IRB constituted perjury, in a difficult case such as this one, we are reluctant to disturb the factual and credibility findings of the IRB. Even assuming arguendo that we were to find that Nash's statements constituted perjury, the result in the case would be the same because Carey cannot establish that any of the perjurious statements are sufficiently material to the IRB's underlying decision. 140 The IRB itself determined that, even if they constituted perjury, Nash's statements were "not material to the issues before [the IRB]." The IRB noted that "[h]ad the testimony about the rebilling scheme [and Nash's role] been offered, it would only have been considered as impeaching Nash's credibility." The IRB found that the evidence of the rebilling scheme was not of "'such importance' to the issue of the involvement of Carey in the contributions to the advocacy groups that it would have altered our conclusions regarding Carey's breach of fiduciary duty." 141 Carey urges that the IRB erred in finding that the allegations regarding Nash's testimony were "merely cumulative or impeaching" and did not warrant relief. Carey recognizes that, ordinarily, newly discovered evidence that merely goes to impeachment of a witness is not grounds for a new trial. However, Carey argues that in this situation, where the testimony of Nash was crucial to the outcome of Carey's hearing and the IRB's decision to credit Nash's testimony is called into question by this newly discovered evidence, the IRB must consider the effect of the new evidence on Nash's credibility, even if cumulative. 142 In support of this argument, Carey cites criminal cases where courts have granted post-conviction relief based on information that key witnesses against the defendants had perjured themselves. In United States v. Wallach, the government acknowledged that one of its key witnesses committed perjury during the criminal trial. 935 F.2d 445, 455 (2d Cir. 1991). This court reversed the convictions and remanded for a new trial, finding that "as a matter of law that had the jury had been aware of [the] perjury it probably would have acquitted the defendants." Id. at 458-59. In another criminal case cited by Carey, Alvarez v. United States, the district court ordered a new trial finding that, in light of substantial new evidence which cast doubt on the veracity of a key witness, "a jury would probably acquit the defendant of the crimes for which he was convicted." 808 F. Supp. 1066, 1096 (S.D.N.Y. 1992). Carey also relies on the Seventh Circuit's decision in United States v. Taglia, 922 F.2d 413 (7th Cir.), cert. denied, 500 U.S. 927 (1991). In that case the Court explained that "[i]f the government's case rested entirely on the uncorroborated testimony of a single witness who was discovered after trial to be utterly unworthy of being believed... the district judge would have the power to grant a new trial in order to prevent an innocent person from being convicted." Id. at 415. Carey likens his appeal to these criminal cases. He argues that the IRB erred in not granting relief based on the new impeachment evidence because Nash's testimony provided "the only supposed information which would have given Carey a reason to suspect impropriety within his campaign" and because the evidence "utterly destroy[s]" Nash's credibility. 143 However, Carey's argument overlooks one key fact about the present case. Unlike the criminal cases he cites in which the court had to vacate the convictions and remand for new trials in order to allow the trier of fact to consider the new evidence regarding the diminished credibility of the witness, here the trier of fact (the IRB) reconsidered the matter with full knowledge of Nash's new convictions for fraud and for lying to the government. After deliberation of the case in light of the new evidence regarding Nash's credibility, the IRB specifically affirmed its earlier decision. Thus, assuming without deciding18 that the standard announced by the Seventh Circuit in Taglia applies to motions for post-judgment relief in civil cases, the outcome would be the same because IRB held that there was sufficient evidence apart from Nash's testimony to support its finding that Carey breached his fiduciary duty. 144 Carey's brief repeatedly asserts that Nash's testimony provides the only evidence against him. This argument, also made in his other appeal, ignores the extensive record and the findings of the IRB. Nash's testimony hardly provides the only evidence against Carey. Indeed, the IRB specifically held that the evidence before it, even excluding Nash's testimony, was sufficient to conclude that Carey breached his fiduciary duty and should be expelled from the union. The IRB stated: 145 [T]he disclosure of Nash's perjury as to the September 1996 rebilling scheme would not have altered our Decision. Nash's testimony concerning his telephone call, apparently on October 17, 1996, with Carey provided only one of several bases for our conclusion that Carey's fiduciary duties required him, under the circumstances, to inquire further concerning the relationship between the contributions to the advocacy groups and his own campaign fundraising. The other bases for reaching that conclusion are themselves sufficient to support our findings. 146 (emphasis added). 147 We have already detailed the other evidence supporting the IRB's determination that Carey breached his fiduciary duty. Carey's arguments contesting these findings have likewise already been addressed; they do not differ substantially in this appeal as opposed to the prior one. 148 Applying a deferential standard of review as we are required to do, we have considered Carey's and Hamilton's remaining arguments and have found them to be without merit.19 V. CONCLUSION 149 We recognize the irony, indeed the poignancy, of this case in which a union leader, long pledged to internal reform, should be held accountable for corrupt practices. But the law requires no less. Union democracy, after all, is premised on fair elections. To that end, union officials, such as Carey and Hamilton, have a duty to ensure the integrity of that process and to fulfill their obligations to union members by adhering to the highest standards of governance. NOTES: 1 Although the IRB and the district court treated the sanctions against Carey and Hamilton as one case, each appealed to this court independently, and their appeals were heard separately on the same day. See Case Nos. 98-6262 (Carey), 98-6232 (Hamilton). In addition, Carey filed a separate appeal from the decision to deny him post-judgment relief. See No. 99-6266. Mr. Carey's two appeals were heard in tandem. For reasons of judicial economy and because the facts relating to all three appeals are inextricably intertwined, we address all three appeals together in this opinion. 2 Board members in the instant case were William H. Webster, Grant Crandall, and Frederick B. Lacey. 3 We note that Hamilton was convicted of these criminal charges relating to the fund-raising scandal. His appeals from that conviction, Case Nos. 00-1228, 00-1318, were heard by a panel of this court on January 3, 2001. By unpublished decision, we rejected his appeals and affirmed the conviction. See United States v. Hamilton, 2001 WL 50135 (2d Cir. Jan. 22, 2001) (unpublished decision). 4 Apparently Hamilton also filed a motion for relief from judgment based on the new evidence concerning Nash's crimes. The IRB and the district court rejected Hamilton's motion along with Carey's. However, unlike Carey, Hamilton did not appeal from the decision to deny him relief from judgment. 5 The Administrative Procedures Act requires a reviewing court to 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...; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. * * 5 U.S.C. § 706(2). 6 Honorable Frederick B. Lacey of the IRB, in his concurring opinion, stated that "unlike my colleagues, I find that Carey did know that the contributions were to result in a benefit to his campaign fundraising." 7 Trying to reconcile testimony suggesting he did indeed know of such contributions, Carey's brief states that he "knew generally of the contributions" but "had no reason to inquire into their purpose, because he believed them to be proper pursuant to the Union's budgeted plan for political action in the 1996 national elections." 8 While Carey argues that the unusual size of the contributions was not striking because the IBT made a conscious decision to be more involved in political races in 1996, the government's brief ably points the unusual coincidence that the only very large contributions that were made by the IBT were those that benefitted Carey's campaign. 9 The relevant part of the statute states: No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. 29 U.S.C. § 411(a)(5) 10 The district court's previous opinion denying Carey subpoena power also noted that Carey's argument is "contrary to the well established notion that reliable hearsay is admissible in a disciplinary hearing under the Consent Decree, and may alone provide the basis for disciplinary action." 992 F. Supp. at 600 n.3 (citing DiGirlamo, 19 F.3d at 823-24). 11 The district court did not address Hamilton's argument that the denial of his requests for a stay violated the IBT Constitution because such argument is raised for the first time on appeal. 12 The district court agreed with the penalty imposed, stating: "There has been no case since the implementation of the Consent Decree in which the wrongdoing resulted in as much harm to the IBT and its members and so directly undermined a central provision of the Consent Decree an honest and fair general election as was done here." Carey & Hamilton Discipline, 22 F. Supp. 2d at 143. 13 The district court rejected this argument, stating: Contrary to Carey's claim, the associational ban also serves to protect IBT officers and members from people of dubious character. The true test of one's character is what one does when one believes nobody is watching. Both Carey and Hamilton, through their conduct during the 1996 IBT election have exhibited shoddy characteristics to this Court. Paragraph E(10) provides no exceptions based on the stated reasons for the permanent bar, and this Court finds no basis to grant Carey or Hamilton exceptional treatment. Carey & Hamilton Discipline, 22 F. Supp. 2d at 145 (footnote omitted). 14 Although Carey argued for relief under Rule 60(b)(3) (alleged fraud by an adverse party) before the IRB and the district court, he does not renew such argument before this court. 15 As the district court and the IRB noted, the Federal Rules of Civil Procedure do not apply to proceedings before the IRB. Carey Post-Judgment Motion, 1999 WL 673340, at 3. However, the IRB used the standards articulated in Rule 60(b) to assist with its analysis of Carey's application. The district court followed that lead. Id. 16 The district court likewise found "that neither the question nor the answer had anything to do with the rebilling scheme, and therefore, was not perjurious." Carey Post-Judgment Motion, 1999 WL 673340, at 6. 17 The district court stated that: A review of the portion of the transcript that Carey and Hamilton cite in support of this claim, however, reveals that Nash was questioned regarding his understanding of the requirements of his plea agreement. [trial transcript omitted]. Nash testified about his obligations under the plea agreement, including his responsibility to tell the truth. Nash did not "vouch for his own truthfulness." Thus, this Court finds Carey's and Hamilton's argument to be without merit. Carey Post-Judgment Motion, 1999 WL 673340, at *7. 18 The question is the precise standard of proof required for Carey to succeed in his motion for post-judgment relief. While the IRB cited the standard adopted by district courts in dealing with Rule 60(b) motions based on alleged perjury, see United States v. IBT, 179 F.R.D. 444, 447 (S.D.N.Y. 1998), both Carey and the district court note the criminal caselaw in which a convicted defendant later appeals on the grounds that perjured testimony was offered against him or her. In such criminal cases we have held that "[w]here the newly discovered evidence is the existence of allegedly perjured testimony, the defendant must first demonstrate that perjury was in fact committed." United States v. Torres, 128 F.3d 38, 49 (2d Cir. 1997), cert. denied, 523 U.S. 1065 (1998). Where perjury is established, the court must then consider the materiality of the perjury and its likely affect on the verdict had the evidence been made known to the trier of fact. See United States v. White, 972 F.2d 16, 20 (2d Cir.), cert. denied, 506 U.S. 1026 (1992). The level of materiality required by the movant depends on whether the prosecution knew or should have known of the perjury. See Torres, 128 F.3d at 49; White, 972 F.2d at 21. It is not entirely clear whether the standards set forth in the criminal cases are as exacting on the movant as that adopted by district courts in civil cases discussed infra. We decline to address the precise standard required of Carey's Rule 60(b) motion, because, under either of the possible standards, Nash's alleged perjury is insufficiently material to require reversing the decision of the district court. See White, 972 F.2d at 22 (declining to decide the level of materiality required for evidence of perjury to require a reversal of a conviction, because under either standard the decision would be the same). 19 Because we do not find that the case should be remanded to the IRB for further proceedings, we do not reach the merits of Carey's contention that on remand the case must be assigned to a different panel of the IRB.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7101 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DADRIAN NEKEITH ROMAN, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:98-cr-00282-11; 5:06-cv-00049) Submitted: September 27, 2006 Decided: October 16, 2006 Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Dadrian Nekeith Roman, Appellant Pro Se. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Dadrian Nekeith Roman seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2000) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Roman has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 -
74 Md. App. 472 (1988) 538 A.2d 779 THERESA MARCIANNA LAWRENCE, INDIVIDUALLY, ETC. v. EDWIN LAWRENCE, JR. No. 1041 September Term, 1987. Court of Special Appeals of Maryland. March 8, 1988. J. Michael McLaughlin, Jr., Towson, for appellant. Thomas C. Ries (Frank, Bernstein, Conaway & Goldman, on the brief), Baltimore, for appellee. Argued before WILNER, KARWACKI and POLLITT, JJ. KARWACKI, Judge. Theresa Marcianna Lawrence, the appellant, filed a petition on June 14, 1985, asking the Circuit Court for Baltimore County to change her surname from that of her former husband, Lawrence, to her maiden name, Earhardt. In the same petition she requested that the surnames of the parties' two minor children be changed to a hyphenated name, Earhardt-Lawrence. Appellee, Edwin Lawrence, Jr., opposed the change of his children's surnames, although he offered no objection to Mrs. Lawrence's resuming her maiden name. A hearing on the petition was held on March 16, 1987, before Judge A. Owen Hennegan. In a memorandum opinion and order filed on March 30, 1987, the court granted the request for appellant's name change but declined to change the children's surname, concluding that it would not be in their best interest. Appellant filed a timely appeal and asks this Court: I. Did the court abuse its discretion in refusing to permit appellant to change the name of the parties' minor children to reflect the surnames of both parents. II. Did the court abuse its discretion in refusing to permit appellant to call the parties' minor children as witnesses. I. The parties were married in November of 1972. Their children, Jennifer Lynn and Jessica Anne, were respectively five years old and three years old when appellant and appellee were divorced in July, 1980. Both children were given their father's surname at birth and have used it since. Appellant adopted appellee's surname at the time of their marriage and used it consistently until her petition to resume her maiden name was granted in the instant case. At the time of her divorce from appellee, appellant was granted custody of their children with the right of reasonable visitation reserved to the appellee. Appellee has diligently paid his contribution to the support of his daughters, which was ordered at the time of the divorce. Additionally, he has complied with the separation agreement he made with appellant at that time by paying one-half of the cost of his daughters' private school education and in assuming any uninsured medical expenses of his children. Appellee testified that he spoke with his children by telephone every other day and visited them approximately once a month. He explained that he remarried in 1981 and lives with his present wife, their infant son, and her teenaged son in a small two bedroom home which makes overnight visits to his home by his daughters impractical. Moreover, his weekday work hours extend from 8:30 a.m. until midnight in his pursuit of two full time jobs. The parties' daughters have been known by the name of Lawrence all of their lives by their friends, neighbors, and teachers. Their medical and school records are in that name. Also, the children frequently enjoy the company of their paternal grandparents with whom they share the surname Lawrence. Although the children do have some relatives who bear the name Earhardt, appellant did not know where those persons resided and the children have never known them. Appellant contends that the court abused its discretion in denying her petition to change the name of her children to a hyphenated form reflecting both parents' surnames, because as the custodian of the children, their care is principally committed to her. Moreover, she asserts that Article 46 of the Declaration of Rights of the Constitution of Maryland[1] guarantees her the right to have her heritage reflected in the childrens' surname, citing Lassiter-Geers v. Reichenbach, 303 Md. 88, 492 A.2d 303 (1985). Her reliance on that case is misplaced. In Lassiter-Geers, the Court of Appeals was presented with a dispute between parents who could not agree on the initial surname to be given their child. Those parents had not learned of the wife's pregnancy until after they had separated. When the child was born, the wife, without consulting her husband, gave the child her maiden name of Lassiter as a surname. The husband learned of this seven months later and raised the issue of the propriety of this unilateral decision by his wife in the proceedings which resulted in their absolute divorce. At the time the divorce decree was entered, the court reserved the issue concerning the surname of the child of the parties for future determination. Two years later, the father of the child filed a petition in the divorce proceedings praying that the court order the child's surname to be that of the father. After a hearing, the trial court determined that it was in the best interests of the child for her to have the surname of the father. In affirming that decision, the Court pointed out that this was not a dispute over whether a child's surname should be changed from the one her parents jointly chose for her initially. Rather, because the parents had never agreed upon their child's surname, she never had been given one. The Court then held that where parents fail to agree on the surname which their child should bear, a court called upon to resolve their dispute should do so upon the basis of the best interest of the child. The Lassiter-Geers Court assumed without deciding that in making the decision based upon the child's best interest the court, after the adoption of Article 46 of the Declaration of Rights, was prohibited from relying on any "right which a father had by prior custom or law to have a child bear his surname." Id. at 94, 492 A.2d 303. The Court then went on to decide that the trial judge had not abused his discretion in giving the child the father's surname. In doing so, the Court approved the application of the best interest test by the trial judge, who had reasoned that if the child were given the surname Lassiter, she likely would be confused and embarrassed when questioned as to why, since the male head of her household used the surname Geers and her mother used the surname Lassiter-Geers, her name was Lassiter. Unlike Lassiter-Geers, the case sub judice presents an attempt to change the surname of children from the one they have used since birth. The seminal case in this State dealing with that issue is West v. Wright, 263 Md. 297, 283 A.2d 401 (1971). In West, the mother of two sons petitioned to change their surname from that of their father to that of her present husband. The father of the children objected. The parties were divorced 10 years previously, at which time custody of their sons was granted to the mother. The father had remarried and lived 300 miles from the mother and his sons. Because of this and, additionally, because he worked six days a week and lived in a small house which could not accommodate them, the father was only able to spend two or three days a year with his sons. Despite the lack of frequent visits, however, the father had faithfully contributed to his sons' support and had maintained contact with them by sending them presents on their birthdays and at Christmas. In reviewing the trial court's order granting the name change, the Court of Appeals emphasized that any change of surname of a minor child should only be made where compelling reasons therefor have been demonstrated. What constitutes such circumstances must be decided on an individual case basis with the court's focus being on the child's best interest. The Court emphasized that the father in West had not been guilty of any misconduct which might make the continued use of his surname by his children shameful or disgraceful, nor had the father willfully abandoned or surrendered the natural ties between himself and his children. When dealing with the change of a child's surname, courts from other jurisdictions agree that the proponent of the change bears the burden of demonstrating that the name change promotes the best interest of the child. E.g., Application of Saxon, 309 N.W.2d 298 (Minn. 1981), rejecting a change of the surname of seven and nine year old children from that of father to a hyphenated name reflecting mother's maiden surname which she resumed after her divorce and the surname of father; Burke v. Hammonds, 586 S.W.2d 307 (Ky.App. 1979); Wearn v. Wray, 139 Ga. App. 363, 228 S.E.2d 385 (1976); Laks v. Laks, 25 Ariz. App. 58, 540 P.2d 1277 (1975). In the instant case, Judge Hennegan analyzed the evidence before him with a proper view to what was in the best interest of the children. They had used their present surname for 11 1/2 years and 9 1/2 years, respectively. Their father had diligently and fairly contributed to their support since his divorce from their mother. He had maintained his natural ties with his daughters, notwithstanding the constraints of his current financial status. Finally, there was no suggestion of any misconduct on the part of the father which would cause embarrassment to his daughters in the use of his surname. The only problem that the mother contemplated in the children's continued use of their present surname was the possibility that she would have to explain to others the difference between her resumed maiden surname and their surname. As in West v. Wright, supra, [263 Md.] at 302-03, 283 A.2d 401, we believe that any such potential embarrassment to the children's custodial parent "is clearly outweighed by the desirability of maintaining some bond" between the noncustodial parent and his children. This being the case, and there being no indication that any preference was accorded the father based upon his sex, we hold that the trial judge did not abuse his discretion in declining to change the surname of the children. II. Contending that the court abused its discretion in refusing to hear from the parties' minor children on the proposed change of their surname, appellant alleges that she had an agreement with the court that the children would remain in school "unless and until it was decided they would be called." This "agreement" is not evident from the record. On cross-examination, appellee stated that on an earlier occasion, when the name change proceedings were halted, the girls "were very glad" that their names were not going to be changed. Appellant then requested the court to interview the girls as to their preference. The children were not present in court, and the court refused to delay the proceedings until they could be brought from school and produced before the court. This court addressed the question of the extent to which a minor child's wishes with regard to a proposed change of his or her surname should be considered in Hall v. Hall, 30 Md. App. 214, 226-27, 351 A.2d 917 (1976). We concluded that the same weight should be given in a name change determination as that to be given in a custody proceeding; that is, the preference of an "intelligent child who has reached the age of reason" should be considered but is not controlling. Hall v. Hall, 30 Md. App. at 214, 351 A.2d 917. In disputed custody cases it is well-settled that the court has the discretion both as to whether to consult the child and, if so, as to the weight to be given his or her preference as to a custodian. Wilhelm v. Wilhelm, 214 Md. 80, 84, 133 A.2d 423 (1957); Ross v. Pick, 199 Md. 341, 353, 86 A.2d 463 (1952); Young v. Weaver, 185 Md. 328, 334, 44 A.2d 748 (1945); Roberts v. Roberts, 35 Md. App. 497, 508-09, 371 A.2d 689 (1977). The Court of Appeals has stated that the purpose of consulting the child's preference as to a custodian is not because of the child's "legal right to decide the question of custody," but to assist the court in its exercise of discretion. Ross v. Pick, supra, [199 Md.] at 353, 86 A.2d 463. As to the circumstances of the instant case, appellant's failure to have the children present at the time of trial required the court to grant a continuance if it was to interview the children. The grant or denial of a continuance is in the discretion of the trial court and, unless arbitrary, its action in this respect will not be disturbed on appeal. Greenstein v. Meister, 279 Md. 275, 294, 368 A.2d 451 (1977); Butkus v. McClendon, 259 Md. 170, 173, 269 A.2d 427 (1970); Reaser v. Reaser, 62 Md. App. 643, 648, 490 A.2d 1315 (1985). In his memorandum opinion, the trial judge did not indicate that his decision to deny the requested change of the children's surname was based on appellee's testimony on cross-examination as to the preference his daughters had expressed on an earlier occasion. We perceive no abuse of discretion by the trial judge in declining to continue the proceedings for the purpose of interviewing the children as to their preference of a surname. JUDGMENT AFFIRMED; COSTS TO BE PAID BY THE APPELLANT. NOTES [1] Maryland's "Equal Rights Amendment", Article 46, provides: "Equality of rights under the law shall not be abridged or denied because of sex." This Article was ratified by the electorate at the general election held on November 7, 1972.
726 F.2d 548 UNITED STATES of America, Plaintiff-Appellee,v.Elliott VAN BRANDY, Gardie Shine, and Charles Patterson,Defendants-Appellants. Nos. 83-5082 to 83-5084. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 7, 1983.Decided Feb. 22, 1984. 1 Mitchell D. Dembin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. 2 Paul H. Duvall, Jenkins & Perry, Frank M. Murphy, III, Judy Clarke, San Diego, Cal., for defendants-appellants. 3 Appeal from the United States District Court for the Southern District of California. 4 Before BROWNING and NORRIS, Circuit Judges, and SCHNACKE, District Judge.* SCHNACKE, District Judge: 5 (1) Introduction: Van Brandy and Shine each appeals from a judgment convicting him of conspiracy to commit robbery and of attempted bank robbery. Patterson appeals from a judgment convicting him of aiding and abetting attempted bank robbery. The three judgments were entered after a jury trial. Appellants have, between them presented three contentions on appeal: (a) that their trial was not commenced within the maximum time allowable under the Speedy Trial Act (all three appellants raise this issue); (b) that the trial court erred in not compelling the government to produce an informant file maintained by the Federal Bureau of Investigation (only Van Brandy and Patterson raise this issue); and (c) that Patterson's conviction for aiding and abetting attempted bank robbery was fatally inconsistent with his acquittal on a conspiracy to commit bank robbery charge (Patterson's contention alone). None of these contentions is meritorious. 6 (2) Speedy Trial Act: The Speedy Trial Act [18 U.S.C. Secs. 3161 et seq., hereinafter "Act" or "Sec. 3161"] requires that the trial of a defendant shall commence within 70 days from the filing of the indictment [Sec. 3161(c)(1) ], unless expanded by the addition of "excludable time" [Sec. 3161(h) ]. 7 Appellants claim that, even allowing for excludable time, the appellants were not brought to trial within the 70-day period. The government contends that the total excludable time brings the December 14, 1982 trial date within the 70-day period. 8 All parties are agreed that the speedy trial clock began to run on August 26, 1982, the day after the filing of the indictments in this case, and that by December 6, 1982--the day appellants moved to dismiss the indictment for violation of the Act--103 days had passed. By December 14, the trial date, 111 days had passed. It is undisputed that the 30 days between October 7 and November 5 (inclusive) are excludable, and that the 5 days between December 6 and 10 (inclusive) are excludable due to delay resulting from consideration of defendants' speedy trial motions [see United States v. Bolden, 700 F.2d 102, 103 (2nd Cir.1983) ]. Subtracting these 35 days from the 111-day total gives the result that the December 14 trial date was 76 days from the indictment, 6 days after the speedy trial deadline, unless other time was excludable. 9 The trial judge determined that the time from November 1, when appellant Patterson renewed a previously withdrawn motion to suppress, until December 14, when the motion was decided, was excludable by virtue of Sec. 3161(h)(1)(F) which reads: 10 (h) The following periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence: 11 (1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to-- 12 (F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion. 13 Appellants concede that the motion was pending during the period November 1 to December 14, but contend that, because the trial judge deferred hearing and ruling on the motion until time of trial, no "delay" resulted from the pendency of the motion. 14 This contention has been rejected in each circuit in which it has been raised. In United States v. Cobb, 697 F.2d 38, 43-46 (2nd Cir.1982), after an exhaustive analysis of the excludable time provisions of the Speedy Trial Act, their purpose and legislative history, the Court concluded, at page 46: 15 "We reject [an] ... analysis which would require that to be excludable under (F) a particular pretrial motion must have caused an actual delay in the commencement of the trial. We accept, instead, the government's view that a pretrial motion triggers an automatic exclusion, with the qualification, however, that the amount of time eligible for exclusion may not be extended by postponing the hearing date or other disposition of the motion beyond what is reasonably necessary for processing the motion." 16 There is no suggestion here that the hearing date, continued with the consent of all parties, was unreasonably delayed. 17 The Eleventh and the Eighth Circuits are in accord. [United States v. Stafford, 697 F.2d 1368, 1371 (11th Cir.1983); United States v. Brim, 630 F.2d 1307, 1312-1313 (8th Cir.1980) ]. 18 While only Patterson had a motion pending during the critical period, any delay attributable to him is equally attributable to all co-defendants [18 U.S.C. Sec. 3161(h)(7); United States v. Davis, 679 F.2d 845, 849-50 (11th Cir.1982) ]. 19 The trial judge correctly decided that the trial commenced within the maximum time allowable under the Speedy Trial Act. 20 (3) Non-disclosure of Informant File: Appellants Van Brandy and Patterson claim that the government violated their due process rights by not releasing "Brady" evidence favorable to them and material to their guilt or punishment [citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963) ]. The evidence sought was the FBI's file on Blevins, an informant, which, it was claimed, "may contain exculpatory facts such as whether the government promised Blevins immunity from future prosecution for his information". The government gave appellants summaries of the information contained in informant's file, but appellants claim that even the FBI agent in charge of the summaries admitted these summaries were not complete. Appellants contend that this information was material in that it "might have affected the outcome of the trial" [United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976) ]. 21 The Brady right to access to evidence, favorable to a defendant, and in the prosecution's possession, does not extend to an unfettered access to the files. In order to prove a violation of constitutional due process, defendant must make a showing that: (a) the non-disclosed evidence is material, (b) its content is favorable to defendant, and (c) that such exculpatory evidence has not been included in any report provided to the defendant [United States v. Griffin, 659 F.2d 932, 939 (9th Cir.1981) ]. 22 Here, appellants' showing of materiality and favorable content is marginal. Furthermore, the government did disclose to appellants: (a) the prior convictions of informant; (b) payments by the FBI of $4480 to the informant; (c) confessions of the informant to various armed robberies for which he has yet to be tried; (d) grand jury indictments on two counts of armed robbery in Louisiana; and (e) that the government had made no promises to or deals with informant regarding charges in "c" and "d" above. All of this was explored on Blevins' cross-examination before the court, as were Blevins' admissions of drug usage and statements about prison terms served for convictions of crimes in "a" above. In light of these disclosures, it cannot be said that the "non-disclosed evidence creates a reasonable doubt that otherwise failed to exist" [Griffin, supra ]. 23 The government, where doubt exists as to the usefulness of evidence, should resolve such doubts in favor of full disclosure [Agurs, supra ], but its failure to do so must raise a reasonable possibility that it materially affected the verdict before it becomes significant [United States v. Goldberg, 582 F.2d 483, 489 (9th Cir.1978) ]. This is not here the case. Blevins, the informant, was exhaustively cross-examined; his creditability was thoroughly questioned. Furthermore, the evidence, independent of the informant's information, was very strong against each defendant. 24 In the circumstances, the trial court did not err in refusing to compel the production of the entire file relating to the informant. 25 (4) Inconsistent Verdicts: Appellant Patterson contends that his conviction for aiding and abetting a bank robbery was fatally inconsistent with his simultaneous acquittal for conspiracy to commit bank robbery. This contention is unfounded. 26 It has long been settled that aiding and abetting on the one hand, and conspiracy on the other, are two separate offenses [United States v. Tierney, 424 F.2d 643, 645 (9th Cir.1970) ]. In order to convict a defendant of the former, it is not necessary to find an agreement to do the act [Id. at 646]. It is entirely possible that the jury did not find a level of participation on Patterson's part sufficient to establish that he agreed to rob the bank. In the cases cited by appellant [e.g., Cosgrove v. United States, 224 F.2d 146 (9th Cir.1954) ], the inconsistent conviction was dismissed only because the one crime was impossible without the commission of the other. That is not here the case. 27 More fundamentally, it is a long established principle of law that mere inconsistency of verdicts does not require reversal unless there is insufficient evidence to sustain the guilty verdict [United States v. Brooklier, 685 F.2d 1208, 1220 (9th Cir.1982); citing Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932) ]. Here, the verdict was amply supported by evidence, as indicated in the discussion under "3" above. 28 Finally, the most that can be said in cases of inconsistent verdicts is that the jury did not speak its real conclusions, either as to the acquittal or the conviction [Dunn, supra]. Such verdicts may be the result of compassion or, more generally, of the jury selecting the verdict which most closely fits the crime. 29 The judgments of conviction are affirmed. * The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California sitting by designation
520 So.2d 1035 (1987) Nobie S. GIBBS, et al., Plaintiffs-Appellees, v. GAHAGAN LAND & TIMBER CO., INC., et al., Defendants-Appellants. No. 86-1136. Court of Appeal of Louisiana, Third Circuit. December 9, 1987. Writ Denied February 5, 1988. 1036 Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendants-appellants. Watson, Murchison, Crews, Arthur & Corkern, Daniel T. Murchison, Natchitoches, for plaintiffs-appellees. John Makar, Natchitoches, for defendant-appellee. Before FORET, YELVERTON and KNOLL, JJ. YELVERTON, Judge. This is a petitory action filed by the plaintiffs-appellees, Nobie S. Gibbs, Mary Gibbs Thompson, Nancy Makar Sewell, Jayme Makar Ponder and Charles S. Makar (Gibbs hereinafter). They assert that they are owners of 96.8 acres of land located in Natchitoches Parish. Gahagan Land & Timber Co., Inc. (Gahagan) filed exceptions of res judicata and ten-year acquisitive prescription. Each exception was heard separately by the trial court and each was overruled. After a trial on the merits, the trial court held that the title of Gibbs was better than that of Gahagan and that Gibbs should be recognized as owners of the disputed land. Gahagan appealed the judgment of the trial court. We affirm. To understand the facts pertinent to the exceptions, it is necessary to refer to an 1037 earlier and separate lawsuit affecting part of the property. That lawsuit, a possessory action, arose when by deed dated March 31, 1982 the plaintiffs sold and conveyed to James Weeks and his wife, Charlotte Weeks, 96.8 acres of land. On May 26, 1982 Gahagan filed a possessory action against James and Charlotte Weeks. Gahagan claimed to be in possession as owner of a portion of the property and had been for more than one year. The possessory action was decided in Gahagan's favor on May 16, 1983. The judgment ordered the Weeks to file a petitory action against Gahagan within 30 days, or upon failure to do so be forever barred from asserting any claim to the property. The property was described in the judgment as 79.6 acres. The judgment also cancelled and declared null and void the 1982 deed conveying the property from Gibbs to the Weeks. The Weeks never filed a petitory action. The judgment in that possessory action became final. By an instrument dated December 24, 1984 the Weeks reconveyed to Gibbs the same property that was conveyed to them on March 31, 1982. The 96.8 acres described in the reconveyance to Gibbs includes the 79.6 acres that was involved in the possessory action. The present petitory action was then field by Gibbs. The issues presented by this appeal are: I. Did the trial court commit manifest error in overruling Gahagan's exception of res judicata? II. Did Gahagan meet all the requisites for ten-year acquisitive prescription? III. Was the trial court clearly wrong in its determination that the plaintiffs proved a better title to the land in dispute than did Gahagan? The exception of res judicata was properly overruled. La.R.S. 13:4231 provides: § 4231. Res judicata, essential elements The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality. The statute requires that the thing demanded be the same, the cause of action be the same, and the parties be the same. Gahagan argues that the judgment it received in the possessory action against the Weeks is res judicata as to the present petitory action. Accordingly, Gahagan relies on the civil law doctrine of ayants cause as an exception to the basic requirement of res judicata that the parties to the two lawsuits be the same. An ayant cause is an assignee or successor in title. Hebert v. Melancon, 368 So.2d 1198 (La.App. 3rd Cir.1979). This reliance, however, is misplaced. The judgment in the possessory action cancelled and declared to be null and void the deed from Gibbs to the Weeks. Therefore, the Gibbs group was placed back in the same position they occupied prior to the 1982 conveyance to the Weeks. Considering this cancellation of the deed, it is incongruous to say that Gibbs are successors in title to the Weeks. The plaintiffs are not ayants cause of the Weeks and are not considered as having been a party in the original suit. The doctrine of res judicata is stricti juris and any doubt as to concurrence of identities must be resolved in favor of maintaining the action. Quinette v. Delhommer, 176 So.2d 399 (La.1965). Since an essential element of res judicata, identical parties, is absent, the exception lacks merit. Gahagan did not acquire the disputed property via prescription. The requisites for the acquisitive prescription of ten years are possession of ten years, good faith, just title, and a thing susceptible of acquisition by prescription. La.C.C. Art. 3475. The possession required must have been continuous and uninterrupted, peaceable, public and unequivocal. Authement v. Theriot, 292 So.2d 319 (La.App. 1st Cir. 1974). The evidence presented at trial revealed that whatever possession Gahagan 1038 may have had, it was not exclusive and was also enjoyed by Gibbs. Gibbs, and their authors in title, sold timber from the land, granted oil and gas leases and granted permits for seismic exploration. Appellees also testified that they hunted and camped in the area. These physical acts of possession occurred while Gahagan claims it had possession. The tax assessor testified that he carried a dual assessment on this property for many years and continues to do so to this day. The record does reflect that Gahagan granted mineral leases and permits for seismic exploration on the disputed property. However, these are acts of civil possession. The possessor must have corporeal possession, or civil possession preceded by corporeal possession to acquire a thing by prescription. La.C.C. Art. 3476. The record is void of any evidence that Gahagan ever exercised any physical or corporeal possession. Gahagan never cut timber, despite the fact that the vast majority of the subject property is timber land. The nature of the land or the use to which it is destined governs the possession necessary to support prescription. Verret v. Norwood, 311 So.2d 86 (La.App. 3rd. Cir. 1975). Consequently, Gahagan never had the possession required to support its plea of acquisitive prescription. The trial court determined that Gahagan was not in good faith and could not have reasonably believed that it was the owner of the property it claims to have possessed. After analyzing the record we agree with this conclusion. The testimony of a long time secretary of Gahagan was crucial to this issue. Joy Conlay testified that either she or Russell Gahagan, president of Gahagan, Inc., examined the title to all property purchased by Gahagan. A title examination would have clearly shown that Gibbs had record title to the same property as claimed by Gahagan's ancestor in title. This information obtained during the title examination is attributable to the defendant corporation. A corporation is bound by the knowledge acquired by its officers or agents relating to its affairs and business. Martin v. Schwing Lumber & Shingle Co., Inc., 81 So.2d 852 (La.1955). Therefore, Gahagan knew that there was a defect in its vendor's title. If a purchaser investigates the validity of his vendor's title, he is bound by what the record reveals and cannot claim to be in good faith if the record discloses a defect in the title of his vendor. Holley v. Lockett, 126 So.2d 814 (La. App.2nd Cir.1961). Thus, two essential elements of acquisitive prescription, possession and good faith, were not proven by the exceptor. Turning now to the ruling in the petitiory action, we agree with the trial court that Gibbs proved a better title to the disputed property. The petitory action proof is governed by C.C.P. Art. 3653 which provides: Art. 3653. Same; proof of title; immovable To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall: (1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or (2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. When the titles of the parties are traced to a common author, he is presumed to be the previous owner. The trial court made the factual determination that neither party was in possession. Thus, Gibbs only had to prove a better title to the property than Gahagan. Gibbs traced their title back to 1916 to Paul Potts, a common ancestor in title to both appellants and appellees. Gibbs further traced their title back to the sovereign. Conversely, Gahagan has not made out its title. The earliest deed filed in the record by Gahagan is dated 1957. The title is not traced back to its origin. The principal defense of Gahagan was not that it had a better title than Gibbs, but that some of the old deeds in Gibbs' chain 1039 of title were insufficient to be translative of title. Gahagan called an expert civil engineer to testify that the property could not be surveyed from the description on the face of some of those older deeds. However, the witness also stated that this was not unusual for early deeds and that the property could be located on the ground. A similar defense was made and rejected in Brasseaux v. Reaux, 394 So.2d 688 (La. App.3rd Cir.1981), which, by means of a footnote reference to Snelling v. Adair, 199 So. 782 (La.1940), held that if a deed describes property well enough so that it can be identified and located, it is sufficient to transfer ownership of the property. The property was correctly described as to section, township, and range, and its north and south boundaries were given. It was further identified as the property of the Vascocu heirs. For these reasons we conclude that the deeds were translative of title. Gibbs proved a better title than Gahagan, thus satisfying their burden under C.C.P. Art. 3653(2), and they are recognized as owners of the 96.8 acre tract of land. The judgment is affirmed at appellant's costs. AFFIRMED.
12-22 Wang v. Holder BIA A088 805 012 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of July, two thousand thirteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 ROBERT D. SACK, 10 Circuit Judges. 11 _____________________________________ 12 13 HUI XIA WANG, 14 Petitioner, 15 16 v. 12-22 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Thomas D. Barra, New York, N.Y. 24 25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 26 Attorney General; Paul Fiorino, 27 Senior Litigation Counsel; Rebekah 28 Nahas, Trial Attorney; Amanda Selvy, 29 Law Clerk, Office of Immigration 30 Litigation, Civil Division, United 31 States Department of Justice, 32 Washington, D.C. 1 2 UPON DUE CONSIDERATION of this petition for review of a 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 4 ORDERED, ADJUDGED, AND DECREED that the petition for review 5 is DENIED. 6 Petitioner Hui Xia Wang, a native and citizen of the 7 People’s Republic of China, seeks review of a December 9, 8 2011, decision of the BIA denying her motion to reopen. In 9 re Hui Xia Wang, No. A088 805 012 (B.I.A. Dec. 9, 2011). We 10 assume the parties’ familiarity with the underlying facts 11 and procedural history in this case. Because Wang did not 12 exhaust her argument that her motion to reopen demonstrated 13 her eligibility for relief under the Convention Against 14 Torture, we have reviewed the denial of reopening only with 15 respect to asylum and withholding of removal. See Karaj v. 16 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). 17 We review the BIA’s denial of a motion to reopen for 18 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 19 (2d Cir. 2006) (per curiam). It is well established that 20 the BIA may deny an alien’s motion to reopen for failure to 21 demonstrate her prima facie eligibility for the underlying 22 relief sought. See INS v. Abudu, 485 U.S. 94, 104-05 23 (1988). To establish eligibility for asylum and withholding 2 1 of removal, an applicant, like Wang, who does not rely on 2 past persecution must demonstrate a well-founded fear and 3 likelihood of future persecution, which requires a “showing 4 that authorities in h[er] country of nationality are either 5 aware of h[er] activities or likely to become aware of h[er] 6 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 7 (2d Cir. 2008) (per curiam). 8 Wang argues that she demonstrated that Chinese 9 authorities had become aware of her Falun Gong practice 10 based on a letter from her father stating that, in order to 11 establish Wang’s eligibility for asylum, he revealed her 12 Falun Gong activities to a local police officer, who 13 responded that the National Security Squad would punish her 14 if she returned to China. However, the BIA reasonably 15 declined to credit the letter because it was: (1) not sworn 16 or notarized; (2) implausible that her father would 17 voluntarily expose her potentially illegal activities; 18 (3) unsupported by the photograph Wang submitted, which only 19 showed her father posing in front of the police station, or 20 any other evidence; and (4) obtained specifically for 21 removal proceedings. See Xiao Ji Chen v. U.S. Dep’t of 22 Justice, 471 F.3d 315, 342 (2d Cir. 2006); Siewe v. 3 1 Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007); Matter of H- 2 L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 & n.5 (BIA 2010) 3 (affording minimal weight to documents obtained solely for 4 removal proceedings), remanded on other grounds by Hui Lin 5 Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). The BIA also 6 reasonably declined to afford probative weight to the video 7 and photographs of Wang protesting against China’s 8 repression of Falun Gong practitioners because they do not 9 sufficiently identify Wang such that Chinese authorities 10 could locate her in China, and are cumulative of similar 11 photographs presented during her removal proceedings. 12 See 8 C.F.R. § 1003.2(c)(1) (requiring that material, 13 previously unavailable evidence support a motion to reopen); 14 Xiao Ji Chen, 471 F.3d at 342. 15 Furthermore, even assuming that the police in Wang’s 16 village are aware of her activities in the United States, 17 her father noted in his letter that the officer with whom he 18 spoke stated that the local police were not responsible for 19 enforcing laws against the practice of Falun Gong and that 20 the agency charged with that task does not punish 21 individuals who cease their practice upon returning to 22 China. Because Wang’s father did not provide her identity 4 1 information (i.e., identification number or address in 2 China) to the pertinent enforcement agency and Wang did not 3 assert that she would continue practicing Falun Gong in 4 China, the BIA reasonably found that she failed to establish 5 her prima facie eligibility for relief. See Hongsheng Leng, 6 528 F.3d at 143 (explaining that applicant must demonstrate 7 that his “putative ‘persecutor’” is or will become aware of 8 applicant’s disfavored activities) (internal citation 9 omitted). Accordingly, the BIA did not abuse its discretion 10 in denying reopening. See id.; Abudu, 485 U.S. at 104-05. 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 5
[J-66-2016] [MO: Dougherty, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 84 MAP 2015 : Appellant : Appeal from the Order of the Superior : Court at No. 3553 EDA 2013 dated : March 5, 2015, reconsideration denied v. : May 8, 2015, Vacating & Remanding : the Judgment of Sentence of the : Montgomery County Court of Common RAFIE L. ALI, : Pleas, Criminal Division, dated : November 26, 2013 at Docket No. CP- Appellee : 46-CR-0005222-2012. : : ARGUED: May 11, 2016 DISSENTING OPINION JUSTICE BAER DECIDED: November 22, 2016 I respectfully dissent from the majority’s conclusion that the trial court properly admitted and considered the victim impact statements originally presented in Roger Malloy’s DUI-homicide trial when sentencing Appellee for various drug-related convictions. In my view, the majority conflates admissible victim impact testimony with community impact considerations and, in doing so, unduly broadens the Commonwealth’s ability to present impact evidence at sentencing. For the reasons that follow, I would hold that the trial court impermissibly admitted and considered the pertinent victim impact statements under the rubric of community impact considerations. Accordingly, I would affirm the Superior Court’s order vacating Appellee’s judgment of sentence and remanding for a new sentence without consideration of the impact evidence.1 In the majority’s view, the admissibility of evidence at sentencing is governed by Subsection 9721(b) of the Sentencing Code, which sets forth the general principle that, when a trial court selects a sentence for a convicted defendant, it must consider, inter alia, “the gravity of the offense as it relates to the impact on the life of the victim and on the community.” 42 Pa.C.S. § 9721(b).2 The majority determines that trial courts can 1 Though not at issue in the instant appeal, the Superior Court also determined that the trial court improperly applied various sentencing enhancements when sentencing Appellee. Accordingly, Appellee will receive a new sentence regardless of this Court’s decision, and the only question we must answer is whether the trial court can consider the victim impact statements at the new sentencing hearing. 2 Section 9721 states, in relevant part, as follows: (a) General rule.--In determining the sentence to be imposed the court shall, except as provided in subsection (a.1), consider and select one or more of the following alternatives, and may impose them consecutively or concurrently: (1) An order of probation. (2) A determination of guilt without further penalty. (3) Partial confinement. (4) Total confinement. (5) A fine. (6) County intermediate punishment. (7) State intermediate punishment. (b) General standards.--In selecting from the alternatives set forth in subsection (a), the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. 42 Pa.C.S. § 9721. [J-66-2016] [MO: Dougherty, J.] - 2 consider the impact of a crime on the community in “myriad ways,” including through discrete victim impact statements from other trials. Majority Op. at 16. The majority holds that, here, the victim impact evidence from Roger Malloy’s DUI-homicide case was admissible at Appellee’s sentencing hearing because the trial court had the discretion under Subsection 9721(b) to consider the impact of synthetic marijuana on the community in determining the severity of Appellee’s sentence. Respectfully, I do not read Subsection 9721(b) as authorizing trial courts to admit “community impact evidence” at sentencing.3 When read in its proper context, there is nothing in the language of Section 9721 to indicate that the General Assembly intended to authorize the admissibility of any evidence at sentencing. Rather, by its clear and unambiguous terms, Subsection 9721(b) sets forth the general principles that trial courts must consider when choosing among the available sentencing alternatives set forth in Subsection 9721(a). When contemplating the considerations set forth under Subsection 9721(b), a trial court is generally limited to the established record from the trial, the arguments of the parties, and the information contained in the pre-sentence report. A discrete exception to this general rule, however, allows the Commonwealth to supplement the trial record by introducing victim impact statements at sentencing. The only statutory basis (outside of the capital context) that allows trial courts to admit and 3 To the extent this Court must engage in statutory construction to resolve this matter, such a task is guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991. Pursuant to the Statutory Construction Act, the object of all statutory construction is to ascertain and effectuate the General Assembly’s intention. 1 Pa.C.S. § 1921(a). When the words of a statute are clear and free from ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). If the General Assembly defines words that are used in a statute, those definitions are binding. Pennsylvania Associated Builders & Contractors, Inc., v. Commonwealth Dep’t of Gen. Servs., 932 A.2d 1271, 1278 (Pa. 2007). [J-66-2016] [MO: Dougherty, J.] - 3 consider victim impact statements at sentencing is the Crime Victims Act. 18 P.S. §§ 11.101 - 11.502. Relevant to the instant matter, the Crime Victims Act establishes a “victims’ bill of rights,” which provides, inter alia, that crime victims have the right to present victim impact statements at sentencing hearings. 18 P.S. § 11.201(5).4 The Crime Victims Act defines “direct victim” as “[a]n individual against whom a crime has been committed . . . and who as a direct result of the criminal act . . . suffers physical or mental injury, death or the loss of earnings under this act” and limits the term “victim” to direct victims and select family members of direct victims. 18 P.S. § 11.103.5 4 Subsection 5 of the victims’ bill of rights affords victims of crime the following right: (5) To have opportunity to offer prior comment on the sentencing of a defendant or the disposition of a delinquent child, to include the submission of a written and oral victim impact statement detailing the physical, psychological and economic effects of the crime on the victim and the victim’s family. The written statement shall be included in any predisposition or presentence report submitted to the court. Victim-impact statements shall be considered by a court when determining the disposition of a juvenile or sentence of an adult. 18 P.S. § 11.201(5). 5 The Act’s definitions of “direct victim” and “victim” read, in full, as follows: “Direct victim.” An individual against whom a crime has been committed or attempted and who as a direct result of the criminal act or attempt suffers physical or mental injury, death or the loss of earnings under this act. The term shall not include the alleged offender. The term includes a resident of this Commonwealth against whom an act has been committed or attempted which otherwise would constitute a crime as defined in this act but for its occurrence in a location other than this Commonwealth and for which the individual would otherwise be compensated by the crime victim compensation program of the location where the act occurred but for the ineligibility of such program under the provisions of the Victims of Crime Act of 1984 (Public Law 98-473, 42 U.S.C. § 10601 et seq.). “Victim” The term means the following: (1) A direct victim. (continued…) [J-66-2016] [MO: Dougherty, J.] - 4 Additionally, this Court has recognized that victim impact testimony “is designed to show [] each victim’s uniqueness as a human being . . . [and] is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question.” Commonwealth v. Flor, 998 A.2d 606, 633 (Pa. 2010) (citing, inter alia, Payne v. Tennessee, 501 U.S. 808, 823-25 (1991) (internal citations and quotations omitted)).6 Thus, victim impact testimony is a discrete category of evidence that is intended to demonstrate the specific harm suffered by those most directly affected by the crime in question. Stated succinctly, Subsection 9721(b) simply has nothing to do with admission of evidence at sentencing. Rather, it does no more than set forth the general factors that trial courts must consider when sentencing convicted defendants. Conversely, the (…continued) (2) A parent or legal guardian of a child who is a direct victim, except when the parent or legal guardian of the child is the alleged offender. (3) A minor child who is a material witness to any of the following crimes and offenses under 18 Pa.C.S. (relating to crimes and offenses) committed or attempted against a member of the child’s family: Chapter 25 (relating to criminal homicide). Section 2702 (relating to aggravated assault). Section 3121 (relating to rape). (4) A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents or a fiance, one of whom is to be identified to receive communication as provided for in this act, except where the family member is the alleged offender. 18 P.S. § 11.103. 6 Though Flor dealt with victim impact testimony in a capital case, for which there is specific statutory authorization under 42 Pa.C.S. § 9711(a)(2), I find that this Court’s description of victim impact testimony in that case is useful here, as it demonstrates that the testimony must be specific to the victims of the crime in question. [J-66-2016] [MO: Dougherty, J.] - 5 Crime Victims Act specifically authorizes victims to present testimony at sentencing regarding the direct consequences of the defendant’s crime. Importantly, nothing in the Crime Victims Act or any other statute authorizes the admission of evidence regarding the manner in which a crime impacts a community. Regarding the evidence at issue in the instant appeal, there is no question that the intimate victim impact testimony originally presented in Roger Malloy’s DUI- homicide case was designed to demonstrate the specific harm caused by that crime. For example, the mother of one of the decedents gave the following statement in Malloy’s DUI-homicide case: And its [sic] just so hard being without my child. I can’t eat. I can’t sleep. Holidays are hard, especially when my birthday comes around. . . . I can’t have my birthday without my baby. Commonwealth’s Memorandum of Law in Support of Permitting Victim Impact Testimony, 10/17/13, Attachment at 35. This evidence clearly qualified as victim impact testimony in Malloy’s sentencing hearing and was properly admitted and considered in that case because it showed the devastation caused by Malloy’s decision to drive while intoxicated and the unique impact that the decedents’ deaths had on their families’ lives. Therefore, the victim impact testimony properly informed the trial court’s decision in that case to impose a sentence consistent with the severity of that crime. However, in the context of Appellee’s sentencing hearing for his drug-related convictions, the persons killed as a result of Malloy’s DUI-homicide were not persons “against whom” Appellee’s drug crimes were committed. Thus, the decedents were not “direct victims” of those crimes. 18 P.S. § 11.103. Because the decedents were not “direct victims” of Appellee’s drug crimes, it follows that decedents’ family members were not “victims” as defined in the Crime Victims Act. Id. Accordingly, the statements [J-66-2016] [MO: Dougherty, J.] - 6 they made in Malloy’s DUI-homicide case were not victim impact statements for the purposes of Appellee’s sentencing. Moreover, because Subsection 9721(b) does not authorize the admission of evidence to demonstrate community impact, the admission of the statements in accord with that statutory rubric was error. The improper admission of these statements was not harmless. Contrary to the majority’s conclusion, the trial court’s comments at sentencing do not evidence sensitivity to the “level of attenuation” between the DUI-related deaths and Appellee’s drug crimes. Majority Op. at 17. While noting that a jury could not have held Appellee responsible for the DUI-related deaths, the trial court nonetheless stated the following rationale for Appellee’s sentence: [Y]ou certainly were connected to a series of horrific events that led to unspeakable tragedy for the families that this [c]ourt had to listen to during the sentencing phase of Mr. Malloy’s case. So I cannot turn a blind eye to it. It is simply a fact. And that was the tragic turn of events that now leads to your conviction and your sentencing. N.T., 11/26/2013, at 73. Thus, the trial court erroneously admitted and considered specific impact statements at Appellee’s sentencing hearing regarding a crime for which he was not charged. Importantly, this error cannot be overcome simply by recasting the victim impact statements as “community impact evidence” as there is no basis for trial courts to admit and consider “community impact evidence.” By holding otherwise, the majority dangerously broadens the definition of admissible impact evidence. Its holding, which lacks statutory, case law, or common law authorization, will permit trial courts to consider impact statements in any case where the Commonwealth is able to assert that a defendant’s conduct has impacted a community. This holding renders the statutory limitations and substantial body of case law regarding the admissibility of victim impact evidence largely nugatory, as most victim impact evidence can now be subsumed by [J-66-2016] [MO: Dougherty, J.] - 7 the newly created amorphous category of admissible “community impact evidence.” I do not believe that anything in the law before the majority’s opinion has ever authorized such a result. Accordingly, I dissent. [J-66-2016] [MO: Dougherty, J.] - 8
223 S.E.2d 334 (1976) 289 N.C. 570 STATE of North Carolina v. Elzie McCALL. No. 20. Supreme Court of North Carolina. April 6, 1976. 335 Stepp, Groce, Pinales & Cosgrove by W. Harley Stepp, Jr., and Edwin R. Groce, Hendersonville, for defendant-appellant. Rufus L. Edmisten, Atty. Gen., Thomas B. Wood, Asst. Atty. Gen., Raleigh, for the State of North Carolina. HUSKINS, Justice: Defendant moved to nonsuit the first degree murder charge on the ground that evidence of premeditation and deliberation was insufficient to carry the capital charge to the jury. Denial of the motion is assigned as error. When the evidence is taken as true and considered in the light 336 most favorable to the State, as we are required to do, it is sufficient to carry the case to the jury on all counts encompassed by the bill of indictment. We overrule this assignment without further discussion. Viola McCall was an eyewitness to the shooting of her son by defendant on 26 January 1975. She thereafter married defendant on 26 April 1975. She attended defendant's trial but was not examined as a witness by him. After defendant had testified that he and Viola McCall were not married on 26 January 1975 when the homicide occurred but "were making plans," the district attorney was permitted over objection to cross-examine him as follows: "Q. You knew if you married her she couldn't testify against you, didn't you? A. Yes, I knew it." The district attorney then continued his cross-examination without further objection as follows: "Q. All right, you had been courting her for three years, and you hadn't married her during that three years, but as soon as she became eligible to testify against you as to what happened when you shot Brent, you married her in April, 1975, didn't you? A. I can't answer that question. Q. Why can't you answer it? A. Because you stated it wrong. Q. Well, you just state to the jury how it happened then. A. What? Q. How you happened to marry Viola knowing that she could be compelled to testify against you after the killing in January, 1975, happened to marry her in April, 1975? A. I put in for my divorce in November and I had a year to wait. I discussed the matter with Brent, and I discussed the matter of marriage with Viola. Viola and I had plans to marry long before this incident occurred. I filed separation papers in November of 1973, and to the best of my knowledge I got my divorce in February, 1975, in Asheville, North Carolina. Mr. Potts, my attorney, represented me in my divorce, and Mr. Potts is my lawyer in this case." Thereafter, the district attorney, without objection, made the following argument to the jury: "While we are talking about Viola, you know I was glad Mr. Potts pointed her out. Really, I was glad that Mr. Potts pointed her out to let you know that she was in the Courtroom. Let me tell you something the State of North Carolina cannot put her on the stand, but she can voluntarily go on the stand and her husband can call her. Her husband can call her on the stand if he wants to and Mr. Potts can put her on there. I can't touch her. I wish I could have, but Mr. Potts could put her on there. If what Elzie said was the truth, why didn't Mr. Potts put her on the stand? I'll tell you why he didn't put her on the stand because he knew I would have the right to examine her, cross examine her. The law of North Carolina is that a wife cannot testify against her husband. This is a good law, and I'm glad we have it, because the home ought to be the most important and that's the foundation of this country, is the home and the family, and until she married BrentElzie McCall in April, 1975, I could have put her on the stand. If this case had been tried in January or February, 1975, I could have put her on the stand and let her tell you exactly what she saw. She was standing right outside of the house. She said she was that's Elzie's testimony. He said that she went right over to Brent right after he was shot and gave him mouth to mouth resuscitation. Why in the world didn't she corroborate what her husband said about it, her present husband, if that's the way it happened? There was only three people there. That was Brent, Viola and Elzie, and Brent can't talk." * * * * * * 337 "Is there any question in your mind that that young boy was lying right here when his mother came over to him and started giving him mouth to mouth resuscitation? Do you know what she did whenever she went down to South Carolina in April, 1975, and performed a ceremony of matrimony with this man right here? She sealed her lips forever to be required by the State of North Carolina to tell you the truth about what happened on January the 26th, 1975. You ought to go take the flowers off your son's grave. Any woman that would do that. It's just as bad as her going and taking the flowers off her son's grave, because he was a human being. He was entitled to live and because she wanted to have some personal enjoyment and pleasures with her boyfriend because he had worn out his previous wife, then she goes and seals her lips. Are you going to turn this man loose because of that? If you do, you do. I'll tell you it makes my blood boil and if there's anything that I could do under the law of the State of North Carolina, I'll guarantee you, I'd do it or I'd try to do it." The quoted cross-examination of defendant constitutes his first assignment of error. The quoted argument of the district attorney to the jury constitutes defendant's second assignment of error. The failure of the trial court to instruct the jury that (1) defendant's wife could not be compelled to testify against him and (2) the fact that defendant chose not to call his wife as a witness could not be used to the prejudice of the defense, constitutes defendant's third assignment of error. These assignments being interrelated, we consider them together. G.S. 8-57 reads in pertinent part as follows: "The husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the failure of such witness to be examined shall not be used to the prejudice of the defense." By virtue of this statute defendant's wife was not a competent witness to testify against him, and her failure to testify for him could not be used to his prejudice. In State v. Porter, 272 N.C. 463, 158 S.E.2d 626 (1968), defendant was not represented by counsel. His wife was called by the State as a witness and testified that she saw what happened when defendant allegedly assaulted her sister. No exception was taken to his wife's testimony, but the question was raised on appeal to this Court. Held: "Ordinarily, failure to object in apt time to incompetent testimony will be regarded as a waiver of objection, and its admission is not assignable as error, but this rule is subject to an exception where the introduction or use of the evidence is forbidden by statute as here by the provisions of G.S. 8-57. When the evidence rendered incompetent by statute was admitted, it became the duty of the trial judge to exclude the testimony, and his failure to do so must be held reversible error whether exception was noted or not." In State v. Dillahunt, 244 N.C. 524, 94 S.E.2d 479 (1956), a State's witness testified without objection that defendant's wife made a statement that shortly before the assault for which her husband was on trial, the prosecuting witness passed her mother's house in a car and her husband followed him. Held: Under the provisions of G.S. 8-57 neither the husband nor the wife is competent to testify against the other, and the prohibition extends to declarations made by one spouse not in the presence of the other. "It is the duty of the presiding judge to exclude such evidence. Objection is not necessary." To like effect is State v. Warren, 236 N.C. 358, 72 S.E.2d 763 (1952). In State v. Helms, 218 N.C. 592, 12 S.E.2d 243 (1940), the solicitor in his argument to the jury called attention to the fact that defendant's wife had not testified in his behalf. This occurred during the temporary absence of the judge who, upon return to the courtroom, sustained defendant's objection. Near the conclusion of the court's charge to the jury the judge stated that the 338 law did not permit such comment and that the jury should not let the argument influence it. Held: The solicitor's comment violated the statute, C.S. § 1802 (now G.S. 8-57), was prejudicial, and "called for prompt, peremptory and certain caution to the jury, not only that the jury should disregard the argument but that the failure of the wife of defendant to be examined as a witness in his behalf should not be used to the prejudice of defendant. Even then, it may be fairly doubted that the harmful effects of such argument could have been dispelled from the minds of the jury. We are of the opinion, and hold, that merely sustaining the objection is not sufficient caution. Nor does the caution later given by the court free the case of the prejudice already done to the rights of defendant." In State v. Watson, 215 N.C. 387, 1 S.E.2d 886 (1939), the solicitor, over objection, in the course of his argument to the jury commented upon the failure of the defendant to call his wife as a witness. Held: The argument of the solicitor runs counter to the prohibitory provisions of C.S. § 1802 (now G.S. 8-57) and is prejudicial error. In State v. Cox, 150 N.C. 846, 64 S.E. 199 (1909), the State subpoenaed the wife of the defendant together with other witnesses. At trial the State tendered her to the defendant and the solicitor, in his argument to the jury, commented upon the failure of the defendant to corroborate his own testimony by the testimony of his wife. On objection made the court stated that the wife was not competent and would not be allowed to bear witness against her husband; that her testimony would be competent only in behalf of her husband and not against him; and that since she had not testified, the jury could not consider what she knew or did not know. In his charge, the court told the jury "it was not for the state to examine the wife of the defendant as a witness against her husband, but it was competent for the defendant to use her as a witness." Held: The tender of the wife by the State and the comments of the solicitor called attention to the failure of the defense to examine defendant's wife. The judge's neglect to instruct the jury not to consider such failure to use the wife as a witness was prejudicial error. The provisions of G.S. 8-57, and decisions of this Court interpreting and applying them, impel the conclusion that where evidence is rendered incompetent by statute, it is the duty of the trial judge to exclude it, and his failure to do so is reversible error, whether objection is interposed and exception noted or not. Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933 (1914). In such case it is the duty of the judge to act on his own motion. State v. Porter, supra; State v. Ballard, 79 N.C. 627 (1878). The rule applies with equal force to the argument of counsel when evidence forbidden by statute is argumentatively placed before the jury and used to the prejudice of the defense. When this occurs it is the duty of the judge ex mero motu to intervene and promptly instruct the jury that the wife's failure to testify and the improper argument concerning that fact must be disregarded and under no circumstances used to the prejudice of the defendant. For the reasons stated, defendant's first, second and third assignments are well taken and must be sustained. This requires a NEW TRIAL.
565 F.2d 789 184 U.S.App.D.C. 214 Novar Electronics Corp.v.Parker No. 76-1899 United States Court of Appeals, District of Columbia Circuit 11/25/77 D.C.D.C., 417 F.Supp. 185 AFFIRMED
177 Ga. App. 641 (1986) 340 S.E.2d 272 BRIGHT et al. v. FOOD GIANT, INC. 71234. Court of Appeals of Georgia. Decided February 3, 1986. Jack O. Morse, for appellants. Deborah A. Finnerty, Donald R. Andersen, for appellee. SOGNIER, Judge. Susan Bright and her husband, Timothy Bright, Sr., brought suit against Food Giant, Inc. in this slip and fall case. The trial court granted Food Giant's motion for summary judgment and the Brights appeal. Appellant Susan Bright was a customer at one of appellee's food stores when she slipped and fell on a "slick spot" on the floor. No employee of appellee's was in the aisle at the time of appellant's fall and although a cashier was at her register within eight feet of appellant when she fell, it is uncontroverted that the "slick spot" could not be seen from that employee's station. Furthermore, the evidence is uncontroverted that the "slick spot" could not be detected merely by looking at the floor. In her affidavit, appellant stated that "[t]he slick area was not visible, but was easily felt and discovered by touch of the hand and by rubbing your foot over it." *642 "In slip and fall cases, `[t]he true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the premises. [Cit.] . . . Georgia courts have uniformly held that where the customer slips on a substance placed on the floor by others than the owner, it is necessary to prove that the defendant had knowledge or that under the circumstances he was chargeable with constructive knowledge of its existence. [Cit.]' Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 344 (226 SE2d 142) [(1976)]. Constructive knowledge may be established by showing that (1) the substance had been there for such a time that ordinary diligence by the defendant should have effected its discovery; or (2) that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance. [Cit.]" Lend Lease Transp. Co. v. McBride, 169 Ga. App. 902-903 (315 SE2d 449) (1984). See also Caree v. Revco Discount Drug &c., 175 Ga. App. 487, 488 (333 SE2d 387) (1985). In the present case, appellants concede that there is no evidence that appellee had actual knowledge of the "slick spot." Susan Bright admitted she had no idea how long the "slick spot" had been on the floor and there was no evidence that appellee was responsible for its presence on the floor. Thus, no question of fact exists from which a jury could infer any failure on appellee's part to exercise reasonable care to keep its store in safe condition. See Dillon v. Grand Union Co., 167 Ga. App. 381, 382 (1) (306 SE2d 670) (1983). Similarly, it was not shown that appellee had constructive knowledge of the presence of the "slick spot" since, even assuming appellee's employees were in the immediate area, the evidence is uncontroverted that those employees could not have easily seen or discovered the substance in order to remove the hazard. See Winn-Dixie Stores, supra at 345. Therefore, in the absence of any questions of material fact, the trial court correctly granted summary judgment in favor of appellee. See Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga. App. 891, 893 (318 SE2d 514) (1984). Judgment affirmed. Birdsong, P. J., and Carley, J., concur.
37 So.3d 863 (2010) SELLERS v. STATE. No. 2D10-1975. District Court of Appeal of Florida, Second District. May 27, 2010. Decision Without Published Opinion Habeas Corpus denied.
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-2123 ___________ Kathie Garza, * * Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Jo Anne B. Barnhart, Commissioner of * Social Security, * PUBLISHED * Appellee. * ___________ Submitted: January 6, 2005 Filed: February 15, 2005 ___________ Before RILEY, McMILLIAN, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Kathie Garza (Garza) appeals the district court’s order affirming the denial of disability insurance benefits and supplemental security income benefits. In Garza’s October 1999 applications and later documents, she alleged disability since February 1998 from rheumatoid arthritis and depression, and from memory, concentration, and stomach problems. In May 2000, while Garza’s applications were pending, Dr. Theodore Rooney (Dr. Rooney), a rheumatologist, diagnosed Garza with fibromyalgia, opining it caused most of her symptoms as her rheumatoid arthritis was reasonably controlled. After a December 2002 hearing, during which a vocational expert (VE) testified, an administrative law judge (ALJ) determined Garza had rheumatoid arthritis, major depression, and gastroesophageal reflux disease; Garza’s allegations as to her limitations were not entirely credible; and, based on the VE’s testimony in response to a hypothetical the ALJ posed, Garza could perform her past relevant work. We reject Garza’s challenge to the ALJ’s credibility determination, because the determination was based on valid reasons. See Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003) (“If an ALJ explicitly discredits the claimant’s testimony and gives good reason for doing so, we will normally defer to the ALJ’s credibility determination.”). We also reject Garza’s argument that the ALJ improperly disregarded the opinions of a treating social worker and a Social Security Administration reviewing psychologist concerning Garza’s mental residual functional capacity (RFC). First, Garza failed to seek therapy after December 1998, and at the hearing, failed to link her limitations to depression. See Brosnahan v. Barnhart, 336 F.3d 671, 676 (8th Cir. 2003) (agreeing with ALJ’s decision to discount psychologist’s opinion, noting claimant quit counseling after four sessions, ignored recommendations for psychotherapy, and linked her activity limitations to physical problems). Second, the social worker’s letter about Garza’s mental RFC was written about a year after she last treated Garza–and then for only about five months– and she attached no treatment records supporting her RFC conclusions. Cf. Forehand v. Barnhart, 364 F.3d 984, 986 (8th Cir. 2004) (“A treating physician’s opinion is generally entitled to substantial weight, . . .[but it] must be supported by medically acceptable clinical or diagnostic data.”). Third, the social worker’s and reviewing psychologist’s RFC findings conflicted with those of a consulting psychologist, whose findings were based on testing. See Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004) (stating an ALJ must determine RFC based on all relevant evidence). -2- Garza asserts the ALJ erred by discounting the physical RFC findings of treating physician Martina Darulova (Dr. Darulova). We disagree. Dr. Darulova’s opinion on the extent of Garza’s physical limitations was inconsistent with her colleague’s December 1999 assessment of Garza’s disability status; with Dr. Rooney’s May 2000 opinion as to Garza’s inability to work for only twelve to eighteen weeks until he could get her pain under control; and with Dr. Darulova’s own relatively mild examination findings. Cf. Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (noting an ALJ may discount treating physician’s opinion if she has offered inconsistent opinions). Garza also complains the ALJ did not discuss Dr. Rooney’s opinion as to Garza’s RFC, but this is not a material omission because Dr. Rooney’s opinion was based on his experience with fibromyalgia patients in general and did not focus on Garza. Garza argues the ALJ erred by not listing fibromyalgia as a severe impairment. In summarizing the medical evidence, the ALJ mentioned Dr. Rooney’s May 2000 fibromyalgia diagnosis, but the ALJ did not discuss specifically other physicians’ subsequent references to fibromyalgia; and the ALJ specifically stated that Garza’s symptoms of muscle aches and pains had not been substantiated by objective medical testing.1 We thus agree with Garza that the record indicates the ALJ misunderstood fibromyalgia. See Forehand, 364 F.3d at 987 (noting (1) fibromyalgia is a chronic condition, usually diagnosed after eliminating other conditions; (2) no confirming diagnostic tests exist; and (3) our court has long recognized fibromyalgia might be disabling); Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996) (finding of no severity is limited to medical impairment(s) that would have no more than minimal effect on claimant’s ability to work). 1 The ALJ also stated, despite multiple blood results indicative of rheumatoid arthritis, there was minimal objective evidence to support Garza’s assertion that she had this condition. -3- It also appears the ALJ’s misunderstanding of fibromyalgia affected the ALJ’s RFC findings, and her related hypothetical to the VE. The ALJ formed her hypothetical by stating, if it were accepted that Garza had “some” fibromyalgia, such a condition would only limit her to lifting twenty pounds occasionally and ten pounds frequently, especially during flare-ups. While Dr. Rooney made no specific RFC findings as to Garza, he did opine as to the limitations normally found in fibromyalgia patients, for which he recommended sedentary work and other restrictions such as needing an opportunity to move around at least once or twice an hour, see 20 C.F.R. §§ 404.1567(a)-(b), 416.967(a)-(b) (sedentary work involves lifting no more than 10 pounds; light work involves lifting no more than 20 pounds, with frequent lifting or carrying of 10-pound objects), and such limitations differ markedly from the ALJ’s assessment of fibromyalgia-related limitations. Further, while the ALJ’s physical RFC findings are consistent with those of a Social Security Administration reviewing physician, the reviewing physician made his findings in January 2000, before Dr. Rooney diagnosed Garza with fibromyalgia in May 2000. We conclude we must remand this case to the ALJ so she can reconsider whether Garza’s fibromyalgia diagnosis on or after May 2000 constitutes a severe impairment, and, if so, whether it is disabling. We direct the ALJ to develop the record further by obtaining the medical records of rheumatologist Goel and the most recent medical records from Dr. Rooney. At that point, if it is still necessary, the ALJ may pose a revised hypothetical to a VE. See Forehand, 364 F.3d at 988 (noting in a fibromyalgia case that RFC determination requires consideration of whether claimant can perform requisite physical acts on daily basis in sometimes competitive and stressful conditions in the real world); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000) (noting the ALJ must develop record fully and fairly even when claimant is represented by counsel); Hutton v. Apfel, 175 F.3d 651, 656 (8th Cir. 1999) (“Testimony from a VE based on a properly-phrased hypothetical question constitutes substantial evidence.”); Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998) (encouraging Commissioner to give greater weight to specialist’s opinion). -4- We note, however, that the record does not support a finding of disability before March 1999, Garza’s date last insured for purposes of disability insurance benefits: Dr. J.B. McConville, Garza’s treating physician, opined in December 1999 that Garza’s physical findings did not support disability, and fibromyalgia was not diagnosed until May 2000. Thus, only Garza’s supplemental security income claim survives on remand. Accordingly we affirm, in part, and reverse and remand, in part, for further proceedings consistent with this opinion. ______________________________ -5-
United States Court of Appeals FOR THE EIGHTH CIRCUIT ________________ No. 06-2285 ________________ * Administrative Committee of the * Wal-Mart Stores, Inc. Associates' * Health and Welfare Plan, * Appeal from the United States * District Court for the Appellant, * Western District of Arkansas. * v. * [PUBLISHED] * Nancy Lynn Gamboa; Baudelio * Jose Gamboa; Wendy Aurora * Gamboa; Lucas Tizoe Gamboa, * * Appellees. * ________________ Submitted: November 15, 2006 Filed: March 7, 2007 ________________ Before RILEY, HANSEN, and SMITH, Circuit Judges. ________________ HANSEN, Circuit Judge. The Administrative Committee of the Wal-Mart Stores, Inc. Associates' Health and Welfare Plan ("the Administrative Committee") appeals the district court's grant of summary judgment to the Gamboas, refusing to enforce a reimbursement provision in Wal-Mart's health benefits plan. We reverse and remand for further proceedings. I. For the benefit of its employees and their dependents, Wal-Mart established and maintains a self-funded, ERISA-covered health and welfare plan ("the Plan"). The Plan is governed by the Wal-Mart Stores, Inc. Associates' Health and Welfare Plan Wrap Document ("the Plan Wrap Document"), amended and restated on January 1, 2001. That document defines the Plan as the Plan Wrap Document plus "each Welfare Program incorporated hereunder by reference," and a "Welfare Program" is a "written arrangement . . . incorporated into this Plan by identification in Appendix A." (Appellant's App. at 195.) Appendix A references a welfare program entitled, "Wal- Mart Associates' Group Health Plan." Health benefits are provided to Wal-Mart associates and their beneficiaries as listed in the Associate Benefits Book, which is distributed to employees. The Plan Wrap Document expressly provides the Administrative Committee, as the plan administrator, with complete discretion to interpret the Plan provisions. (Id. at 198.) In 2002, while Nancy Gamboa was a Wal-Mart employee covered under the Plan, a drunk driver collided with the Gamboas' car, causing serious injuries to Nancy and her family. Her husband, Jose, is now permanently disabled as a result of injuries sustained in the accident. Pursuant to the benefits listed in the 2002 Associate Benefits Book, subtitled, "Summary Plan Description," the Administrative Committee paid health care benefits totaling $177,136 on Jose's behalf. The Gamboas filed a dram shop action for damages, and in December 2004, Nancy, Wendy, and Lucas Gamboa all settled their individual claims against the tortfeasor for a total of $1 million. In consideration for the settlement proceeds paid to those family members, Jose executed a written release of his claims arising from the accident. -2- The Administrative Committee sought reimbursement from the settlement proceeds for the benefits it had paid on behalf of Jose, relying on a provision in the Associate Benefits Book that gives the Plan the right to "recover or subrogate 100 percent of the benefits paid or to be paid by the Plan for covered persons" where there has been a "judgment, settlement or payment made or to be made, because of an accident." (Id. at 189.) The Associate Benefits Book also obligates covered persons "to cooperate in order to guarantee reimbursement to the Plan." (Id.) The Gamboas refused to reimburse the Plan out of the settlement proceeds, asserting that Jose's written release rendered the settlement proceeds solely for the benefit of his wife and children. The Administrative Committee rejected this argument, asserting that the Associate Benefits Book clearly creates a right of reimbursement whenever settlement proceeds are paid "because of an accident," as occurred in this case. The Administrative Committee filed suit in federal court seeking equitable relief to enforce its right of reimbursement as set forth in the Plan. See 29 U.S.C. § 1132(a)(3)(B)(ii) (authorizing a participant, beneficiary, or fiduciary to file a civil action to obtain appropriate equitable relief in order to enforce any provision of ERISA or the terms of a plan); see also Admin. Comm. of Wal-Mart v. Varco, 338 F.3d 680, 686-88 (7th Cir. 2003) (holding the court had subject matter jurisdiction over Committee's claim for restitution out of a participant's recovery of damages in state court), cert. denied, 542 U.S. 945 (2004). The Gamboas continued to assert Jose's release of any claim to the settlement proceeds as a bar to reimbursement. Additionally, the Gamboas claimed for the first time that the reimbursement provision was not officially part of the Plan because it was found only in the Associate Benefits Book, not in the formal Plan Wrap Document. The Administrative Committee issued a letter setting forth its interpretation that the terms of the group health plan are contained in both the Plan Wrap Document and the medical section of the Associate Benefits Book, which includes not only the participant's right to payment of benefits but the corresponding obligation to reimburse the Plan for judgments or settlements obtained because of an accident. -3- The district court refused to enforce the Administrative Committee's decision to seek reimbursement as provided in the Associate Benefits Book. The district court concluded that the Associate Benefits Book did not fit within the Plan Wrap Document's definition of a Welfare Program, and thus, the Committee's decision to treat it as a plan document was contrary to the plain language of the Plan Wrap Document. The court granted summary judgment to the Gamboas and dismissed the case with prejudice. The Administrative Committee appeals, arguing that the district court erred in not deferring to its reasonable interpretation of the Plan. II. We review the grant of summary judgment de novo, using the same standard as the district court, and we view the evidence in the light most favorable to the nonmoving party. See Alliant Techsystems, Inc. v. Marks, 465 F.3d 864, 867 (8th Cir. 2006). Summary judgment is appropriate if the evidence of record demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Plan Wrap Document gives the Administrative Committee, as the plan administrator, complete discretion to interpret the terms of the Plan. Accordingly, we are limited to reviewing the Administrative Committee's interpretation of the Plan for an abuse of discretion. See Kennedy v. Ga. Pac. Corp., 31 F.3d 606, 609 (8th Cir. 1994) (stating, "[w]e review de novo the district court's application of the abuse of discretion standard" to a plan administrator's interpretation of an employee benefit plan). Where the plan administrator offers a reasonable interpretation of a plan, the district court should not substitute a different, though also reasonable, interpretation that could have been made. See Clapp v. Citibank, N.A. Disability Plan (501), 262 F.3d 820, 828 (8th Cir. 2001); Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir. 1997). "In applying an abuse of discretion standard, we must affirm if a reasonable person could have reached a similar decision, given the evidence before him, not that a reasonable -4- person would have reached that decision." Groves v. Metro. Life Ins. Co., 438 F.3d 872, 875 (8th Cir. 2006) (internal quotation marks omitted). "We look to the law of trusts when interpreting ERISA plan documents." Hughes v. 3M Retiree Med. Plan, 281 F.3d 786, 790 (8th Cir. 2002). We interpret the terms of a written arrangement by considering "'the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the settlor with respect to the trust as is not inadmissible.'" Id. (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 112 (1989)). We thus begin with the language of the Plan. An interpretation that conflicts with the plain language of a health and welfare plan is an abuse of discretion, see Erven v. Blandin Paper Co., 473 F.3d 903, 909 (8th Cir. 2007), but identifying "the plan" is not always a clear-cut task. "[O]ften the terms of an ERISA plan must be inferred from a series of documents none clearly labeled as 'the plan.'" Health Cost Controls of Ill. v. Washington, 187 F.3d 703, 712 (7th Cir. 1999), cert. denied, 528 U.S. 1136 (2000). Unfortunately, "[t]his kind of confusion is all too common in ERISA land." Id. Where a plan contains uncertain terms, this court will not disturb the plan administrator's interpretation of the plan, as long as it is reasonable. Riddell v. Unum Life Ins. Co. of Am., 457 F.3d 861, 864-65 (8th Cir. 2006). Our reasonableness review of a plan administrator's interpretation is informed by the Finley factors, see Finley v. Special Agents Mut. Benefits Ass'n, 957 F.2d 617, 621 (8th Cir. 1992), which guide us to consider whether the interpretation contradicts the plan's clear language, whether the interpretation renders any plan language internally inconsistent or meaningless, whether the administrator has interpreted the words at issue consistently, whether the interpretation is consistent with the plan's goals, and whether the interpretation conflicts with any substantive or procedural requirements of ERISA. Riddell, 457 F.3d at 864. On the face of the Plan Wrap Document, Wal-Mart appears to have attempted to eliminate ERISA land confusion in identifying the plan documents. The Plan Wrap -5- Document provides the governing structure of the overall Plan and describes the general procedures for determining participation, funding, administration, and claims under each individual welfare program to be established by the employer. It provides that the Plan consists of the Plan Wrap Document, together with each individual "Welfare Program" established by the employer. The Plan Wrap Document defines welfare program in relevant part as follows: "Welfare Program" means a written arrangement that is offered by one or more Employers and incorporated into this Plan by identification in Appendix A and which provides any employee benefit that would be treated as an "employee welfare benefit plan" under Section 3(1) of ERISA if offered separately. . . . For purposes of this Plan, only the terms of the formal plan document of each such arrangement [are] incorporated herein. Where no separate formal plan document exists, the plan document shall consist of any applicable insurance policy or contract and the applicable description of such benefits contained in the Associate Benefits Book, as modified from time to time, to the extent consistent with any applicable insurance policy or contract. (Appellant's App. at 195-96.) The first welfare program listed in Appendix A is the "Wal-Mart Associates' Group Health Plan." The district court reasoned that the plain language of the Plan Wrap Document requires a welfare program to be established by either (1) a formal written arrangement listed by name in Appendix A, or (2) where there is no formal document, an applicable insurance contract or policy, plus its description in the Associate Benefits Book. The district court reasoned that the reimbursement provision is not part of the Plan because it exists only in the Associate Benefits Book, which is a summary plan description not specifically listed as a welfare program in Appendix A, and it does not accompany an applicable insurance policy or contract. The district court adopted the reasoning set forth in Cossey v. Assocs.' Health and Welfare Plan, 363 F. Supp. 2d 1115, 1130-36 (E.D. Ark. 2005), and in that court's denial of -6- reconsideration, No. 4:02CV661, 2005 WL 3133500 (E.D. Ark. Nov. 21, 2005) (analyzing the same Wal-Mart plan provisions and concluding that the Associate Benefits Book, a summary plan description, is not a formal plan document because it was not specifically listed in Appendix A and it could not be deemed a plan document because it did not accompany an insurance policy) (unpublished). The district court thus concluded that the Administrative Committee's decision to treat the Associate Benefits Book, which contains the reimbursement provision, as a plan document was unreasonable because it was contrary to the plain language of the Plan Wrap Document. We agree with the district court to the extent it concludes that the Associate Benefits Book does not accompany any applicable insurance policy for purposes of this case. Thus, the alternate definition of "Welfare Program" (that is, where no formal document exists but there is an insurance contract, the contract and its description in the Associate Benefits Book comprise the plan documents) is of no avail here where there is no applicable insurance contract. In this case, the Plan did not provide benefits to Jose pursuant to an insurance contract, but pursuant to the terms set forth in a self-funded written arrangement. We respectfully disagree, however, with the district court's remaining plain language analysis. The plain language of the Plan defining a welfare program as a written arrangement, requires the written arrangement to be incorporated by identification in Appendix A. The first welfare program listed in Appendix A, and the only group health plan listed, is entitled the "Wal-Mart Associates' Group Health Plan." Uncertainty arises because there is no written arrangement bearing this name. In fact, there appears to be no formal written arrangement purporting to be a group health plan, yet group health benefits were paid and are not disputed. This situation presents a latent ambiguity regarding the terms of the group health plan. See Miller v. Taylor Insulation Co., 39 F.3d 755, 760 (7th Cir. 1994) (noting the doctrine of latent ambiguity applies in the ERISA context). "A latent ambiguity arises when the -7- contract on its face appears clear and unambiguous, but collateral facts exist that make the contract's meaning uncertain." Connect Commc'ns v. Sw. Bell, 467 F.3d 703, 709 (8th Cir. 2006) (internal marks and alteration omitted). In the face of a latent ambiguity, the dispute cannot be resolved by reference to the apparently plain language of the document. We must consider all of the factors listed in Finley. While not controlling in this circumstance due to the latent ambiguity, the plain language of the Plan Wrap Document does reference a group health plan in Appendix A. It is undisputed that the Plan Wrap Document does not itself provide any substantive health benefits, but that Jose received group health plan benefits pursuant to the Associate Benefits Book, which is a written arrangement and the only existing source of group health benefits. The Administrative Committee's interpretation deeming the Associate Benefits Book to be a plan document is therefore consistent with the Plan Wrap Document's assertion in Appendix A that a group health plan exists. This interpretation is also consistent with the requirements of ERISA. Absent a written arrangement specifying how benefits are to be paid, no ERISA welfare plan exists. See 29 U.S.C. § 1102(b)(4) (requiring an employee benefit plan to specify the basis on which payments are made to and from the plan). The group health benefits were provided as specified in the Associate Benefits Book, which informs the participants that portions of the book serve as part of the official plan document for the Plan. To hold that the only document providing health benefits is not a plan document would be to inappropriately permit an employer to "avoid the written instrument requirement by treating this written document describing employee benefits as merely a summary of a plan that is nowhere else in writing." Feifer v. Prudential Ins. Co. of Am., 306 F.3d 1202, 1208 (2d Cir. 2002). ERISA requires a written arrangement, and no other document exists by which group health benefits are provided. In this situation, the Administrative Committee's interpretation is consistent with the requirements of ERISA. It would be nonsensical to conclude that the plain -8- language of the Plan requires an interpretation that renders no plan at all under the terms of ERISA. In our opinion, the label of summary plan description on the Associate Benefits Book is not dispositive. The Plan Wrap Document contemplates a formal plan document, stating, "only the terms of the formal plan document of each such arrangement [are] incorporated herein." (Appellant's App. at 196.) But this case presents a circumstance where there is a welfare program specified but no formal document with the same label, and no source of benefits exists aside from the written Associate Benefits Book. Where no other source of benefits exists, the summary plan description is the formal plan document, regardless of its label. See Feifer, 306 F.3d at 1208-09 (rejecting the notion that the program summary was "a non-plan during the period when it was the only written document describing benefits"). This conclusion is consistent with our prior interpretation of ERISA plans. We have often noted that "[s]ummary plan descriptions are considered part of the ERISA plan document." Hughes, 281 F.3d at 790; Barker v. Ceridian Corp., 122 F.3d 628, 633 (8th Cir. 1997); Jensen v. SIPCO, Inc., 38 F.3d 945, 949 (8th Cir. 1994), cert. denied, 514 U.S. 1050 (1995). "An important objective of ERISA was to mandate disclosure to employees," and we have held that the terms of a summary plan description prevail even if they conflict with the provisions of a formal plan because of the importance of disclosing accurate information to employees. Hughes, 281 F.3d at 790. No such conflict exists here because the medical section of the Associate Benefits Book is the only benefit- defining document, and it fulfilled ERISA's disclosure requirements by disclosing both the benefits of the group health plan as well as the participants' corresponding obligation to reimburse the Plan where a judgment or settlement is received on account of an accident. Thus, regardless of its label as a summary plan description, if a dispute had arisen over the amount of benefits due, the Administrative Committee would no doubt have been bound to provide benefits in accordance with this document. See Groves, -9- 438 F.3d at 874 n.2 (noting "[t]he district court did not abuse its discretion in using the Plan booklet to evaluate the Plan terms" in a suit challenging the denial of benefits). Having received medical benefits in accordance with the Associate Benefits Book, we will not permit a participant to deny the corresponding responsibilities and obligations that are clearly imposed on the participant in the same document – what is good for the goose is good for the gander. See Health Cost Controls, 187 F.3d at 712 ("[H]aving obtained benefits in accordance with the latter agreement, it ill behooves Washington to turn around and deny that the agreement is the authoritative plan document.") We agree with the reasoning articulated by the Seventh Circuit in Health Cost Controls: Just as the employee welfare plan would be estopped to set up "the plan itself" as a defense to a claim for benefits if [the participant] had reasonably relied on the language of the summary plan description, so she is estopped to repudiate the plan document on the basis of which she obtained her full benefits, which she wishes to retain. Id. Additionally, there is no language in the Plan Wrap Document with which the reimbursement provision of the Associate Benefits Book is internally inconsistent.1 The Gamboas assert that the Plan Wrap Document limits the Administrative Committee's powers to correcting errors (Appellant's App. at 199, Plan Wrap Document § 4.2 (c)(12)), and argue that requiring the reimbursement of benefits that 1 We note that some circuits have dealt with this Plan and concluded that the Administrative Committee's right to reimbursement is a clear and unambiguous part of the Plan. See, e.g., Admin. Comm. of Wal-Mart Assocs. Health and Welfare Plan v. Willard, 393 F.3d 1119, 1122-24 (10th Cir. 2004); Varco, 338 F.3d at 687. The focus of those cases, however, was on the clarity of the reimbursement provision itself, not precisely the question of whether the Associate Benefits Book is a plan document. Accordingly, those cases are not dispositive of the issue before us. -10- were properly paid would be contrary to this language. We disagree. The section they reference preserves "without limitation" the Administrative Committee's right to make equitable adjustments for mistakes made in administering the plan and to recover erroneous overpayments in whatever manner the Committee deems appropriate. Further, the same section provides that the Administrative Committee also has "[s]uch other duties or powers provided in a Welfare Program." (Id. at § 4.2(c)(14).) Because a group health plan is identified in Appendix A as a welfare program, and the Administrative Committee reasonably construed the Associate Benefits Book as a plan document for the group health plan, there is no question that the Administrative Committee has the power to seek reimbursement in appropriate circumstances as provided in the Associate Benefits Book. This interpretation is also consistent with the goals of the Plan itself. A self-funded plan generally has limited resources, and the right of reimbursement or subrogation in certain instances "is an extremely important tool for maintaining the financial viability of such plans." Paris v. Iron Workers Trust Fund, No. 99-1558, 2000 WL 384036 at *3 (4th Cir.) (unpublished), cert. denied, 531 F.3d 875 (2000). Our consideration of the Finley factors convinces us that the Administrative Committee's interpretation was reasonable and not an abuse of discretion. Finally, while the Associate Benefits Book requires reimbursement of benefits in certain circumstances, the district court never resolved the Gamboas' assertion that reimbursement is not permitted because of Jose's written release, and this issue was not briefed on appeal. Consequently, on remand, the district court is directed to address and rule upon the effect, if any, of Jose's written release, as well as any other remaining affirmative defenses. -11- III. We reverse the judgment of the district court and remand for consideration by the district court in the first instance of any remaining affirmative defenses, including the effect of Jose's written release, and for such further proceedings as are necessary to conclude the litigation in the district court. ______________________________ -12-
624 F.2d 1090 Frankford Friends Schoolv.Joseph 79-2513 UNITED STATES COURT OF APPEALS Third Circuit 7/1/80 1 E.D.Pa. AFFIRMED
494 F.3d 1238 (2007) CLEARONE COMMUNICATIONS, INC., a Utah corporation, and Edward Dallin Bagley, Plaintiffs-Appellants, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, a Pennsylvania corporation, Defendant-Appellee. No. 05-4294. United States Court of Appeals, Tenth Circuit. July 25, 2007. 1239 1240 Raymond J. Etcheverry, Parsons Behle & Latimer, Salt Lake City, UT, for Appellant ClearOne Communications, Inc., and Jefferson W. Gross, Burbidge & Mitchell, Salt Lake City, UT, for Appellant Edward Dallin Bagley (Kent O. Roche, Parsons Behle & Latimer, Salt Lake City, UT, and Richard D. Burbidge and Robert J. Shelby, Burbidge & Mitchell, Salt Lake City, UT, with them on the briefs). Roy G. Weatherup, Lewis Brisbois Bisgaard & Smith, LLP, Los Angeles, CA, for Appellee (Douglas R. Irvine and Matthew L. Seror, Lewis Brisbois Bisgaard & Smith, LLP, Los Angeles, CA, and Phillip S. Ferguson and Anneliese C. Booher, Christensen & Jensen, P.C., Salt Lake City, UT, with him on the brief). Before HENRY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and TYMKOVICH, Circuit Judge. TYMKOVICH, Circuit Judge. National Union Fire Insurance Company of Pittsburgh, Pennsylvania rescinded an executive liability insurance policy it issued to ClearOne Communications, Inc. based on misrepresentations in financial statements accompanying ClearOne's application for the insurance. ClearOne filed suit challenging National Union's action. The district court granted summary judgment in favor of National Union, concluding National Union properly rescinded the insurance policy in its entirety under Utah law. ClearOne Communs. Inc. v. Lumbermens Mut. Cas. Co., 2005 WL 2716297, 2005 U.S. Dist. LEXIS 26187 (D.Utah Oct. 21, 2005). On appeal, ClearOne and one of its directors argue that (1) fact questions remain as to whether ClearOne knowingly misrepresented its financial condition in the insurance application, and (2) the district court erred in interpreting the insurance policy's severability clause and scope of loss provisions. We have jurisdiction pursuant to 28 U.S.C. § 1291, and AFFIRM in part and REMAND for further proceedings. I. Background A. Facts ClearOne is a publicly-held, audio conferencing products company in Salt Lake City, Utah. National Union of Pittsburgh, Pennsylvania provides comprehensive commercial insurance policies for businesses. Edward Bagley is ClearOne's single largest shareholder and is on the board of directors. In September 2002, ClearOne applied for a Directors & Officers (D & O) liability policy with National Union. As part of the process, ClearOne was required to complete an insurance application. One question asked applicants to provide copies of various documents or to indicate whether the documents are available on the Internet, 1241 including a 2002 10-K Form. See Question 14, Aplts. App. at 3680. ClearOne directed National Union to its website to obtain: (1) the "latest 10K report filed with the [SEC]"; (2) the "latest interim financial statement available"; and (3) "all registration statements filed with the SEC . . . within the last twelve months." Id. Furthermore, in response to other questions seeking a list of the applicant's executives, ClearOne responded, "See 10K." See Question 4(a) and (b), id. at 3677-78. In bold capital letters, the application declares, "All written statements and materials furnished to the insurer in conjunction with this application are hereby incorporated by reference into this application and made a part hereof." Id. at 3681. The application also includes a severability clause. Provision 15 of the application states, It is further agreed that in regard to the applicability of questions 8, 9, and 10 above,[1] the facts pertaining to any knowledge possessed by any Insured (other than the knowledge and/or information possessed by the person(s) executing the application) shall not be imputed to any other Insured Person; only facts pertaining to and knowledge possessed by any past, present or future chairman of the board, president, chief executive officer [CEO], chief operating officer [COO], chief financial officer [CFO] and General Counsel . . . of the Organization shall be imputed to the Organization. Id. at 3680 (emphasis added). The application was signed by Frances Flood, the President and CEO of ClearOne, on behalf of the corporation. As part of the application, she warranted, "The undersigned authorized officer/manager of the applicant declares that the statements set forth herein are true." Id. Upon receipt of the application, National Union undertook a review and analysis of the documents. National Union thoroughly examined the 10-K, the 10-Q, and other financial documents provided by ClearOne. After reviewing ClearOne's documents, National Union had additional questions about the financial statements. Brady Head, a Senior Vice President of National Union, emailed a ClearOne representative asking specifically if the company certified its financials as required by Sarbanes-Oxley and if there were any non-compliance issues with respect to its revenue recognition practices. Head received answers to those questions in a conference call with Susie Strohm, ClearOne's CFO, who indicated there were no non-compliance issues and the financials were certified. National Union issued a D & O policy to ClearOne valued at $3 million to run from October 29, 2002 until October 29, 2003. In early 2003, ClearOne publicly acknowledged that its financial statements for the previous two years were not reliable, later admitting that shareholders' equity and net income had been substantially overstated.[2] The overstatement arose 1242 from ClearOne's revenue recognition practices. ClearOne entered into distributor agreements with a policy of recognizing revenue when the product was shipped to distributors. It required distributor payments within 90 days, but the common practice was to permit distributors to remit payment for the products if and when the products were subsequently sold. This practice was known as "pay as you go" or "pay as you sell" and led to the accelerated recognition of revenue not yet received. The admission of financial irregularities precipitated several shareholder suits and an investigation by the SEC. In anticipation of these matters, ClearOne notified National Union as a prelude to tendering a claim under the policy. In response, National Union announced its intention to rescind the insurance contract ab initio based on the 2002 financial misstatements, which it relied on in issuing the policy. ClearOne later entered into a consent decree with the SEC, enjoining any future securities law violations without admitting any guilt. Based in part on National Union's refusal to honor the D & O policy, ClearOne also settled a class action suit by its shareholders, paying $5 million and issuing 1.2 million shares of common stock to the class plaintiffs. B. Procedural History ClearOne and Bagley brought this diversity action to enforce their rights under the $3 million D & O liability insurance policy. They each asserted a breach of contract claim and a tort claim based on bad faith, and both sought punitive damages. Bagley's claims specifically relate to the dilution of his ownership share based on the distribution of additional company shares as part of the settlement of the class action suit. He claims that the issuance 1243 of the 1.2 million shares of ClearOne stock diluted his ownership and effectively forced him to contribute a portion of his shares in the company to the settlement. National Union's principal defense is that it properly rescinded the policy after discovering it had issued the policy in reliance upon material misrepresentations made by ClearOne in its insurance application and related materials. Both sides filed cross motions for summary judgment and partial summary judgment. In granting summary judgment for National Union, the district court (1) held National Union properly rescinded the insurance policy in its entirety under Utah law, and (2) rejected Bagley's claims since he suffered his loss in the capacity of a shareholder and not as a ClearOne director. The court's rulings rendered moot the other summary judgment motions. Both ClearOne and Bagley appeal the decision. II. Standard of Review We review the district court's grant or denial of summary judgment de novo, applying the same legal standard that the district court applied. Montero v. Meyer, 13 F.3d 1444, 1446 (10th Cir.1994). Under that standard, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `genuine' if the evidence allows a reasonable jury to resolve the issue either way and is `material' when it is essential to the proper disposition of the claim." Haynes v. Level 3 Communs., 456 F.3d 1215, 1219 (10th Cir.2006) (internal quotation omitted). On an appeal from a motion for summary judgment, we construe all factual inferences in favor of the party against whom summary judgment was entered. NISH, Inc. v. Rumsfeld, 348 F.3d 1263, 1266 (10th Cir.2003). In addition, we review the district court's interpretation and determination of state law de novo. Freightquote.com v. Hartford Cas. Ins., 397 F.3d 888, 892 (10th Cir.2005). "Where the state's highest court has not addressed the issue presented, the federal court must determine what decision the state court would make if faced with the same facts and issue." Oliveros v. Mitchell, 449 F.3d 1091, 1093 (10th Cir.2006) (internal quotation omitted). III. Analysis ClearOne contends the district court erred by misapprehending (1) the elements of rescission under Utah law, (2) the severability clause's effect on rescission, and (3) whether any claims survive rescission. We consider each contention in turn. A. Rescission Starting with the rescission claim, ClearOne first contends it never gave an unqualified warranty that its financials were accurate, and therefore no misstatement exists to serve as a basis of rescission. It also contends that the elements of rescission were not satisfied on summary judgment because genuine issues of material facts exist as to (1) knowledge of the misstatement, (2) materiality of the misstatement, (3) reasonable reliance on the misstatement and the estoppel defense to reliance, and (4) the innocence of misstatements; thereby defeating rescission. Rescission of an insurance contract is governed by Utah law. Under § 31A-21-105 of the Utah Code, "[N]o misrepresentation or breach of an affirmative warranty affects the insurer's obligations under the policy unless: (a) the insurer relies on it and it is either material or is made with 1244 intent to deceive; or (b) the fact misrepresented or falsely warranted contributes to the loss." Utah Code Ann. § 31A-21-105(2) (1994). In interpreting these elements, a Utah appellate court has construed the "misrepresentation" term to contain a scienter element. Derbidge v. Mutual Protective Ins. Co., 963 P.2d 788 (Utah Ct.App.1998). Misrepresentation is "something more than an innocent misstatement." Id. at 795. Consequently, an "innocent misstatement" does not constitute a "misrepresentation" for purposes of rescission.[3] National Union sought rescission under the theory that it relied on ClearOne's material misrepresentation in its insurance application. See § 31A-21-105(2)(a). Accordingly, in order to invalidate ClearOne's insurance policy, National Union must first establish (1) a misstatement, (2) lack of innocence, (3) materiality, and (4) reliance. After reviewing the record and examining Utah law, we agree with the district court that National Union sufficiently demonstrated three elements misstatement, materiality, and reliance. Nevertheless, we disagree that lack of innocence was established as a matter of law and we therefore remand on that issue. 1. Misstatement Preliminarily, the parties had divergent views as to the nature of the misstatement at issue. While it is uncontested that ClearOne's 2002 10-K financial statement falsely represented ClearOne's true financial condition, see Aplts. Br. at 37 ("ClearOne and Bagley do not deny that the financial statements reviewed by National Union while underwriting D & O Policy were misstated."), two theories of the nature of the misstatement flow from the representations in the insurance application. On one hand, National Union claims the false financial statements themselves constitute the misstatement since they were incorporated into the application. ClearOne argues, on the other hand, that the financial statements could not serve as the basis of rescission because (1) ClearOne never gave an "unqualified representation that its financials were accurate," id. at 29, and (2) incorporating the 10-K by reference into the application contravenes both Utah law and an insurance policy provision against incorporation of items not found in the policy or application. Instead, ClearOne maintains that the only possible misstatement flows from Flood's answer to two questions in the application which warranted against any knowledge or information that would give rise to a claim under the policy. See Questions 9(a) and (b), Aplts. App. at 3678. The district court agreed with National Union and held that the false financials constituted a misstatement for purposes of rescission. We concur. Question 14 of the application clearly asks applicants to provide copies of the "latest 10K report filed with the Securities and Exchange Commission." In response, ClearOne directed National Union to its website to gain the requested forms. The application then states, "All written statements and materials furnished to the insurer in conjunction with this application are hereby incorporated by reference into this application and made a part hereof." Aplts. App. at 3681. The incorporated financials in turn become a basis of the contract issuing a policy 1245 between National Union and ClearOne. Id. at 3680. a. Incorporation by Reference Taking ClearOne's second argument first, we perceive no legal infirmity in incorporating the financials into the insurance application. Under Utah law, "an insurance policy may not contain any agreement or incorporate any provision not fully set forth in the policy or in an application or other document attached to and made a part of the policy at the time of its delivery, unless the policy, application, or agreement accurately reflects the terms of the incorporated agreement, provision, or attached document." Utah Code Ann. § 31A-21-106(1)(a) (1996). National Union's D & O policy also states that "[t]he Application and all relevant documents will be attached to the policy at the time of delivery." Aplts. App. at 3727. ClearOne interprets these provisions as precluding the incorporation of the 10-K by reference. Neither the plain language nor the purpose behind the statute support ClearOne's conclusion. First, § 31A-21-106(1)(a) restricts only "agreement[s]" or "provision[s]" from incorporation into the insurance contract. The 10-K Form is neither. Instead, it is a part of the factual predicate of the application, serving to induce issuance of the policy. The financial form was not a part of the policy's coverage terms, and was analytically no different than other information ClearOne provided to National Union. As the Utah Supreme Court has stated, the statute's "aim is to ensure that the entire insurance contract is contained in one document so that the insured can determine from the policy exactly what coverage he or she has." Cullum v. Farmers Ins. Exch., 857 P.2d 922, 925 (Utah 1993). When insureds can determine their coverage under the policy "solely by relying on the [policy] document," then § 31A-21-106(1)(a) is not implicated. Id.; see also Progressive Cas. Ins. Co. v. Dalgleish, 52 P.3d 1142, 1146 (Utah 2002). Accordingly, we find that this statute does not apply to ClearOne's financial statements incorporated into the National Union application. b. Warranty ClearOne's first argument that it never gave an iron-clad warranty as to the accuracy of its financials is also unpersuasive. ClearOne bases its argument on the fact that the financials included only a tepid certification of their accuracy.[4] Nevertheless, under § 31A-21-105, a representation need not be warranted as true to constitute a misrepresentation. The provision distinguishes between a "misrepresentation" or a "breach of an affirmative warranty"[5] and either may form the basis of rescission. Utah Code Ann. § 31A-21-105(a). The statute obviously contemplates a distinction between (1) a statement that is falsely represented and (2) a statement that violates a warranty of accuracy. Reading a "warranty" requirement into "misrepresentation" fails to give full effect to both provisions of the statute, and we decline such an interpretation. Utah case law pre-dating § 31A-21-105 confirms this view. In Fidelity & Casualty 1246 Co. v. Middlemiss, 103 Utah 429, 135 P.2d 275, 279 (1943), the Utah Supreme Court held, If a representation is material to the risk and likewise knowingly false, it will be as potent for a rescission of the contract embodied in the policy as if the untrue statement was made in form [of] a warranty. Thus, ClearOne's representations in its financials were as good as a warranty. "An inaccurate statement is an inaccurate statement, regardless of whether the maker of that statement made an additional promise to be truthful." National Union Fire Ins. Co. v. Sahlen, 807 F.Supp. 743, 747 (S.D.Fla.1992). Accordingly, the district court did not err in concluding that National Union met the misstatement element necessary to establish rescission. 2. Innocence ClearOne next contends a genuine dispute of fact exists as to whether its certifying official knew the financial statements were inaccurate, or, put differently, whether it innocently presented the financials as accurate to National Union. ClearOne argues a factual dispute exists as to CEO Frances Flood's knowledge of the misstatements incorporated into the insurance contract thereby negating the scienter requirement. Nevertheless, whether Flood had actual knowledge of the misstatements in the financials is only part of the equation since we conclude Utah's rescission statute only requires that Flood knew or should have known about the misstatements. a. Utah Law Recent analysis of insurance rescission law by a Utah appellate court supports the "knew or should have known" standard for innocence. In Derbidge v. Mutual Protective Ins. Co., 963 P.2d 788 (Utah Ct.App. 1998), an applicant sought medical insurance from an insurer. As part of the insurer's application, the applicant answered "no" to whether she received medical treatment or advice for an organic mental disease or disorder. Id. at 789. The insurer issued the applicant a long-term care policy pursuant to the application. Six months later, the applicant filed a proof of loss, claiming she suffered from Alzheimer's disease. Unknown to the applicant, several years beforehand, her doctor suspected she suffered from an organic brain syndrome. The doctor noted his suspicion in her medical records but did not discuss the possible diagnosis with the applicant. Upon discovery of her medical records, the insurer rescinded her insurance policy based on the misrepresentation in her application. Reviewing Utah law, law from other jurisdictions, and policy considerations, the court concluded that the rescission statute required an insurance applicant have "knowledge or awareness" of the misstatement in order for it to constitute a "misrepresentation" and serve as a basis of rescission. 963 P.2d at 797. In other words, rescission may not be grounded solely on an "innocent misstatement" made by the insured. Id. at 793. The applicant must, therefore, "[do] something more than make an innocent misstatement." Id. The court, nevertheless, left open the question of what degree of knowledge is necessary before a misstatement can be considered a misrepresentation. While not directly answered in Derbidge, we are not wholly left without guidance. First, the Utah court states, "at least some level of knowledge or awareness of a misstatement [is required] to make it a misrepresentation." Id. (emphasis added). Second, the court determined that the insured must have "no idea" that the misstatements were inaccurate. Third, the Derbidge 1247 court quotes approvingly the Utah common law standard which permits rescission of an insurance contract when "the insured knew or should have known [the statements and answers] to be untrue at the time he made them." Id. at 794 (quoting Chadwick v. Beneficial Life Ins. Co., 54 Utah 443, 181 P. 448, 451 (1919)); see also Middlemiss, 135 P.2d at 280. While the common law was abrogated by statute, as the court noted, the common law can instruct the interpretation of the rescission statute. Derbidge, 963 P.2d at 794. ("We see no necessary conflict between the common law rule and section 31A-21-105(2)."). Reading these statements together, in our view Utah courts would apply a standard of recklessness to the insured's state of mind under the statute. A misstatement is not innocent under Derbidge if the applicant knew or should have known about its falsity. In addition to support in Utah's common law, Utah courts adopted a similar scienter requirement in interpreting the fraud element in Utah's predecessor insurance code. See Hardy v. Prudential Ins. Co., 763 P.2d 761, 769 (Utah 1988) (holding that an insured's "knowledge or good reason to know" of misstatements "constitute[d] a fraud practiced upon the insurer" under now-superceded Utah Code Ann. § 31-19-8 (1974) (citing Chadwick)). Next, a "knew or should have known" standard is consistent with Utah courts' interpretation of other knowledge elements. See, e.g., Strand v. Prince-Covey & Co., 534 P.2d 892, 894 (Utah 1975) (using the standard to establish a bona fide purchaser under the Uniform Commercial Code); Smith v. Frandsen, 94 P.3d 919 (Utah 2004) (applying standard to general negligent misrepresentation and fraudulent concealment claims); Russell Packard Dev., Inc. v. Carson, 108 P.3d 741 (Utah 2005) (employing test for knowledge element of the discovery rule); Adamson v. Brockbank, 112 Utah 52, 185 P.2d 264, 270 (1947) (raising the standard as a factor in the creation of easements). Other jurisdictions that define misrepresentations as non-innocent misstatements are faithful to this analysis. See, e.g., Massachusetts Mutual Life Ins. Co. v. Allen, 416 P.2d 935, 941 (Okla.1965) ("Failure to disclose a latent disease of which applicant had no knowledge, or reason to know, will not void a life insurance policy."); Lazar v. Metropolitan Life Ins. Co., 290 F.Supp. 179, 181 (D.Conn.1968) (A knowing misrepresentation occurs when an applicant "gives an answer other than that which he has reason to believe is true."); CenTrust Mortg. Corp. v. PMI Mortg. Ins. Co., 166 Ariz. 50, 800 P.2d 37, 42 (Ct.App. 1990) ("Legal fraud occurs when an insured incorrectly states a fact about which he has actual knowledge or that is presumed to be within his knowledge. Intent to deceive need not be shown."); First Am. Title Ins. Co. v. Lawson, 177 N.J. 125, 827 A.2d 230, 239 (N.J.2003) (applying "knew or should have known" standard). We find additional support in basic insurance law, which also yields a "knew or should have known" standard. See, e.g., 12A-266 Appleman on Ins. § 7300 ("[A] policy will not be avoided by [false] representations unless the insured knew that they were false or was chargeable with such knowledge."); 43 Am.Jur.2d Ins. § 1018 ("Legal fraud in connection with insurance occurs when the insured incorrectly states a fact about which the insured has actual knowledge or that is presumed to be within the insured's knowledge."). Under the weight of these authorities, we conclude that Utah courts would hold that an applicant's actual knowledge is not the sole basis for establishing a misrepresentation under § 31A-21-105(2). A misrepresentation occurs if the applicant knows or should have known about a misstatement 1248 in the application and still presents it to the insurer. b. Application In applying this standard to the facts of this case, the district court did not have the benefit of our interpretation of Derbidge, and concluded that ClearOne's knowledge, as a corporate entity, and not Flood's specific knowledge governed this factor. Accordingly, the district court made no definitive conclusions as to whether Flood knew or should have known about the financial misstatements attached to the National Union application. First, the district court wrongly held that ClearOne's knowledge, as a corporate entity, as opposed to Flood's, is the dispositive question when adjudging the innocence of misstatements included in the insurance application. Without finding that Flood (or any other corporate director) possessed knowledge of the misstatements, the district court concluded, "ClearOne, as an entity, was certainly aware of the conditions which gave rise to the misstated financial statements and had a reason to know that its financial statements were incorrect." Order & Mem. Decision at 26, Aplts. App. at 7021. The court then concluded that the misstatements were not innocently presented to National Union. Yet, this approach blurs the distinction between knowledge of a corporation and knowledge of an individual director. Under the court's standard, virtually any misstatement of financial information included within an application could give rise to a rescission of a corporate insurance policy. Such a reading would effectively nullify the "innocence" defense established by Derbidge since applicants' ignorance of the misstatement offers no protection. Utah insurance law does not compel the per se imputation of any misstatement made in an insurance application to the corporation without first determining whether the application signor (or another corporate director) had knowledge of the misstatement. In Utah, it is the general rule of corporate law that only knowledge possessed by its officers and agents can be imputed to a corporation. Lowe v. April Indus., 531 P.2d 1297, 1299 (Utah 1974) ("[K]nowledge of the [corporate] entity is imputed to it from the knowledge possessed by its officers and agents."). Accordingly, National Union must establish that Flood knew or should have known about the financial misstatements attached to the application. We leave open the question of whether another corporate officer's or director's knowledge, aside from Flood's knowledge, may suffice to negate the innocence of any misstatement in ClearOne's application for insurance.[6] Second, although unclear from the court's order, to the extent the district court held that Flood had actual knowledge of the financial misstatements as a matter of law, we disagree. The crux of the district court's argument seems to be statements made by Tim Morrison, ClearOne's former Vice President of Product Sales, inculpating Flood in the "pay as you go" scheme. Additionally, Mike Oltz, a managing member of one of ClearOne's distributors, claimed that Flood told him, "for purposes of the accountants and legal requirements, ClearOne would require payment for shipments . . . in 90 days." Order & Mem. Decision at 9, Aplts. App. at 7004. Then, according to Oltz, Flood stated, "In writing there is a brick wall at 90 days, in practice there is not." Id. 1249 Yet, this contradicts Flood's own statements that she learned about the "pay as you go" arrangement in December 2002, after signing the National Union application. When a distributor earlier confronted her about the "pay as you go" arrangement, she said it "wasn't a point of concern [for her] because [she] didn't think it was accurate." Id. at 3361. She claims she assumed it was just a "tactic" of the distributor. Id. Even if the evidence does show that Flood knew about the "pay as you go" scheme, it does not mean she knew that the 10-K contained misstatements. As she admitted, she "was not an accountant" and she would have needed to consult with Ernst & Young, ClearOne's accountant, to determine if the "pay as you go" scheme was a cause of concern. Id. In fact, ClearOne is currently suing Ernst & Young for negligence in providing accounting advice. Id. at 4457. Furthermore, Flood testified at the time she signed the Sarbanes-Oxley certification for the 2002 financials and 10-K in September 2002, she believed that there were no inaccuracies in the financials and that they fairly presented all material aspects of ClearOne's financial condition. Id. at 3360-61. With all inferences drawn in ClearOne's favor, we agree that Flood's actual knowledge of the misstatements in the 10-K is in doubt. On the other hand, whether she should have known about the misstatements is a different question, and perhaps an easier matter to establish. In the corporate context, corporate directors have a general obligation to know the financial condition of their corporations. As a general rule an officer or director of a corporation is chargeable with knowledge of all matters relating to the affairs of the corporation which he actually knows or which it is his duty to know. Thus, in actions by strangers against an officer or director, the defendant will generally be charged with knowledge of all facts relating to the condition and business of the company which he might have known by the exercise of due diligence, whether actually known to him or not. Gay v. Young Men's Consol. Co-op. Mercantile Inst., 37 Utah 280, 107 P. 237, 240 (1910); see also 2 Fletcher Cyc. Corp. § 465 ("[T]he [corporate] officer is chargeable with the knowledge he or she should have had in the discharge of his or her duties."). Furthermore, under the Sarbanes-Oxley Act, the signing officer of a corporate 10-K (in this case, Flood) is required to certify the accuracy of the corporation's financial statements and requires the officer to "design[ ] . . . internal controls to ensure that material information relating to the [corporation] is made known to such officer[ ] by others within [the corporation]." 15 U.S.C. § 7241(a)(1)(4). Under the record before us, we do not know if Flood "should have known" about the financial misstatements in the 10-K. We do not know if Flood utilized reasonable internal controls that would have ferreted out the financial misstatements in the 10-K or whether she reasonably relied on Ernst & Young in conducting their business operations to satisfy the due diligence requirement of corporate directors (especially in light of ClearOne's suit against the accounting firm). Accordingly, summary judgment on this question is inappropriate since the district court did not yet have the opportunity to consider these questions. We remand this matter to the district court to consider whether Flood should have known about the financial misstatements. 3. Materiality A fact is material to the risk assumed by an insurance company if reasonable 1250 insurers would regard the fact as one which substantially increases the chance that the risk insured against will happen and therefore would reject the application. Burnham v. Bankers Life & Casualty Co., 24 Utah 2d 277, 470 P.2d 261, 263 (1970). In other words, a material fact is one that "would naturally influence the insurer's judgment in making the contract, in estimating the degree and character of the risk, or in fixing the rate of insurance." Middlemiss, 135 P.2d at 279. We do not see how ClearOne's financial records, which give an account of the financial health of the company, could not influence National Union's assessment of the company's risk. In any event, ClearOne conceded the issue at oral argument. Accordingly, we find no factual dispute as to the materiality of the financial statements. 4. Reliance and the Defense of Equitable Estoppel Finally, ClearOne contends a genuine dispute exists as to whether National Union actually relied on the financial statements in issuing the policy. It argues, moreover, that National Union should be equitably estopped from rescinding the insurance policy based on its knowledge of the irregularities in the financial statements. The Utah Supreme Court has laid out the standard for analyzing reliance: An insurance company cannot escape liability on a policy if it is established that there should have been no actual reliance on the applicant's misrepresentation, concealment, or omission. Hardy v. Prudential Ins. Co., 763 P.2d 761, 770 (Utah 1988). The court set forth two corollaries to this rule which, if shown, prevent the insurer from escaping liability: "(1) if the insurer has information which would have put a prudent person on notice of possible falsity and would have caused an inquiry which, if carried out with reasonable diligence, would have revealed the truth, the insurer cannot rely on the misrepresentation; and (2) if the insurer chooses to make an independent inquiry and a reasonable search would have uncovered the misrepresentation but the facts were not discovered because the investigation was cursory, the insurer cannot rely on the misrepresentation." Id. ClearOne claims that National Union underwriters are trained to spot the "red flags" in its financial statements and "knew or should have known" of ClearOne's misstatements and likely priced the risks of the irregularities into the premium charged ClearOne for coverage. ClearOne avers this knowledge of the misrepresentation precludes reliance upon the financials and should estop rescission of the policy. Nevertheless, we agree that National Union conducted a reasonable inquiry into the red flags in ClearOne's financial statements. After the insurance application was submitted, Brady Head, National Union's lead underwriter, sent follow-up questions regarding National Union's concerns to ClearOne via email. Head received a call from Susan Strohm, ClearOne's CFO, indicating that there had been no non-compliance issues with ClearOne's revenue recognition practices and that its financial statements had been certified as accurate under Sarbanes-Oxley. ClearOne does not challenge this assertion. Instead, ClearOne claims that Strohm's call actually heightened Head's concerns. This is unfounded in the record even in the light most favorable to ClearOne. To the contrary, while they discussed some problems with accounts receivable and inventory levels, Head testified that Strohm answered his questions "in a satisfactory manner." Aplts. App. at 3426. Moreover, there is no indication National Union was 1251 aware of the type of questionable accounting practices later revealed by ClearOne. No disputed facts suggest National Union failed to investigate adequately the financial information it was provided. Consequently, we perceive no error in the district court's findings on reliance and equitable estoppel. * * Accordingly, we find no genuine issue of material fact as to (1) the existence of a misstatement, (2) materiality, and (3) reliance. We remand, however, on the limited question of whether ClearOne's financials were innocently presented to National Union under Utah law. B. The Severability Clause Next, we turn to the claims related to the severability clause. ClearOne argues the policy's severability clause prevents National Union from rescinding its policy ab initio and so partial coverage under the policy would survive any rescission. National Union argues the severability clause is irrelevant to the rescission analysis. Since we remand on the question of whether the misstatements supplied to National Union were innocent, and whether any knowledge might be attributed to the officers and directors, we cannot decide the precise question raised by the parties on appeal. But several points regarding the severability clause are clear at this stage in the litigation. First of all, whether a severability clause precludes rescission is a fact intensive, case-by-case inquiry dependent on the precise language of the severability clause and the facts of the misrepresentation. While severability clauses may in general limit the ability to rescind an insurance policy, in this case, the language of the severability clause does not preclude rescission of the insurance policy in its entirety. The severability clause in National Union's application provides, It is further agreed that in regard to the applicability of questions 8, 9, and 10 above, the facts pertaining to any knowledge possessed by any Insured (other than the knowledge and/or information possessed by the person(s) executing the application) shall not be imputed to any other Insured Person; only facts pertaining to and knowledge possessed by any past, present or future chairman of the board, president, chief executive officer [CEO], chief operating officer [COO], chief financial officer [CFO] and General Counsel . . . of the Organization shall be imputed to the Organization. Aplts. App. at 3680. By its language, the clause unequivocally applies only to three specific questions in the application Questions 8, 9, and 10. As we found above, the misstatement at issue was the inclusion of a falsely stated 10-K Form submitted pursuant to Question 14 of the application. See id. Accordingly, the severability clause does not cover ClearOne's misstatement and it would be ineffective against National Union's rescission of the insurance policy in its entirety should the financials be deemed to be a non-innocent misrepresentation. ClearOne invoked In re HealthSouth Corp. Ins. Litig., 308 F.Supp.2d 1253 (N.D.Ala.2004), in support of its position. In HealthSouth, the court held that insurers were precluded from rescinding a policy ab initio where the policy contained a severability clause which limited rescission to individual insureds with personal knowledge of the misrepresentation. The court recognized that a policy's severability provision takes precedence over the applicable rescission law in the situation where the policy grants greater protection for the insured than the applicable law. Id. at 1270. 1252 Nevertheless, a striking difference between HealthSouth and the present case is the broad scope of the HealthSouth severability clause. In that case, the severability language of the policy stated, With respect to the declarations and statements contained in [this] written application(s) for coverage, no statement in the application or knowledge possessed by any Insured Person shall be imputed to any other Insured Person for the purpose of determining if coverage is available. Id. at 1261 (emphasis added). While the HealthSouth clause applied to the entire application, the clause in this case is far more limited, applying only to Questions 8, 9, and 10 of the application. ClearOne admits as much: "The severability clause contained in the National Union policy is a limited severability clause, as opposed to the full severability clause at issue in HealthSouth." Aplts. Br. at 26. Thus, the severability clause does not appear to cover the false financials included with the application pursuant to Question 14. Since we find ClearOne's argument on this record unpersuasive, we need not address National Union's rebuttal argument employing Cutter & Buck v. Genesis Ins. Co., 306 F.Supp.2d 988 (W.D.Wash.2004), except to say that the severability clause in that case was even more broad than the one here and the district court still found full rescission by the insurer was not prohibited. Id. at 1011. C. Survival of Other Claims Finally, we consider Bagley's breach of contract and tort claims and ClearOne's affirmative charges against National Union. ClearOne and Bagley maintain that (1) the district court erred in dismissing Bagley's claims based on its interpretation of "loss" under the policy, and (2) the district court should not have dismissed ClearOne's bad faith and punitive damages claims. At the outset, we note, should the district court conclude that rescission ab initio of the policy was proper on remand, then neither Bagley's nor ClearOne's affirmative claims would survive since the effect of rescission would be to nullify the policy. The policy would be ineffective and National Union would have no tort or contractual duty to ClearOne or Bagley to serve as a basis for these claims.[7] While we also agree with the district court's disposition of the loss question, the parties' bad faith and punitive damages claims will turn on the question of rescission. 1. Bagley's Claims ClearOne and Bagley maintain the district court erred in dismissing Bagley's various counts related to his claimed "loss" 1253 under the policy. Bagley seeks coverage based upon the dilution in value of his ClearOne stock attributable to the issuance of 1.2 million additional shares of stock in settlement of the class action. Although a ClearOne shareholder, the settlement precluded him, as a settling defendant, from receiving any of the shares distributed to shareholders. National Union denied him coverage based on the rescission of the insurance policy. Bagley argues that National Union could only properly rescind his individual coverage under the policy if it could prove that either Bagley or Flood knew of ClearOne's misstatements in its 2002 financials. Furthermore, Bagley argues that the district court incorrectly concluded (1) that "[t]his injury is the same injury suffered by all other shareholders;" and (2) Bagley's injury is not one suffered by him in his capacity as a director, but only in his capacity as a shareholder. Order & Mem. Decision at 29, Aplts. App. at 7024. We agree with the district court that Bagley's loss is attributed to his status as a major shareholder, not as a director of ClearOne. According to the policy, "loss" does not cover "any amounts for which an Insured is not financially liable or which are without legal recourse to an Insured." Aplts. App. at 3693. The dilution of his ownership share in ClearOne by the settlement does not relate to or implicate his financial or legal liability as a director of ClearOne. For example, if Bagley was simply a director with no shares in ClearOne, he would have suffered no loss from the settlement under the dilution theory. His claimed "loss" is a distinct and direct injury resulting only from his status as a ClearOne shareholder, not as a ClearOne director. Accordingly, Bagley's "loss" was not covered by the policy. In consequence, we hold that National Union did not breach the express terms of its policy nor did it violate the implied duty of good faith and fair dealing. 2. ClearOne's Claims ClearOne also argues that the district court committed reversible error in failing to address its bad faith and punitive damages claims. According to ClearOne, National Union violated the implied duty of good faith and fair dealing, which inheres in every contract as a matter of law, requiring National Union to "diligently investigate the facts [of ClearOne's] claim[,] . . . fairly evaluate the claim, and . . . thereafter act promptly and reasonably in rejecting or settling the claim." Aplts. Br. at 51 (citing Black v. Allstate Ins. Co., 100 P.3d 1163, 1168 (Utah 2004)). We agree with ClearOne that the district court failed to address these claims. The district court's failure was justifiable considering its holding that the insurance policy was rescinded. Nevertheless, since we remand on that issue, the district court will also have to reconsider these claims on remand. IV. Conclusion For the foregoing reasons, we REMAND the following questions to the district court: (1) whether submission of false financial statements in ClearOne's application met the scienter requirement under Utah law; and (2) whether ClearOne's bad faith and punitive damages claims against National Union survive summary judgment. We AFFIRM the district court's order with respect to all other issues. NOTES [1] Question 8 asks, "Has there been or is there now pending any claim(s) or actions against or investigation(s) of: (i) the Applicant . . .; and/or (ii) any person proposed for insurance in his or her capacity as an Executive of . . . the Applicant. . . ." Aplts. App. at 3678. Question 9 requires the Applicant to warrant that "(a) No Executive has knowledge or information of any act, error or omission which might give rise to a Claim or Crisis under the proposed policy. . . . (b) [T]he Applicant . . . has [no] knowledge or information of any act, error or omission which might give rise to a Securities Claim or Crisis under the proposed policy. . . ." Id. Question 10 asks a series of questions regarding potential liabilities that may give rise to a claim under the Policy. Id. at 3679. [2] On January 21, 2003, ClearOne issued a press release which stated: At this time, the Company's financial statements for the fiscal years ended June 30, 2001, and June 30, 2002, and for the quarters ended March 31, 2001, through and including Sept. 30, 2002, are under review. At this time, investment decisions should not be made based on these financial statements, or on the auditor's report included in the Company's 2002 Annual Report as filed on Form 10K. In addition, the guidance given by the Company on Oct. 23, 2002, for the fiscal year ending June 30, 2003, should be treated in the same manner. ClearOne Communs. Inc. v. Lumbermens Mut. Cas. Co., 2005 WL 2716297 at 7, 2005 U.S. Dist. LEXIS 26187 at 23-24 (D.Utah Oct. 21, 2005). In its August 18, 2005 10-K filing with the SEC, ClearOne restated its financials for the fiscal years 2001, 2002, and 2003, and offered an explanation for the restatement. The 10-K filing read: This report contains . . . our restated audited consolidated financial statements for the fiscal years ended June 30, 2002 and 2001. In connection with the restatement, we performed a comprehensive review of our previously issued consolidated financials statements for fiscal years 2002 and 2001 and identified a significant number of errors and adjustments. The restated consolidated financials statements . . . resulted in cumulative net reductions to stockholder's equity as of June 30, 2002 and 2001 of approximately $17.4 million and approximately $3.8 million, respectively, and reductions in previously reported net income for the years ended June 30, 2002 and 2001 of approximately $14.1 million and $3.9 million, respectively. Id., 2005 WL 2716297 at 7, 2005 U.S. Dist. LEXIS 26187 at 24-25. ClearOne gave this explanation for its errors: We have a material weakness with respect to accounting for revenue recognition and related sales returns, credit memos, and allowances. Our accounting policies and practices over revenue recognition and related sales returns, credit memos, and allowances were inconsistent with generally accepted accounting principles in the U.S. (GAAP). . . . Related sales returns and allowances, rebates, and accounts receivables were also misstated as a result of the errors in revenue recognition. Id., 2005 WL 2716297 at 7, 2005 U.S. Dist. LEXIS 26187 at 25. For a detailed account of ClearOne's accounting irregularities, see id., 2005 WL 2716297 at 5-7, 2005 U.S. Dist. LEXIS 26187 at 11-24. [3] In requiring some level of bad faith before a misstatement may serve as a basis of rescission, the Utah court acknowledged the split in authority among the states on this issue. See Derbidge, 963 P.2d at 792. In many jurisdictions, an innocent misrepresentation will permit an insurance policy to be voidable. See 6 Couch on Ins. § 82:34. [4] The corporate officials' certifications of accuracy included in the 10-K Form was expressly prefaced with the qualifying language "[b]ased on my knowledge." Aplts. App. at 7022. [5] A warranty in the law of insurance is a statement or stipulation in the policy which is breached unless absolutely true or literally fulfilled. Zolintakis v. Equitable Life Assurance Soc., 97 F.2d 583, 586 (10th Cir.1938) (applying Utah law). An affirmative warranty affirms the existence of a fact at the time the policy is entered into. Id. [6] As a general matter, a corporate policyholder should not be able to defeat a bid for rescission based on misrepresentation by having a director ignorant of the company's improper accounting sign the insurance application while other directors fully aware of the misrepresentations sit idly by. [7] In the realm of contract law, rescission negates the existence of the contract. Ocean Accident & Guaranty Corp. v. Meek, 61 Utah 426, 215 P. 810, 810-11 (1923), provides, Generally speaking, the effect of rescission is to extinguish the contract. The contract is annihilated so effectually that in contemplation of law it has never had any existence, even for the purpose of being broken. Accordingly, it has been said that a lawful rescission of an agreement puts an end to it for all purposes, not only to preclude the recovery of the contract price, but also to prevent the recovery of damages for breach of the contract. [T]he rescission of a contract while in the course of performance destroys or annuls any claim which either of the parties might otherwise have in respect of performance. Where a contract has been rescinded . . ., the parties are as a general rule restored to their original rights with relation to the subject-matter, and no action for breach can be maintained thereafter, nor are the parties bound by the contract with reference to their subsequent actions.
H6miirabIe'James E Kllday, Director MotorTransportation'Division Railroad Commission of Texas Austin, Texas Dear Sir: Opinion NO 0-4418 Re: Authority of the Railroad Com- mission to divide a specialized motorcarrier certificateand to approve the sale of a portion . ..~ thereof under the described facts. ~. Pef%iltus to-quote your reient letter requestingan opinion from this department..It reads: "The Commissionhas your opinions Nos. O-4246 and O-4380 &i&'hold'~tliatthe'RallroadComUssion of Texas does not hWQ'autlibrXty55 apgroirethe dlVSsion of a ,Speclallzed MdtotiCWrSei-mCertlfi6ate _ ~~.. Where under the dlvlsltineach.of thC'cbtitifi&tbswould retain the right to transport house- hold goods and used office furniture and equipment. "You will note under the amended applicationfiled by the applicant dated February 10, 1942, Paragraph2, reads as follows: "'It is.deslredand herein petitioned that said Certificate be divided into .two (2) parts, one part authorizingthe transportationof household goods and used furniture from Houston to all points In Texas and from all points in Texas to 'Houston. The other part to authorize the transportation of all other commodities set forth In said Certificate save and except the right to transport household goods and used furniture.' "Please give us your opinion In view of this amended appli- cation whether the Commission would have the authority to approve the division of a SpecializedMotor Carrier Certifi- cate where one part of the certificate after division would retain no authority to transport certain commoditiesauthorized in the original certificate. In opinion No. O-4246 by this department, to which you refer, it was stated: Honorable James E. Kilday, Director, Page 2 (~~-0-4418) "InOpinion Ro. O-1096 ~thisdepartmentupheld'the authority of~the'Railroad~Cokimisslonto approve; under certain condi- tions the sale of aportion of a'comrhoncarriermotor certi- ficate of 'convenienceand nedessity under Section.5, Article gllb,'Vernon'SAnnotatedCivil Statutes. The question deci- ded in this opinionwas involved In the case of Houston and Rorth'TexasMotor Freight Lines, Ind., et al vs. W .A. John- son,._. 'etCal,detiided.bytheGalveston Court of Civil Appeals on the 11th day'df 'De&iiber,1941: The court upheld the action of the Commissionin approvlng'thesale of a portion df"such certificateunder the conditionsand facts pre- sented.**" The dase referred to is at this time before the Supreme Court 6f‘TexaS . i.ipon'thi'grantingof a.Writ'of Error on "Point One," whichdoes not'.involve‘the question of the-'powerof the Coiiiniissionto .approvethe ~saleof a portion~of a common c&r- PSefXiotof~'caFrieti ceftificate'ofconvenienceand.necessity piiis'~~‘d~dn'b;y'.the.Cdri~ of‘Clvll'Appeals. Because of the s~il~rity'~iri'thd~l~~ge~df~S~ctiori‘~'~f~A~tlcll'"gllb, Virddii~s~Annotated Civil~Statiites;lnvolved'ln~thlscase td'thatof Sectlon~5a(a);'as'amended '~yjySedtiLori'4.0f'House I3331351;.A~t,s~~of-the'.47th.~~isIature, _ pertaining to'the i%lS of ~sBn ~iiispeci~liied-~~to~.cal;rSe~ .eHlij.co8(t&&& .~~e. certifibates;' .bklxe+e,~~rit;rtis the“dec5.l .thcan~~ef.td __.. . the'qdestlonsyou ha~i‘submi~tid;‘Undef“the'hbldSrig of the GU.leZ?ton~'Oourtyou would; In our opinion, be authorized to. dIvlde-a%pecialized-motorcarrier certificateIn the manner 'sitout in the ~amendedapplicationas described in your letter., and-approvethe sale~of a portion thereof, If otherwise per- mi,sslbleunder the provisionsof‘Section 5a(a), which reads: "Ahjr‘~&ertlfScste held, owned, or obtained by any motor carrier operating as a ~spei3.Cllzedmotor carrier' under the provl- &ions-'of~thisAct, may.be sold, assigned, leased, transferred,' Sirlhheritedj'provided, however, that any proposed sale, lease; assignment,or transfer shall be first presented In wi%tlng to the Commission for its approval or disapproval, and the Commissionmay dlskpprove such proposed sale, asslgn- ment, lease, or transfer If it be found and determined by the Commissionthat such proposed sale, assignment, lease, or transfer is not In good faith or that the proposed purchaser, assignee, lessee, or transfereeis not able or capable of kontlnulngthe operation of the equipment proposed to be sold, assigned, leased, or transferredin such manner as to render the services demanded by the public necessity and convenience in the territory covered by the certlfiaate,or that said Honorable James R. Kilday, Director, Page 3 (~~-0-4418) .'~ “j:..:': ,, I'i' . proposed sale, assignment,lease, or transfer.16not best for the'publldInterest; the 'Conimission;in a$prOving or disapprovingthe sale, assSgiiment;'lease; or transfer 'of any certificate;maytake into consSderatlbnall of‘the requirements'and~qualifikations of a regular applkant re- quired in'this ACt and apply same as necessary qualifldations of any proposed -purchaser,assignee, lessee, or transferee;**." The CoPrmlsslon may therefore disapproveanysale of a speclal- Szed'motorcarrier~'certlflcate, or a portion thereof, unless St flnds.the folloting facts: (1) 'Thatthe'proposedsale Is made'in -good'falth;. (2)‘thatthe proposed purdhaser is able to Continui.'the-operation of the equipment'proposedto,be~sold Sn'sukh manner as to meet the public -Wnvenience and necessity tiistent'ln~thepremises; (3) that%he'proposed'saIe~is _ bests for the~publScinterest; .axid (4).'that:thejpurchaserpossesses the requisitequalificationsof a regular applicant. . .' , lq..+do~ssg~&jsay, and'stiould, accordinglySnquire'idtothe .facW'conciMiSngthi'proposedsale and make the flndSxigs'd&med by the"LeglslatuiWtd.bd'ofimIW3AuiCe:"In this connedtion We call'your attentSon to'~the'dealaratSdn"of"'polSky~'dontaSned SnXWtSon 1~~of~House'RSll'No~ 351'whereln It 1,ssaid of specialized motor - _- .- - carrier _., operations: ' " to 'regulatesuch.cari%ersin the.publlo interest to ~he'e~d't~~t"the‘higharays'may begrendtred'safer'forthe use b;f-tK~-gehd~al‘piiblSc;.~h:h8t the wear‘of such hIghWays may be of traffic on the highways may be .I i;lad~~~;~t~a~'ctili~~stlon minimized, and that the use of the highways may be re- Ctrlcted'to.theextent required by the necessitf of the general public; provide regulation for all common carriers, fiithoutunjust discriminations,undue preferences or advan- tages, unfair or destructivecompetitivepractices; improve the regulationof suoh motor carriers and other oommon oar- riers; preserve the comon carrier servlng.thepublic In the 'transportation of commoditiesgenerally over regular routes; develop and preserve a complete transportationsystem pro- perly adapted to the needs of the commerce of this State and of the National Defense Program". The Railroad Commissionobviously should not, by approving the sale 0f.a specializedmotor carrier certificate,or a portion thereof, authorize an operation which has.been discontinued by the.originalowner of the certificate. In this connection we call your attention to the language of Mr..Justice Critz of the Supreme Court in the case of Railroad Commission VS. Honorable James E. Kil,day, Director, Page 4 (~~-0-4418) Texas & Pacific Rail”’ y Company, et al, 157 S. W. (26) ‘622, didided ‘Noverhber~ 19,x 941, wherein the court was.ccnsSderSng House.., Bill No. 351: “If we ere to construe the act of 1941 as authorizing ‘then Usuanc ii of new csrtlflcates based on old permits, r&gad- less of whether op not such old permits were being operatCd Under;a very grave qukatioti as.to’the constStutl6nallty of * the 1941 act would be.@resented, but, as alrekdy shown, we donstrue euch abt as ofily authorizing new certificates based 6fi old permSt& where the old’pWmlts were being operated. Wd&ti on ‘January 1; 1941. So ‘contitrued, the’act of 1941 k&Wits to ‘a-reason&ble La~Sslatlvb“findl~g‘of convenldrice tid fiecbsrjSty~‘aa apPlSbd to 6x13petiits’whlch are authorleed to be la?uea,?a~ a baale ,.. for new,certlflcates.* + +I’ Iii thib Snetaht ‘a@pl$@s;tion the proposal. is made to’ dlvlde the dpddiallked’mdt6~ balm?idr’certifloate aB tb tiiat’part’author- ltUigPthi tSiiap6titdHon ‘of’ liotisekiold goods ana uaed’offloe ~QiitlitursYiiidni’~Hdrliot6~“t6’al~“polnter In Texae’and iMu all . ‘or;hti“m’Tejuij‘tii’Ho~dtijn;‘ond to ‘Bell such pbrtfon. If au E“rhltitdti of’ ~a6t’the’t~urspostatlon of these partioular oonl- ‘~6dltIlii’kira bd~ti’dib~dntinued or Abandoned b the holder oi tbr’~o~l~lhL1”be~tfildatr, it would appear dou3:tful that, :the ?‘~~~~d’ .~dorivrnlinor ‘Ed nromrrity required auoh operatioll’and hat the ralr oc tranrEor therrol would be bht for the pub- lie lntorout. .,.I_ Oon6ltitrht with throo oonrldrrationr, and upon the authority of~the oabocof HouPton and North Toxao Motor Freight Llnre, Ino,, at al, VP, W, A, Johnoon, .It &l, a8 it now rtandr pou LrQroo oot$ull adviood that it lo tho o Won ol thin do- &Mfnon #. .~?that 6 e ifI RWroad OommLoolon wouPd b o luthorlsod to lvldo tho cpoolallaad-mobor oarrlor,oortilioabo an dororlbod ln pour loWor and~bp approve tho ralo OF ruoh portion thrroof, Your8 vary truly AF?ROVED MAR 86, lgb ATTORNEY QENERAL OF TEXAB FlRST ASSISTANT w 201110 0. stiakley ATTORNEY QENERAL ~Aeeletant
609 F.2d 502 Muhammadv.Hilton No. 79-1238, 79-1239 United States Court of Appeals, Third Circuit 10/3/79 1 D.N.J. AFFIRMED
538 F.2d 1084 Larry James MENARD, Plaintiff-Appellee,v.PENROD DRILLING COMPANY et al., Defendants-Appellants.The Charity Hospital of Louisiana, Intervenor. No. 75-1591. United States Court of Appeals,Fifth Circuit. Sept. 15, 1976. Marcel Livaudais, Jr., New Orleans, La., for defendants-appellants. Darryl J. Tschirn, Gothard J. Reck, Metairie, La., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Louisiana. Before RIVES, GOLDBERG and GEE, Circuit Judges. RIVES, Circuit Judge: 1 Larry J. Menard, the plaintiff, born on February 27, 1953, was 19 years of age when he got a job with the defendant, Penrod Drilling Company (hereafter Penrod) as a roustabout working on a submersible drilling rig. In the very early morning hours of October 10, 1972 (about 10 months after his employment by Penrod), Menard was working alone in a storage room of the rig, lifting metal "inserts"1 off the floor and putting them on a box or shelf about eye level high. Menard testified that he told his tool pusher, Mr. Haley, the inserts were too heavy for one man and "I needed help" but he said "to do the best I could because (we were) short-handed." (App. 462.) Mr. Haley testified differently. Menard further testified that he picked up five or six of the inserts and put them on the shelf or box. The next one slipped in his grasp, he fell backward and down with the insert forcibly striking his abdomen.2 Menard's tool pusher, Mr. Haley, filled out an accident report (App. 224). 2 According to Menard, when Haley declined to have anyone drive Menard some 200 miles to his home in Kaplan, Louisiana, Menard, despite much pain, went ashore, got in his car at the dock, and drove home arriving between 3:00 and 4:00 P.M. He stayed in bed at home for several days and on October 15, 1972 was admitted to the Kaplan Memorial Hospital (App. 505). A surgeon, Dr. Trahan, on October 17, operated on Menard for a bilateral hernia. Menard was discharged from the hospital on October 25 and continued treatment as an outpatient for several weeks (App. 507). 3 On November 10, 1972, Menard's attorney filed his complaint titled "SEAMAN'S SUIT UNDER THE JONES ACT" (App. 5). The jury did not agree on a verdict at the first trial, and on November 30, 1973 a mistrial was ordered. 4 Before that trial, Menard had been married twice. His first marriage ceremony was performed on January 20, 1973 and about one week later, on January 28, his bride permanently separated from him stating as her reason that he was "not a man" (App. 509, 510). Menard testified that he got married to another woman in October, 1973, the month before the first trial, but continued to have sexual problems up to the time of his testimony on the second trial. 5 The second trial occurred on December 12 and 13, 1974. The jury returned a special verdict3 as follows:Judgment was entered upon that verdict (App. 271) against Penrod and its insurer; the defendants' post-trial motions were denied; and the defendants appealed. We come to the issues raised on appeal by defendants-appellants. MENARD'S STATUS AS A SEAMAN 6 The district court, at the time of the first trial on November 30, 1973, granted plaintiff's motion for summary judgment as to the status of Penrod's rig # 62 being a vessel in navigation and as to Menard's being a seaman and member of the crew of the said vessel (App. 169). In addition to supporting that motion by a lengthy affidavit (App. 175, 176), the plaintiff introduced a stipulation of the parties to the following facts: 7 "1. That at the time of the plaintiff's alleged injury he was employed by Penrod Drilling Company; 8 "2. That at the time of plaintiff's injury he was employed by Penrod Drilling Company aboard their Rig # 62; 9 "3. That Rig # 62 was a movable drilling barge (jackup rig) owned by Penrod Drilling Company; 10 "4. That plaintiff was injured while aboard Rig # 62 while in the course and scope of his employment with Penrod Drilling Company;"5. That Rig # 62 had been completely constructed and delivered to Penrod Drilling Company some months before plaintiff's alleged accident and injury, earlier that year; 11 "6. That for some time it had been in full operation of drilling for oil in the Gulf; 12 "7. That at the time of plaintiff's alleged injury, plaintiff and the rest of the crew were preparing Rig # 62 for an overseas tow, to its next drilling location." (App. 177.) 13 The defendants offered no evidence in opposition to the motion. The plaintiff's affidavit and the stipulation of the parties sufficiently established the absence of a genuine issue of fact to prevent the defendants from relying upon their denials in pleading and to put them to their defense by affidavits or otherwise, setting forth specific facts to show the existence of a genuine issue for trial. See Rule 56(e), Fed.R.Civ.P. 14 The defendants had a further opportunity to offer evidence upon the second trial, or to object to the court's repeated instruction to the jury that "I instruct you that the plaintiff, Larry Menard, was a seaman and that he was employed aboard a vessel within the meaning of the Jones Act." (App. 607, repeated at 631.) When the district judge in the absence of the jury called on counsel for objections to the oral charge, defense counsel made a simple objection to the omission of an unrelated requested charge and characterized that as "the only objection I have."4 SUFFICIENCY OF THE EVIDENCE 15 The defendants' motions for directed verdict, for judgment n. o. v., and for a new trial were denied. 16 The sufficiency of the evidence to support the verdict is for the jury in the first instance and, under the Seventh Amendment, re-examination of facts found by the jury is strictly limited to the rules of the common law. That constitutional requirement is reinforced by statute in cases brought under the Federal Employers' Liability Act and those under the Jones Act. Boeing v. Shipman, 5 Cir. 1969, 411 F.2d 365, 371. (See 46 U.S.C. § 688.) 17 The jury and the district judge were in better position than is this Court to judge the credibility of Menard's testimony. Ultimately the case turns on whether Menard testified truthfully or falsely. The jurors obviously believed his testimony. The able district judge declined to set aside the jury's verdict. The evidence of the defendants' negligence in failing to provide a competent driver of an available forklift or to instruct plaintiff how to operate it and in refusing plaintiff's request for help was sufficient to support the jury's verdict. 18 The judge declined also to hold the amount of the verdict excessive. This Court has held that the court's power to grant a new trial for excessiveness of a verdict, or to condition a new trial upon consent to a remittitur, is "reviewable only for a grave abuse of discretion." Bonura v. Sea Land Service, Inc., 5 Cir. 1974, 505 F.2d 665, 669, 670; reh. en banc den., 1975, 512 F.2d 671. In Gorsalitz v. Olin Mathieson Chemical Corporation, 1970, 429 F.2d 1033, 1045, we quoted with approval Judge Skelly Wright's practical test of "abuse of discretion" in a situation like that here presented: 19 "There has been much discussion of the content which should be given to the elusive phrase 'abuse of discretion,' with the weight of learning against appellate reversal except in relatively rare cases. 20 "This learning has largely arisen from consideration of cases in which motions for new trial especially on the ground of excessive verdict have been denied. Two factors unite to favor very restricted review of such orders. The first of these is the deference due the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record. The second factor is the deference properly given to the jury's determination of such matters of fact as the weight of the evidence and the quantum of damages. This second factor is further weighted by the constitutional allocation to the jury of questions of fact. 21 "Where the jury finds a particular quantum of damages and the trial judge refuses to disturb its finding on the motion for a new trial, the two factors press in the same direction, and an appellate court should be certain indeed that the award is contrary to all reason before it orders a remittitur or a new trial. . . . " 22 Taylor v. Washington Terminal Company, 1969, 133 U.S.App.D.C. 110, 409 F.2d 145, cert. den. 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85. 23 The jury's verdict (App. 264) stated "the amount of plaintiff's damages" in one lump sum "$250,000," and the record discloses no request for separation into the various items of damages. The jury found that the plaintiff's negligence contributed 25% to his injuries. There was ample evidence that the plaintiff suffered severe personal injuries and that he had been unable to work since his injury, and would probably continue to be unable to work for a long time. 24 Mr. W. E. Groves, who qualified as "a consulting actuary," held two master's degrees one from L.S.U. in Business Administration and the other from the University of Michigan in Actuarial Mathematics (App. 528). Groves estimated plaintiff's work life expectancy at the date of injury to be 39.7 years; his annual wage up to December 31, 1973, to be $6,000, which for 39.7 years would amount to $238,200. The percent value of that sum at a discount rate of 41/2% would be $110,100 (App. 532, 533). Groves testified further as to the possibility that the plaintiff might advance through the ranks to a tool pusher, as had been done by Mr. Haley, Menard's tool pusher. Groves selected 41/2% as a discount rate and estimated "that the man would have to get at least 2% per year, on the average, increase to maintain the same buying power that he has to-day." (App. 537.) Groves then estimated that the present value of the plaintiff's total loss of earning capacity would be $312,954 (App. 539). 25 In addition to damage for loss of earning capacity, the jury could have found Menard entitled to recover damages for having been rendered impotent, as well as for physical pain, mental anguish, and humiliation. Recovery vel non for each of such items of damage is dependent upon the credibility to be accorded Menard's testimony. Such credibility was primarily for the jury's determination, subject to constitutionally limited review first by the trial judge and then, on appeal, by this Court. We agree with the implicit holding of the trial judge that the jury was not swayed by sympathy, passion, or prejudice when it estimated Menard's total damages at $250,000, and further found that Menard himself was guilty of negligence which contributed 25% to his injuries. Giving due weight to the verdict of the jury and to the rulings of the trial judge, we cannot, under the applicable rules of review, hold the jury's verdict excessive. 26 Finding no reversible error in the record, the judgment is 27 AFFIRMED. GEE, Circuit Judge (concurring): 28 The opinion of the court implicitly and, I think, correctly decides that permitting this jury to consider future inflation as a factor in calculating damages was not plain error, necessitating a reversal despite the absence of an objection. That it would have been reversible error had an objection been made is settled in this circuit by Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th Cir. 1975) (en banc). But none was, the opinion is correct both here and otherwise, and I concur in it. 1 Metal drilling inserts "are the type of tool that you use to hold your pipe up to keep it from falling down in the hole whenever you are making a connection or screwing in another joint." (App. 559.) "The insert is described as a metal piece of drilling equipment varying slightly in size, but generally being about two to three feet long, six inches thick and somewhat triangular in shape, and of weights varying from 100 to 160 pounds." (Appellants' brief, p. 4.) 2 Menard described the accident in detail as follows: "Q. Did you fall to the ground? "A. Yes, when it hit me, I tried to catch it, and it fell straight to the floor with me. I couldn't move at all. It just smashed me, it went right on the bottom part, right here, the lower portion, and it smashed me up against the floor. Then I screamed for help, and this guy that was in the two storage compartments away from me, he was doing something in the next room, and he came and he tried to help get it off. When he got up there, I told him to try to lift it off of me because if was smothering me. I couldn't breathe. "He lifted, but he couldn't lift it high enough and it fell down on me again. I told him to lift it up enough so I could roll out. When he lifted it up, I like slid from under. Then he went for the driller on duty that night. . . . " (App. 465.) 3 Under Rule 49(a), Fed.R.Civ.P 4 However, we think that the defendants did not have to object to the instruction in order to preserve their right to appellate review of the summary judgment grant
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-626V Filed: June 1, 2018 UNPUBLISHED MARY HAVENER, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder SECRETARY OF HEALTH AND Injury Related to Vaccine HUMAN SERVICES, Administration (SIRVA) Respondent. Braden Andrew Blumenstiel, Blumenstiel Falvo, LLC, Dublin, OH, for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 Dorsey, Chief Special Master: On May 9, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following a tetanus, diphtheria, acellular pertussis (“Tdap”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 4, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for a SIRVA. On May 31, 2018, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $80,287.00. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). award. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner a lump sum payment of $80,287.00 in the form of a check payable to petitioner, Mary Havener. This amount represents compensation for all damages that would be available under § 300aa-15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS __________________________________________ ) MARY HAVENER, ) ) Petitioner, ) ) No. 17-626V (ECF) v. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________________________________________) RESPONDENT’S PROFFER ON AWARD OF DAMAGES On December 19, 2017, respondent, the Secretary of Health and Human Services, filed his Rule 4(c) Report conceding entitlement to compensation in this matter, and on January 4, 2018, the Court entered its Ruling on Entitlement, finding petitioner Mary Havener entitled to Vaccine Act compensation. Respondent now proffers that petitioner receive a compensation award consisting of: a. A lump sum of $80,287.00 in the form of a check payable to petitioner, Mary Havener, 1 which amount represents compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled; 2 and, b. A lump sum of $5,432.57, in the form of a check payable jointly to petitioner and her counsel, which amount represents compensation for petitioner’s attorneys’ fees and costs under 42 U.S.C. § 300aa-15(e). 1 Petitioner is a competent adult. No guardianship is required. 2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. Petitioner agrees with the proffered award of $80,287.00 for her compensation, and $5,432.57 for her attorneys’ fees and costs, and has further represented in compliance with General Order No. 9 that she has incurred no personal litigation costs. Respectfully submitted, CHAD A. READLER Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division s/Voris E. Johnson, Jr. VORIS E. JOHNSON, JR. Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-4136 Dated: May 31, 2018 2
595 F.2d 1220 U. S.v.Poole*** No. 78-5680 United States Court of Appeals, Fifth Circuit 5/15/79 1 E.D.La. AFFIRMED * Summary Calendar case; Rule 18, 5, Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409 ** Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966
866 F.2d 1404 35 Cont.Cas.Fed. (CCH) 75,620 BETA SYSTEMS, INC., Plaintiff-Appellant,v.THE UNITED STATES, Defendant-Appellee. Nos. 87-1108, 87-1274. United States Court of Appeals,Federal Circuit. Jan. 31, 1989. William H. Gammon, Lewis, Mitchell & Moore, of Vienna, Va., argued for plaintiff-appellant. With him on the brief was J. Kevin Moore. Carol N. Park-Conroy, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for defendant-appellee. With her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Before MARKEY, Chief Judge, BALDWIN, Senior Circuit Judge, and NEWMAN, Circuit Judge. ORDER PAULINE NEWMAN, Circuit Judge. 1 Beta Systems, Inc. requests attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d) (1985), incurred in connection with Counts I and III of the Claims Court litigation and our decision in Beta Systems, Inc. v. United States, 838 F.2d 1179 (Fed.Cir.1988). That decision reversed the Claims Court's summary judgment on liability, and granted the relief requested by Beta Systems as to Counts I and III. Count II had been severed, and no fees with respect thereto are included in this petition. 2 The underlying dispute turned on interpretation of several clauses of a contract between Beta and the Army Troop Support and Aviation Materiel Readiness Command for the supply of certain tank/pump units. We agreed with Beta's interpretation of the contract on all material issues: i.e., that 70% of the total contract price was subject to the Economic Price Adjustment (EPA) clause; that it was the actual, not the conditional, First Article Approval that governed; that the aluminum alloy that was approved and used was not excluded from authorization for use; and that the price index set in section H-8 must comply with the DAR. These issues were the subjects of Counts I and III, and their resolution is pertinent to proceedings on remand. 3 * The government requests that we separate the fees incurred for each of the three counts. This has been implemented as to Count II. Counts I and III are somewhat interrelated, and while the majority of the litigation effort was required by Count I, the single issue of Count III was decided in favor of Beta. Since Beta prevailed as to both counts, no controlling purpose has been shown for requiring an additional remand in order to provide additional bookkeeping on these issues. See generally Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983). B 4 The government states that we should await the action of the Claims Court on remand.1 Title 28 U.S.C. Sec. 2412(d)(1)(B) provides that the fee petition must be filed within 30 days after "final judgment in the action." This apparently simple phrase has not been free of litigation, and Beta's timely filing of this petition after our final judgment avoided the possibility of dismissal for lack of jurisdiction, such as occurred in Allen v. Secretary of Health and Human Services, 781 F.2d 92 (6th Cir.1986). In Allen an attorney fee petition was held to be untimely and not within the court's jurisdiction because it was not filed until completion of proceedings on remand to the trial court. The circuit court held that its decision on appeal was the "final judgment in the action" because only limited proceedings were required on remand. Id. at 94. 5 This court in Skip Kirchdorfer, Inc. v. United States, 803 F.2d 711 (Fed.Cir.1986), rejecting the position of Allen, held that it is always timely to file a fee petition after the decision on remand. We have also entertained fee petitions following our judgment, as in Gavette v. Office of Personnel Management, 785 F.2d 1568 (Fed.Cir.1986) (in banc), wherein we awarded attorney fees although we had remanded the case for a calculation and award of backpay. Accord Massachusetts Fair Share v. Law Enforcement Assistance Administration, 776 F.2d 1066, 1068 (D.C.Cir.1985) (awarding attorney fees to party who established entitlement to relief on the merits of the claim, although remanding to the agency for further action). Cf. Vascera v. Heckler, 624 F.Supp. 1198, 1204 (D.R.I.1986) (claimant who secures remand for de novo hearing is not yet a "prevailing party"). 6 The purpose of the statutory requirement of finality is not to provide a basis for fatal misguess as to when a judgment will be deemed "final in the action": the purpose is to establish a reasonable procedure, avoiding piecemeal fee requests, yet serving the interest of justice. It is inappropriate to require major litigation to decide if a final judgment in the action occurred, whether the petition is filed after the appellate court's final judgment, as in the case before us, or is delayed until after completion of all proceedings on remand. The Allen decision shows the risks of following the procedure proposed by the government; and challenges on this basis are not unknown in this court, despite our ruling in Kirchdorfer. See, e.g., Covington v. Department of Health and Human Services, 818 F.2d 838, 840 (Fed.Cir.1987) (government taking position that Covington's filing of fee petition after completion of proceedings on remand, rather that after decision on prior appeal, was untimely). While we do not encourage piecemeal fee requests, we affirm that a prevailing party is not barred from filing a petition for recovery of attorney fees upon final appellate judgment accompanied by remand. 7 Since our judgment in Beta Systems settled the merits as to Counts I and III, leaving little for the Claims Court to do on remand, we will entertain this petition at this time. C 8 The government does not dispute that Beta was the prevailing party, but argues that the position of the government was "substantially justified", as that term is used in the EAJA and as elaborated in Pierce v. Underwood, --- U.S. ----, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). In Underwood the Supreme Court explained that Congress intended "substantially justified" to connote " 'justified in substance or in the main'--that is, justified to a degree that could satisfy a reasonable person", 108 S.Ct. at 2550, and was equated by the Court to "the 'reasonable basis both in law and fact' formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed the issue." Id. (citations omitted). The Court explained that Congress' usage of "substantially justified" was intended to command a higher threshold of justification than "reasonably justified", requiring only that a reasonable person could think the position correct even though it is not. Id. at n. 2. 9 In our decision on the Count I issues we observed: "Although the government asks that we affirm the court's analysis [concerning what percentage of the contract price was subject to adjustment], it offers no defense or explanation thereof, and points to no support in the contract or elsewhere for its reading." Beta Systems, 838 F.2d at 1181. Discussing the government's position that provisional First Article Approval is identical with final First Article Approval, a position that we termed legal error, we observed that "No authority for this position is offered by the government...." Id. at 1182. Other Count I issues were also deemed unsubstantiated as a matter of law. We conclude that these positions do not carry the requisite justification. For Count III, the government's position, which placed it in violation of the DAR, similarly does not meet the threshold justification contemplated in Underwood. 10 We conclude that the requirements of entitlement to attorney fees are met as to Counts I and III. D 11 The government asserts that the submitted time and expense documentation is insufficiently detailed. These figures have been amended and supplemented with additional time sheets, filling a gap identified by the government. They are typical billing records, showing time and charges, a description of the work done, and by whom. The accounting comports with the statutory and case law for such records; the government's generalized objection lacks substance. 12 Beta's counsel billed much of its work at rates higher than the $75 ceiling set in the EAJA. Counsel has averred, without contradiction, that its rates are customary and usual. We have been shown no basis for thinking otherwise. However, we are constrained by the Court's reasoning in Underwood, that the "special factors" referred to by Congress do not include a general market rate that is higher than the statutory ceiling. Id. 108 S.Ct. at 2553. 13 The fee petition as corrected, and updated to include costs incurred on the petition, is granted, subject to a maximum rate of $75 per hour. ACCORDINGLY, IT IS ORDERED THAT: 14 1. Beta is entitled to attorney fees and expenses under 28 U.S.C. Sec. 2412(d). 15 2. Beta shall file a corrected calculation with the court. 1 Both parties direct our attention to ongoing settlement negotiations, the government making the point that all is not over, and Beta suggesting that our decision may indeed be the last judicial word on the entire cause
249 F.2d 293 Robert Leon EUZIERE, Appellant,v.UNITED STATES of America, Appellee. No. 5664. United States Court of Appeals Tenth Circuit. Oct. 26, 1957. Robert B. Palmes, Denver, Colo., for appellant. H. Dale Cook, Asst. U.S. Atty., Oklahoma City, Okl. (Paul W. Cress, U.S. Atty., Oklahoma City, Okl., on the brief), for appellee. Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit judges. BRATTON, Chief Judge. 1 This appeal brings here for review an order denying a motion filed under 28 U.S.C.A. 2255 to vacate and set aside the judgment and sentence imposed upon one of the defendants in the court below. The indictment contained six counts. The first, fourth, fifth, and sixth counts charged that the defendants Robert Leon Euziere and Don Alden Stacks committed the offenses laid therein; and the second and third counts charged that the defendant Euziere alone committed the offenses specified therein. The defendants entered pleas of not guilty. Later such pleas were withdrawn. The defendant Euziere then entered a plea of guilty to the first and fourth counts; the defendant Stacks entered a plea of guilty to the first count; the other counts were dismissed; and the defendant Euziere was sentenced to imprisonment for a term of ten years on the first count, to imprisonment for a term of ten years on the fourth count, with provision that the two sentences should run consecutively, and to pay a fine of $2,000 on each count. By subsequent order, the fines were reduced to $1.00. 2 The defendant Euziere filed a motion under 28 U.S.C.A. 2255 to vacate and set aside the judgment and sentence imposed upon him on the ground that the court coerced him into entering the plea of guilty. A separate motion was filed for an order for the production of the defendant at the hearing on the motion to vacate and set aside the judgment and sentence. By a single order, the motion for the production of the defendant was denied, and the motion to vacate and set aside the judgment and sentence was denied without a hearing. The appeal was seasonably perfected from that portion of the order denying the motion to vacate and set aside the judgment and sentence. 3 The single question presented for determination is whether the denial of the motion to vacate and set aside the judgment and sentence constituted error. In order to determine the question in an understanding manner, it is necessary to review the pertinent facts and circumstances preceding and attending the entry of the pleas of guilty and the imposition of the sentence upon the defendant Euziere. Eight days after the return of the indictment, the defendants were brought before the court for arraignment. Addressing the defendants as boys, the court inquired whether they had a lawyer. The defendant Euziere replied that they were making arrangements for one but did not have him yet. The court thereupon stated that it was his duty to appoint an attorney for the defendants if they did not have one, and the court added that they needed a lawyer right then. The defendant Euziere then inquired whether they could have two or three days to see if they could employ Mr. Ralph Samara as their attorney. At that juncture, the Assistant United States Attorney advised the court that Mr. Samara had appeared as counsel for the defendants before the United States Commissioner. Thereupon, the court stated that it was necessary for the defendants to enter a plea at that time; that the case would be tried to a jury the following Tuesday; and that if they desired it, the court would appoint an attorney for them and he could discuss the matter with them. The defendant Euziere then stated that they had not reached an agreement with Mr. Samara respecting a fee. The court repeated that he would appoint an attorney to assist the defendants if they wanted that done, or they could enter a plea of not guilty. The defendants each then entered a plea of not guilty. The defendant Stacks requested a severance. The application for severance was denied and the case was set for trial on the following Tuesday. Immediately thereafter, the court stated to the defendants that it was fair to say to them that in the event they stood trial and were found guilty the court would feel that they should have the maximum sentence provided by law; that if they were not guilty, of course the court would not expect a plea of guilty; but that if they were guilty, and the court would know it when he tried the case, and if they were convicted, the court would expect to give them the maximum sentence because they had put the government to the expense of a trial when they were guilty. After the making of such statement, the defendant Stacks said that he would like to talk to an attorney. The court thereupon requested an attorney in the court room to confer with the defendants. Later in the day, the defendants and the attorney came before the court. The attorney stated that the defendants desired to allow their pleas of not guilty to stand, and he indicated that a motion to suppress certain evidence might be filed. The court replied that in the event such motion was filed, it would be heard in chambers preceding the trial on the day the case was set for trial. The defendant Euziere filed a motion to suppress. When the case came on for hearing on the motion to suppress and for trial, Mr. Samara appeared as counsel for the defendants. The motion to suppress was denied; the pleas of not guilty were withdrawn; the pleas of guilty were entered; and the sentence was imposed upon the defendant Euziere. Immediately after imposition of such sentence, request was made that it be modified to provide that the two periods of confinement should run concurrently rather than consecutively. In denying the request, the court stated that such defendant had received a lot of consideration; that if he had stood trial, the court would have given him sixty years; that he should be out of circulation because people who deal with narcotic drugs should not be permitted to have freedom; that the attorney had represented his clients well; and that they were leaving the court much better off than the court thought they would be when leaving. 4 Fundamental standards of procedure in criminal cases require that a plea of guilty to the charge or charges contained in an indictment or information be entered freely, voluntarily, and without any semblance of coercion. A plea of guilty interposed as the result of coercion is not consistent with due process and therefore a judgment and sentence imposed pursuant to such a plea cannot stand. Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; O'Hara v. People, 41 Mich. 623, 3 N.W. 161; People v. Brown, 54 Mich. 51, 19 N.W. 571; Flowers v. State, 90 Okl.Cr. 390, 214 P.2d 728; cf. People v. Banner, 5 Misc.2d 355, 164 N.Y.Supp.2d 53. We think it is clear that the statements made by the trial court were reasonably calculated to influence the defendants to the point of coercion into entering their pleas of guilty. 5 The order denying the motion to vacate and set aside the judgment and sentence imposed upon the defendant Euziere is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED FEBRUARY 1997 SESSION October 30, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk JEFFERY DEWAYNE ROACH, ) ) Appellant, ) No. 03C01-9604-CC-00155 ) ) Hamblen County v. ) ) Honorable James E. Beckner, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant: For the Appellee: Jeffery Dewayne Roach, Pro Se Charles W. Burson #12043-074 E-3 Attorney General of Tennessee P.O. Box 1000 and United States Penitentiary Elizabeth T. Ryan Lewisburg, Pennsylvania 17837-1000 Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General 113J W. Church Street Greeneville, TN 37743 OPINION FILED:____________________ AFFIRMED Joseph M. Tipton Judge OPINION The petitioner, Jeffery Dewayne Roach, appeals as of right from the Hamblen County Criminal Court’s summary dismissal of his petition for post-conviction relief.1 The trial court dismissed the petition, concluding that it was barred by the statute of limitations. We affirm the judgment of the trial court. The petitioner pled guilty to three counts of felony drug possession in 1981. On July 17, 1995, he filed the present petition collaterally attacking the three convictions. We agree with the trial court’s determination that the petition is barred by the applicable statute of limitations. See Arnold Carter v. State, No. 03-S-01-9612-CR- 00117, Monroe County (Tenn. Sept. 8, 1997) (for publication). Accordingly, the judgment of the trial court is affirmed. ______________________________ Joseph M. Tipton, Judge CONCUR: Jerry L. Smith, Judge Thomas T. Woodall, Judge 1 The petition is titled a “MOTION TO VACATE, SET ASIDE AND EXPUNGE RESTRICTIONS OF RIGHTS AND CON STITUTIONAL LAW -- EQUAL PROTECT ION -- CRIMINAL DISFRANCHISEMENT LAW AN D INFAMOUS LAW OF THE STATE OF TENN ESSEE AND EX POST FACTO CLAUSE TO APPLY IN THIS CASE AND OPINIONS OF THE ATTORNEY GENERAL OF THE STATE OF T ENNESSEE. T.C.A. (1994), VOLUME 7; T.C.A. 39-17-1307 OF STATE LAW .” The trial court properly treated the petition as one for post-conviction relief. 2
510 U.S. 961 In re Disbarment of Rios.No. D-1324. Supreme Court of United States. November 8, 1993. 1 It is ordered that Raphael Rios, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.
85 S.W.3d 469 (2002) GSC ENTERPRISES, INC., Appellant, v. Carole Keeton RYLANDER, Comptroller of Public Accounts of the State of Texas; and John Cornyn, Attorney General of the State of Texas, Appellees. No. 03-01-00409-CV. Court of Appeals of Texas, Austin. August 30, 2002. 470 Ira A. Lipstet, Robert B. Gilbreath, Jenkens & Gilchrist, P.C., Austin, for Appellant. Jennifer C. Pointer, Assistant Attorney General, John M. Hohengarten, Deputy Division Chief, Austin, for Appellees. Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PURYEAR. DAVID PURYEAR, Justice. Appellant GSC Enterprises ("GSC") appeals from the district court's grant of summary judgment in favor of the Comptroller and the Attorney General (collectively "the Comptroller") and denial of 471 GSC's motion for summary judgment. GSC's appeal hinges on the interpretation of section 72.103 of the Texas Property Code. See Tex. Prop.Code Ann. § 72.103 (West Supp.2002). Because our interpretation of section 72.103 supports the district court's judgment, we will affirm. FACTUAL AND PROCEDURAL BACKGROUND GSC is a Texas corporation that issues, administers, and redeems money orders. It typically partners with small retail outlets such as convenience stores and independent grocers. Money orders have blanks in which the purchaser identifies the sender and the payee, but the retailer typically retains only the money order's amount and serial number. Most money orders are promptly redeemed, but a small percentage remain unredeemed. Purchasers of GSC money orders agree to pay a monthly service charge on unredeemed money orders. Prior to July 1998, GSC had a policy of charging one dollar per month from the date of purchase if the money order was not redeemed within one year of the purchase date. This policy was generally not enforced against retailers who accepted these money orders. After July 1998, GSC charged one dollar per month from the date of purchase if the money order was not used within two years of the purchase date. A service charge accrued until the money order was redeemed, the service charge exceeded the money order's face value, or the money order was deemed abandoned. GSC must track its unredeemed money orders and eventually report them to the Comptroller as abandoned property. At the time of the events germane to this lawsuit, the Texas Property Code deemed a money order abandoned five years after it was issued or five years after the last communication from the owner. Once a money order is considered abandoned, GSC must turn it over to the Comptroller. After a 1998 audit, the Comptroller issued GSC a deficiency notice for the money orders GSC surrendered in 1996 and 1997, stating that under the Comptroller's interpretation of the property code, GSC should not have withheld service charges from the money orders. GSC disagreed with the Comptroller's interpretation and in May 1998, filed a petition for declaratory judgment against the Comptroller. GSC deposited the contested funds in the court's registry. The Comptroller answered with a general denial and counterclaimed against GSC to recover the deficiency, plus penalties, interest, and attorney's fees. In 2000, the parties filed competing motions for summary judgment. After hearing the motions, the district court granted the Comptroller's motion and denied GSC's motion. By four issues, GSC appeals the judgment, claiming that the trial court erred (1) in its interpretation of the property code, (2) in granting the Comptroller's motion for summary judgment and denying GSC's motion, (3) in rendering judgment that GSC take nothing, and (4) in rendering judgment that the Comptroller recover penalties and interest. At stake is the $1,689,728.01 deficiency, plus accumulated interest, penalties, and attorney's fees.[1] DISCUSSION Standard of Review The parties in this case filed competing motions for summary judgment. When examining cross-motions for summary judgment, the reviewing court should analyze 472 the summary judgment evidence produced by each side and determine all questions presented. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). The reviewing court should then render such judgment as the trial court should have rendered. Id. Both motions for summary judgment turn on the statutory construction of Texas Property Code section 72.103; thus, the case is ideally suited for summary judgment. "[M]atters of statutory construction are questions of law for the court to decide rather than issues of fact." Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). The purpose of summary judgment is to provide a method of terminating a case when it is clear that only a question of law is involved and there is no genuine issue of material fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962); Jones v. Texas Pac. Indem. Co., 853 S.W.2d 791, 794 (Tex. App.-Dallas 1993, no writ). The appellate court reviews issues involving statutory construction de novo. Texas Dep't of Pub. Safety v. LaFleur, 32 S.W.3d 911, 915 (Tex.App.-Texarkana 2000, no pet.). The court's primary task when construing a statute is to give effect to the intent of the Legislature. Tex. Gov't Code Ann. § 312.005 (West 1998); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). To accomplish this, the court scrutinizes the statute's language. Id. The court should not "attribute to the legislature an intention to work an injustice" or to produce an absurd or unreasonable result. Southwestern Bell Tel. Co. v. Public Util. Comm'n, 888 S.W.2d 921, 927 (Tex.App.-Austin 1994, writ denied) (quoting State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, 242 (1943)). Property Code Section 72.103 When legislative intent is plainly expressed in the language of the statute, the court should give this intent effect. See Tex. Gov't Code Ann. § 312.005; Helena Chem. Co., 47 S.W.3d at 493. In addition, the court should consider the statute as a whole, in an attempt to maintain harmony among all of the provisions. Helena Chem. Co., 47 S.W.3d at 493. The general intent of section 72.103 is evident from its title "Preservation of Property." The value of unclaimed property is to be maintained. As GSC points out in its brief, the primary purpose of the unclaimed property laws in Texas is to reunite owners with their property. See Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999). Property which cannot be reunited with its owner is turned over to the State. See Tex. Prop.Code Ann. § 74.301 (West Supp.2002). Specifically, section 72.103 provides: Notwithstanding any other provision of this title, a holder of abandoned property shall preserve the property and may not at any time, by any procedure, including a deduction for service, maintenance, or other charge, transfer or convert to the profits or assets of the holder or otherwise reduce the value of the property. For purposes of this section, value is determined as of the date of the last transaction or contact concerning the property. Id. § 72.103 (emphasis added).[2] We look to the statute itself for definitions of terms 473 used. Hayek v. Western Steel Co., 478 S.W.2d 786, 793 (Tex.1972); 67 Tex. Jur.3d Statutes § 106 (1989). "Abandoned property" as applied to money orders is defined by Texas Property Code as follows: A money order ... is presumed to be abandoned on the latest of: (1) the fifth anniversary of the date on which the money order was issued; (2) the fifth anniversary of the date on which the issuer of the money order last received from the owner of the money order communication concerning the money order; or (3) the fifth anniversary of the date of the last writing, on file with the issuer, that indicates the owner's interest in the money order. Tex. Prop.Code Ann. § 72.102(c).[3] We have been unable to find any case law interpreting section 72.103 or 72.102(c). GSC argues that after examining the plain language of the statute, one should conclude that the money order is not "abandoned" until five years after the last transaction or contact regarding the money order. GSC includes as a "transaction or contact" its unilateral monthly deductions of service charges from the money order, which begin two years from the money order purchase date.[4] According to GSC, the "value" of the money order is what remains at the time the money order is deemed "abandoned." GSC's position that its service charges constitute a transaction or contact is a strained interpretation that has the additional disadvantage of creating an absurd outcome that the Legislature could not have intended. The words of a statute should be interpreted according to their ordinary meaning, not in a strained manner. Howell v. Mauzy, 899 S.W.2d 690, 704 (Tex.App.-Austin 1994, writ denied). Furthermore, the court should not attribute to the Legislature an intention to produce an absurd or unreasonable result. Southwestern Bell, 888 S.W.2d at 927. Instead, we presume that the Legislature intended a just and reasonable result. See Helena Chem. Co., 47 S.W.3d at 493. Under GSC's interpretation, every monthly service charge that GSC levies against an uncashed money order counts as a transaction that resets the moment in time at which the value of the money order is determined. Under this logic, GSC is free to unilaterally reduce the value of a money order by one dollar per month on the strength of its own unilateral assessment against the money order. This allows GSC, by deducting service charges, to appropriate the entire value of the money order in direct contravention of the statute's primary purposeto preserve the value of unclaimed property. Therefore, GSC's interpretation produces an absurd 474 or unreasonable result that we presume the Legislature did not intend. If the "last transaction or contact" is not the date of GSC's most recent imposition of a monthly service charge, it must be the date of the last contact or transaction between the owner of the money order and its issuer. Having set the value of the property at the last contact or transaction between the purchaser and the retailer or holder, the language regarding "value" assumes a logical significance. According to the language of section 72.103, the "last transaction or contact" is the moment that the "value" of the property is to be fixed, for purposes of preservation. Typically, the last contact or transaction between the purchaser of the money order and the holder is the moment when the money order is issued. According to the language of the statute then, the value of the property to be preserved will almost always be the face value of the money order. Thus, GSC may not reduce the value of the money order below its face value in the absence of further contacts or transactions involving the owner and the issuer. GSC also suggests that it is significant that the Legislature chose to call money orders "abandoned," without reference to a period of "inactivity." It points to the fact that the Legislature called the pre-abandonment period during which service charges may not be deducted from a depository account or a safe deposit box a period of inactivity. See Tex. Prop.Code Ann. §§ 73.003; .101 (West Supp.2002). According to GSC, the Legislature could have devised a similar scheme for money orders and chose not to do so. We agree that every word excluded from a statute must be presumed to have been excluded for a purpose. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). But when we consider the statute as a whole, in an attempt to maintain harmony among all of the provisions of the Unclaimed Property Title, we note that Chapter 73 addresses not only depository accounts and safe deposit boxes, but also checks. See Tex. Prop.Code Ann. § 73.102.[5] A money order is more analogous to a check than a safe deposit box or an account. Unlike safe deposit boxes and depository accounts, the contents of which may constantly fluctuate, a check, like a money order, is a one-time transaction that represents one unfluctuating value. Section 73.102 speaks of "abandonment" of checks, without reference to a period of inactivity. Id. In attaching no significance to the lack of inclusion of a period of inactivity with regard to money orders, we do not create disharmony between the provisions of the Act. We conclude that section 72.103 unambiguously provides that a holder of a money order may not deduct a contracted-for service charge from the money order that is eventually deemed abandoned property. After five years, the holder of the money order is to submit the entire face value to the Comptroller. Issue one is overruled.[6] 475 Penalties and Interest Having held that the Comptroller's interpretation of the statute is correct, we now turn to GSC's argument that the Comptroller abused its discretion by failing to waive penalties and interest on the withheld service charges under section 74.707(a) of the property code. See id. ("The comptroller may waive penalty or interest imposed on delinquent property if the comptroller determines that the holder has made a good faith effort to comply with Chapters 72-75."). GSC argues that the joint stipulation it entered into with the Comptroller by which it agreed to pay some of the disputed funds into a court registry is evidence of its good faith. The Comptroller argues that there is no statute authorizing judicial review of a section 74.707 determination, and, alternatively, that its determination was not an abuse of discretion. As GSC cites no authority in its brief for its argument, we find it has waived this issue on appeal. See Tex. R.App. P. 38.1(h); Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983). Furthermore, we note that the Comptroller waived some of the penalties and interest pursuant to the parties' joint stipulation. We overrule issue four. CONCLUSION Because our interpretation of Texas Property Code section 72.103 supports the district court's judgment, we overrule all of GSC's issues on appeal and affirm the judgment of the district court. NOTES [1] The court awarded the Comptroller penalties of $29,341.38, interest of $21,202.60, plus accumulated interest in the court's registry, and attorney's fees. [2] In 2001, the Legislature amended section 72.103, to take effect June 1, 2002, as follows: Notwithstanding any other provision of this title except a provision of this section relating to a money order, a holder of abandoned property shall preserve the property and may not at any time, by any procedure, including a deduction for service, maintenance, or other charge, transfer or convert to the profits or assets of the holder or otherwise reduce the value of the property. For purposes of this section, value is determined as of the date of the last transaction or contact concerning the property, except that in the case of a money order, value is determined as of the date the property is presumed abandoned under Section 72.102(c). If a holder imposes service, maintenance, or other charges on a money order prior to the time of presumed abandonment, such charges may not exceed the amount of 50 cents per month for each month the money order remains uncashed prior to the month in which the money order is presumed abandoned. See Act of May 5, 2001, 77th Leg., R.S., ch. 179, § 2, 2001 Tex. Gen. Laws 360-61. GSC's claim was pending before the 2001 amendments and is governed by the law applicable at that time. [3] Effective June 1, 2004, money orders will be considered abandoned after seven years instead of five. See Act of May 5, 2001, 77th Leg., R.S., ch. 179, § 1, 2001 Tex. Gen. Laws 360. [4] The statute does not define "contact" or "transaction." [5] A check is presumed to be abandoned on the latest of: (1) the third anniversary of the date the check was payable; (2) the third anniversary of the date the issuer or payor of the check last received documented communication from the payee of the check; or (3) the third anniversary of the date the check was issued if, according to the knowledge and records of the issuer or payor of the check, during that period, a claim to the check has not been asserted or an act of ownership by the payee has not been exercised. Tex. Prop.Code Ann. § 73.102 (West Supp. 2002). [6] GSC's second and third issues are encompassed by issue one and, thus, are also overruled.
413 So.2d 577 (1982) Harold LEONARD v. DAIGLE PONTIAC-BUICK-GMC, INC., et al. No. 14629. Court of Appeal of Louisiana, First Circuit. April 13, 1982. 578 Larry P. Boudreaux, Thibodaux, for plaintiff, appellant and appellee. Pegram J. Mire, Jr., Gonzales, for defendant, appellant and appellee. Henry D. Salassi, Jr., Baton Rouge, for third party. Before COVINGTON, COLE and WATKINS, JJ. COVINGTON, Judge. Plaintiff, Harold Leonard, filed this redhibitory action, seeking to rescind the sale of a 1978 Pontiac 2-door Grand Prix automobile or, alternatively, to obtain a reduction in the sale price. Made defendants were Daigle Pontiac-Buick-GMC, Inc. (Daigle), the dealer from whom plaintiff bought the automobile, and General Motors Corporation (GMC), the manufacturer of the vehicle. Daigle answered, denying liability and reconvening for a credit for plaintiff's use of the automobile. Daigle also third partied GMC, seeking indemnification for any liability imposed upon it. GMC answered plaintiff's petition and Daigle's third party demand, denying the existence of a defect attributable to design or manufacture of the unit, and, alternatively, asserting that the defect was easily correctable. Trial was held on July 15, 1980. At the close of trial, the court took the case under advisement. Subsequently, the court rendered judgment in favor of plaintiff and against Daigle, reducing the purchase price 579 of the automobile $1,500.00 and awarding plaintiff $500.00 in attorney's fees. The court also dismissed plaintiff's suit and Daigle's third party demand against GMC. From the judgment of the trial court, Daigle and plaintiff each perfected devolutive appeals to this court. We affirm. This suit arises from plaintiff's purchase of an allegedly defective automobile from Daigle. Plaintiff bought the vehicle on February 28, 1978, for a cash price of $9,881.72. Plaintiff traded in a 1973 Buick Century automobile, for which he was given a credit of $1,500.00, with the balance of $8,381.72 being financed. Approximately three weeks after the purchase, plaintiff was driving the car when it began to rain. At that time, plaintiff noticed a leak in the T-top of his car. Plaintiff testified that he then brought his car to Daigle to be repaired. During the next several months, plaintiff brought the car to Daigle on numerous occasions for repair of the T-top. When Daigle failed to fix it to his satisfaction, he brought the instant suit. Plaintiff described the water leak to be a "dripping." The water would leak in the front part of the passenger section of the automobile. Plaintiff testified that the leak was still present at the time of trial. There was also testimony which indicated that the T-top also had air leaks, which caused a noise. On several occasions when plaintiff brought the car in for repair, he was required to leave it overnight. Plaintiff testified that, on one occasion, he had to leave the car with Daigle for about two weeks. Roger Laurent, Daigle's general manager, who was also in charge of the service department, testified that plaintiff brought the car in for repair of the T-top on four or five occasions. He stated that the top was not defective. He testified that on these occasions, Daigle applied a special adhesive and changed the rubber gaskets, in accordance with the manufacturer's repair bulletins, in an attempt to repair the leaks. Laurent testified that on each occasion that Daigle worked on the car, he considered the car to have been fixed when it was turned over to Leonard. He indicated that the leaks were easily reparable. Frank Camperlingo, a dealer service consultant for GMC who qualified as an expert in automobile mechanics and, more specifically, T-tops, testified that, in March, 1979, Daigle requested that he come to the dealership and lend his expertise in the repair of plaintiff's automobile. Camperlingo testified that he could detect nothing wrong with the T-top, except that the weatherstrips had been overtightened. He stated that the top did not leak when subjected to a water test. He expressed the opinion that replacement of the weatherstrips would correct the problem. He further testified that there was nothing defective in the design or manufacture of the T-top and that the repairs were of a simple nature. Camperlingo suggested that the defects in the T-top was caused by Daigle's adjustments. On appeal, Daigle raises two issues, to-wit: (1) was Daigle's third party demand against GMC properly dismissed; and (2) was the $1,500.00 reduction in the sale price excessive? Plaintiff questions the remedy of reduction of price rather than rescission and the adequacy of the reduction amount. In dismissing the main and third party demands against GMC, the trial court made the following finding in its reasons for judgment: "The leaks complained of, as testified to by Daigle's General Manager, were not attributable to the manufacture or design of the car but were such that could have been corrected by the dealer." On appeal, Daigle contends that the above finding of the trial court does not justify the dismissal of its demand against GMC. It asserts that whether or not the defect was in the "manufacture or design" of the vehicle is immaterial to a determination of the manufacturer's liability, citing Rey v. Cuccia, 298 So.2d 840 (La.1974), which, inter alia, embodies the general rule that a manufacturer is presumed to know of any defects in its product. Daigle also relies on LSA-C.C. art. 2531, which reads in pertinent part: 580 "In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, ...." The jurisprudence of this state recognizes two defenses in redhibitory actions wherein the seller of a new automobile seeks indemnity from the manufacturer. First, the manufacturer may defeat the dealer's recovery if it proves that the redhibitory defects did not exist at the time the automobile was acquired by the dealer, or were not attributable to the manufacturer. Bagwell v. Coleman Oldsmobile, Inc., 391 So.2d 1260 (La.App. 1 Cir. 1980); Daigle v. Robinson Brothers, Inc., 368 So.2d 186 (La. App. 1 Cir. 1979). Second, the dealer must be denied indemnification if the manufacturer proves that the defect was easily remediable. Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4 Cir. 1981). The only evidence, in the instant case, which would tend to indicate that the defect was not present at the time of the acquisition of the automobile by Daigle from GMC is the testimony of Camperlingo that the T-top's weatherstrips had been overtightened. However, since plaintiff noticed the defect shortly after the purchase and Camperlingo did not inspect the automobile until more than one year after the purchase, the record does not support a conclusion that the redhibitory defect was not present when the dealer acquired the car from GMC. The trial court based its decision, denying Daigle indemnity, on the ground that the defect was easily remediable. Both Camperlingo and Laurent testified that the leaks in the T-top could easily be repaired. Camperlingo testified that it was only necessary to replace the gaskets and weatherstripping to make the required repairs. Opposed to the testimony that defects were easily remediable is Daigle's attempts to repair the automobile on at least six occasions. We believe a review of the entire record reveals that there is a reasonable basis for the trial court's conclusion and we do not find that it is clearly wrong. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under Article 2520 of the Louisiana Civil Code, a buyer is entitled to rescission if the defects in the thing bought render it absolutely useless or so inconvenient or imperfect that an informed buyer would not have bought it. Peterson v. Coleman Oldsmobile, Incorporated, 393 So.2d 372 (La. App. 1 Cir. 1980). The defects in the automobile in the instant case can not be considered of the magnitude necessary to support rescission of the sale. Hence, the trial court was correct in allowing plaintiff a reduction, rather than a rescission. See Cassey v. Arnaudville Industries, Inc., 393 So.2d 215 (La.App. 1 Cir. 1980). In the present case, the trial court granted Leonard a $1,500.00 reduction in the sale price of his automobile. On appeal, Daigle contends that the trial court's award was excessive and should be reduced. The proper measure of damages in an action to reduce the sale price is the difference between the actual sale price and the price a reasonable buyer and seller would have agreed upon, if they had both known of the defect. Couch v. Frichter's Sportsmen's Haven, Inc., 365 So.2d 901 (La. App. 4 Cir. 1978), writ denied, 367 So.2d 1185 (La.1979); Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1 Cir. 1975). The trial court has discretion in assessing the amount of a reduction, and its award should not be modified in the absence of clear abuse. Lemoine v. Hebert, 395 So.2d 353 (La.App. 1 Cir. 1980). Further, Daigle contends that the trial court should have limited the reduction to the amount of repairs. We disagree. The courts have consistently recognized a plaintiff's right to be compensated for uncured defects, curtailment of use and the considerable inconvenience caused by the defects, as well as the expenses of the repairs. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858, 861 (La.App. 4 Cir. 1974), writ denied, 303 So.2d 186 (La.1974). On this issue, the Court in Menville stated: 581 "When a judge orders reduction of the sale price, one of the principal elements in formulating the award is the cost of repairing the defects which existed at the time of the sale. The cost of repairs, however, is not necessarily the sole measure of the diminution of value resulting from these defects. If the defects are few in number and quickly and simply remedied, the cost of repair may well be the only consideration. But when the defects are numerous and the repairs lengthy and frequent, then a greater reduction is warranted, because a forewarned buyer would not reasonably pay the full price, reduced only by the cost of repairs, if he knew the extensive repairs of the defects would significantly curtail his use and cause him considerable inconvenience and aggravation ...." In the instant case, plaintiff suffered considerable inconvenience and aggravation and sustained a significant curtailment of his use as a result of the leaks in the T-top. The record shows that he had to bring his car in for repairs on at least six occasions, yet there are still uncured defects. Plaintiff testified that on one of these occasions Daigle kept the car for two weeks. Also, plaintiff and witnesses called on his behalf testified as to the inconvenience and discomfort suffered while riding in the car, as a result of the leaks. Under the circumstances, we find that the trial court was within its discretion in awarding a $1,500.00 reduction in the purchase price. We conclude that the court, in making its price reduction, properly considered the numerous problems involved herein, the frequent inconvenience associated with the attempted repairs, the actual damage caused by the water leaks, the cost of repairing the defects, the uncured defects and other items that would go toward diminishing the value of the automobile. See Wade v. McInnis-Peterson Chevrolet, Inc., supra. For the reasons assigned, the judgment appealed is affirmed at the costs of Daigle Pontiac-Buick-GMC, Inc., defendant-appellant. AFFIRMED.
796 F.2d 309 Charles LaDUKE, Plaintiffs-Appellees,v.Alan C. NELSON, etc., et al., Defendants-Appellants. Nos. 83-3608, 84-4148. United States Court of Appeals,Ninth Circuit. Aug. 7, 1986. Michael J. Fox, Skellenger, Ginsberg & Bender, Seattle, Wash., for plaintiffs-appellees. Marshall Tamal Golding, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants. Before FARRIS, ALARCON and FERGUSON, Circuit Judges. ORDER 1 LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985), filed June 10, 1985, is modified as follows: 2 The last sentence of the first full paragraph of the opinion, 762 F.2d at 1321, is changed to: "We affirm in part, vacate in part, and remand." 3 The fifth full paragraph on 762 F.2d at 1333, which begins "Finally," is deleted. The following paragraphs are substituted: 4 "Finally, the INS charges that the hourly fee award ($100 and $125) to class counsel unreasonably exceeded the normal fee of $75 per hour under the EAJA. The EAJA authorizes exceeding the $75 'cap' on attorney fees based on either a cost of living increase or a 'special factor, such as the limited availability of qualified attorneys for the proceedings.' 28 U.S.C. Sec. 2412(d)(2)(A)(ii). The court did not abuse its discretion in finding a special factor existed for breaching the $75 cap based on expert testimony. Accord Action on Smoking and Health v. CAB, 724 F.2d 211, 219 (D.C.Cir.1984). Accordingly, we affirm the award of attorney's fees and the hourly rates. 5 "We vacate the district court's use of the 20% multiplier, however, and remand the issue of the propriety of a multiplier to the district court for such further proceedings, findings, and orders as it may deem necessary in light of the recent Supreme Court decisions in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, --- U.S. ----, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Library of Congress v. Shaw, --- U.S. ----, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986); City of Riverside v. Rivera, --- U.S ----, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)." 6 Section IV. of the opinion, 762 F.2d at 1333, is changed to: "We affirm the district court's issuance of an amended injunction and the award of fees and costs and the hourly rates, but vacate and remand the use of the 20% multiplier."
Case: 12-20185 Document: 00512200643 Page: 1 Date Filed: 04/08/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 8, 2013 No. 12-20185 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. CIVILO CAMARILLO LOPEZ, also known as Cirilo Camarillo Lopez, also known as Cirilo Lopez Camarillo, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:11-CR-506-1 Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM:* Cirilo Camarillo Lopez appeals his within-guidelines sentence for illegal reentry after an aggravated felony conviction. The probation officer calculated a total offense level of 21, which included a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on Camarillo Lopez’s prior Texas conviction for burglary of a habitation with intent to commit theft. Camarillo Lopez objected to the 16-level enhancement on the grounds that Texas’s burglary of a habitation * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 12-20185 Document: 00512200643 Page: 2 Date Filed: 04/08/2013 No. 12-20185 offense does not meet the generic definition of burglary of a dwelling because a person may be convicted of burglary in Texas if he enters onto property without the consent of another person who has “a greater right to possession of the property than the actor.” Tex. Penal Code § 1.07(a)(35)(A). At sentencing, the district court overruled the objection. Camarillo Lopez makes the same argument on appeal. According to Camarillo Lopez, because a person can be convicted of burglary of a habitation in Texas even if he has a legitimate right to possess the property, the Texas statute is broader than the generic definition of burglary of a dwelling. This argument is foreclosed by this court’s decision in United States v. Morales-Mota, in which we reasoned that “[m]erely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may result when a person enters a habitation with intent to commit theft.” 704 F.3d 410, 412 (5th Cir. 2013). Thus, the district court did not err in applying the crime of violence enhancement in this case. See id. AFFIRMED. 2
PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT CARMEN LEVERETTE,  Plaintiff-Appellee, v. MARGARET BELL, in her individual capacity, Defendant-Appellant,  No. 00-1407 and SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Defendant.  Appeal from the United States District Court for the District of South Carolina, at Columbia. Matthew J. Perry Jr., Senior District Judge. (CA-99-501-3) Argued: December 8, 2000 Decided: April 13, 2001 Before WILKINSON, Chief Judge, and WILKINS and KING, Circuit Judges. Reversed and remanded by published opinion. Judge King wrote the opinion, in which Chief Judge Wilkinson and Judge Wilkins joined. COUNSEL ARGUED: Vance Earle Drawdy, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, L.L.C., Greenville, South Carolina, for 2 LEVERETTE v. BELL Appellant. James Lewis Cromer, CROMER & MABRY, Columbia, South Carolina, for Appellee. ON BRIEF: Scott Timothy Justice, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, L.L.C., Columbia, South Carolina, for Appellant. Edward C. Boggs, CRO- MER & MABRY, Columbia, South Carolina, for Appellee. OPINION KING, Circuit Judge: Plaintiff Carmen Leverette, an employee of South Carolina’s Wateree River Correctional Institution ("WRCI"), brought this suit against Margaret Bell, the Associate Warden of WRCI, alleging that Bell had violated her Fourth Amendment right against unreasonable searches and seizures by conducting a visual body cavity search of Leverette’s person. Leverette seeks damages pursuant to 42 U.S.C. § 1983. Along with her § 1983 claim, Leverette advanced a common- law negligence claim against the South Carolina Department of Cor- rections ("SCDC"). Upon the defendants’ motion for summary judg- ment, the district court rejected Bell’s assertion of qualified immunity, and that assertion is the sole issue before us in this inter- locutory appeal. Because we conclude that the challenged search was constitutionally permissible, we reverse the denial of summary judg- ment and remand so that judgment may be entered in Bell’s favor. I. A. Leverette was hired by SCDC as a correctional officer in December 1990, and she transferred to the WRCI facility in 1992. In April 1998, she was promoted from correctional officer to program assistant, a non-uniformed position that she continues to occupy. Prior to her pro- motion, Leverette had been subjected to two strip searches, both of which were authorized by John Carmichael, Warden of WRCI, pursu- ant to the prison’s efforts to interdict drugs and other contraband. The first such search was conducted in 1996, after an SCDC drug dog reacted to scents in Leverette’s vehicle during a random search of all LEVERETTE v. BELL 3 vehicles entering WRCI; that search, consisting of a strip, squat, and cough, was conducted by Bell and two female correctional officers and yielded no contraband. The second search, a visual body cavity search of Leverette, was carried out at WRCI on February 4, 1998, and is the subject of this lawsuit. On February 2, 1998, a WRCI inmate informed Bell that some of the other prisoners had schemed to buy marijuana "on the street," and that Leverette was planning to smuggle the marijuana into the prison by concealing it in a tampon. The inmate-informant, whose identity has not been disclosed, had on prior occasions provided accurate tips to the Sumter County Drug Task Force and to SCDC Internal Affairs. Based on information obtained in a meeting Bell attended with mem- bers of the Drug Task Force and Internal Affairs, she believed the inmate’s information concerning Leverette to be reliable. That evening, Bell called her supervisor, Warden Carmichael, to relay the information obtained from the inmate’s tip. After the call, but prior to Leverette’s scheduled return to work on February 4, Bell and Carmichael met to discuss the tip. In the course of their discus- sion, Carmichael directed Bell to conduct a strip search of Leverette upon the latter’s arrival at work on February 4. Bell recalled raising the possibility that Leverette would be wearing a tampon and suggest- ing that a female medical professional be present, in light of the "per- sonal" nature of the examination. J.A. 421. Bell further testified that no specific decision was made at that time as to what procedures to follow if a tampon were discovered. Bell and Carmichael reconvened on the morning of February 4, in order to finalize the logistics and procedures of the search. It was then determined that the search of Leverette would be conducted in Bell’s office and that a female nurse supervisor would be present, along with two female correctional officers. When Leverette arrived at WRCI to work, she was accompanied to Bell’s office and advised by Carmich- ael that the prison had received a tip that she was carrying contraband. Before leaving the office, Carmichael stated, "[Y]ou know the proce- dure on this. We are going to have to do a strip search." J.A. 146-47. Shortly after Leverette was so advised by Carmichael, the female correctional officers were beckoned to Bell’s office to conduct the 4 LEVERETTE v. BELL search. After the warden departed, the office door was closed, the blinds were drawn shut, and Leverette began to disrobe. Bell and the officers first searched Leverette’s clothing and lunch container, but they detected nothing. Leverette testified that once her clothing and lunch container had been searched, she was told that they were wait- ing for the nurse because, Bell stated, "[W]e are going to do a body cavity search." J.A. 149. Still naked, Leverette was seated for four or five minutes until the nurse arrived. In her deposition, Leverette described the activities that ensued: I stand up and they are surround[ing] me, [the nurse] and Ms. Bell, and they are not saying anything, but I know she said body cavity search. So I kind of like bend over and they are looking. And Ms. Bell said she can’t see, so I bend over a little more, and she stated she couldn’t see again. So I bend over a little more, and the third time she says she couldn’t see, so I just bent all the way down and put my hand on the floor so she could see. And after that they are there. So after I bent over I went to sit down. So they are bent down. [The nurse] she is bent down. I am opening my legs and she is looking in my vagina and Ms. Bell said they couldn’t see. So I opened my legs again and Ms. Bell said she couldn’t see. So I opened them a third time and opened them as far as I could get them. I said, "Ms. Bell, how far do you want me to open them?" and after that they looked, and then [the nurse] looked up at Ms. Bell and just like nod her head like everything was okay, and that was it. J.A. 150. After getting dressed, Leverette asked who the informant was; Bell replied that it was an inmate but declined to reveal the informant’s name. Bell then left the office briefly, returning "with a consent to be strip searched and a consent to be frisk searched." J.A. 151. Leverette recalled signing the frisk search area of the form; when it was noticed that the wrong section had been signed, Leverette complied with Bell’s request that she complete a written strip search consent. LEVERETTE v. BELL 5 Although Leverette requested a copy of the signed consent form, she apparently never received one. B. In February 1999, Leverette brought suit in the District of South Carolina against Bell, in her individual capacity, for violating Lev- erette’s constitutional rights under the Fourth Amendment, and against SCDC, for negligence.1 Following extensive discovery, the defendants filed a motion for summary judgment on all of Leverette’s claims. Leverette assented to the voluntary dismissal, without preju- dice, of her negligence claim, leaving only her § 1983 claim against Bell. Bell moved for summary judgment solely on the basis of quali- fied immunity. After hearing argument on the immunity issue, the dis- trict court denied Bell’s motion for summary judgment, and Bell timely filed this interlocutory appeal. We possess jurisdiction over this appeal pursuant to the collateral order doctrine. See Winfield v. Bass, 106 F.3d 525, 528-29 (4th Cir. 1997) (en banc) ("To the extent that an order of a district court rejecting a governmental official’s qualified immunity defense turns on a question of law, it is a final decision within the meaning of § 1291 under the collateral order doc- trine[.]") (citing Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985) (other citations omitted)). II. We review de novo a district court’s denial of summary judgment. Hodge v. Jones, 31 F.3d 157, 163 (4th Cir. 1994). Where, as here, the district court did not fully set forth the facts supporting its legal con- clusion denying qualified immunity, we must review the materials submitted to the district court to determine what the record disclosed, viewing the facts in the light most favorable to the non-moving party. See Winfield, 106 F.3d at 533. Before evaluating the merits of Bell’s qualified immunity defense, we must establish her official status, i.e., whether she conducted the 1 The negligence claim focused primarily on SCDC’s failure to observe its own procedural protections regarding employee strip searches. See infra Part III. 6 LEVERETTE v. BELL challenged search while acting within the scope of her authority as Associate Warden of WRCI. See In re Allen, 106 F.3d 582 (4th Cir. 1997). Although Leverette insists that, under Allen, Bell’s actions in conducting the search were outside of the scope of her authority, we find this argument unpersuasive. Allen instructs that "an official may claim qualified immunity as long as his actions are not clearly established to be beyond the bound- aries of his discretionary authority." Id. at 593. The relevant consider- ation under Allen, though, is not whether the official’s actions were a proper, or even legal, exercise of her discretionary authority. See id. at 594 ("If these were the relevant inquiries, any illegal action would, by definition, fall outside the scope of an official’s authority. To equate ‘the question of whether the defendants acted lawfully with the question of whether they acted within the scope of their discretion’ is ‘untenable.’") (quoting Sims v. Metro. Dade Co., 972 F.2d 1230, 1236 (11th Cir. 1992)) (internal citations omitted). Rather, we must ask whether a reasonable official in Bell’s position should have known that the conduct was clearly established to be beyond the scope of her authority. Id. As Leverette correctly observes, we have on occasion sought guid- ance from statutes and regulations in delineating the "outer perimeter" of an official’s discretionary authority. See Appellee’s Br., at 20-21 (citing Allen, 106 F.3d at 595).2 While formal sources are instructive, a defendant does not lose official status for purposes of qualified immunity analysis simply by failing to adhere to an agency’s stated policies. Leverette urges us to treat Bell’s alleged reference to the "body cavity search" — as well as her testimony that having Leverette squat and cough was "still within policy" — as probative of her 2 In Allen, we denied an immunity defense to the Attorney General of West Virginia, who had allegedly directed that an entity be incorporated in order to prevent an out-of-state organization from incorporating in West Virginia by the same name. Looking to West Virginia statutory provisions defining the responsibilities vested in the Attorney General, we concluded that the defendant could not reasonably have considered the incorporation of fictitious entities to fall within his carefully circum- scribed authority. As such, he was acting not as the Attorney General, but as a private individual. See 106 F.3d at 598. LEVERETTE v. BELL 7 knowledge that the search transgressed SCDC Policy 1500.11. That policy provides for strip searches of SCDC employees only if justified by "specific objective facts" and conducted according to its proce- dural guidelines. See J.A. 615. It explicitly states, however, that employees "will not be subjected to body cavity searches." J.A. 611. The parties disagree as to the proper classification of the search that occurred in this case. While it appears to have been more inva- sive than a standard strip search — requiring the subject to disrobe, squat, and cough — it also does not qualify as a true body cavity search.3 Thus, it is not clear that Bell engaged in conduct specifically pre- cluded by SCDC policy. Moreover, to the extent that the search did not conform to SCDC procedures — for example, the inmate’s tip was not "reduced to writing prior to or immediately subsequent to the approving authority’s decision" — we are not inclined to regard such nonconformance as sufficient to take Bell’s conduct beyond the "outer perimeter" of her discretionary authority. In the context of an Allen analysis, an official’s responsibilities are to be defined expan- sively. See, e.g., Harbert Int’l v. James, 157 F.3d 1271, 1282-83 (11th Cir. 1998) (noting that the inquiry must be "properly defined," look- ing at the general class of conduct, e.g., transporting and delivering prisoners, rather than the specific unlawful conduct alleged, e.g., improperly transferring prisoners or placing them in inadequate facili- ties). To regard noncompliance with internal policies as necessarily removing an official from the realm of immunity would, in effect, erode that crucial defense. See Allen, 106 F.3d at 594. There is no 3 Courts examining the constitutionality of physically intrusive searches have distinguished between strip searches, visual body cavity searches, and manual body cavity searches. A "visual body cavity search" requires the searched individual to expose her anal and vaginal cavities for visual inspection, whereas a "manual body cavity search" typically involves digital touching or probing by another person. See, e.g., Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985). The SCDC policy proscrib- ing employee body cavity searches does not, however, specify the scope of such prohibition. Elsewhere, the SCDC policy governing inmate searches contemplates manual searches. Even if, as Leverette empha- sizes, the policy governing inmate searches is inadmissible, it does sug- gest that there was at least a factual question as to whether the prohibition contained in Policy 1500.11 extended to visual body cavity searches. 8 LEVERETTE v. BELL question that assistant wardens of correctional facilities routinely supervise searches — including strip searches and even, under some circumstances, body cavity searches — and, thus, that Bell was acting within the scope of her authority for Allen purposes. III. Under our Allen decision, Bell, as Associate Warden of WRCI, is clearly entitled to assert the defense of qualified immunity. Whether the defense is valid in Bell’s case, however, requires us to conduct a two-step, sequential analysis. Initially, we must determine de novo whether the facts, viewed in the light most favorable to Leverette, establish the deprivation of an actual constitutional right. See Hartley v. Parnell, 193 F.3d 1263, 1268 (4th Cir. 1999) (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)). If so, we proceed to consider whether that right was clearly established at the time of the purported violation. Id.4 Leverette maintains that the February 1998 search constituted a deprivation of her Fourth Amendment right against unreasonable searches and seizures, and that a reasonable officer in Bell’s position would have known that her conduct violated a "clearly established" right. To support this position, Leverette relies primarily on SCDC’s explicit policy against subjecting employees to body cavity searches. Bell denies that she conducted a "body cavity search" as prohibited by SCDC policy. In any case, she contends that the search was rea- sonable, and that, even if ultimately ruled unconstitutional, the law was not "clearly established" at the time of the search. We agree with Bell, and we conclude that the search, as conducted, was reasonable and consistent with Leverette’s Fourth Amendment rights. 4 The applicable authorities dictate that we analyze the constitutionality of the challenged search before addressing whether the law was "clearly established." Thus, we cannot bypass, and thereby evade, a constitutional determination wherever the law is uncharted or ambiguous. See Milstead v. Kibler, No. 00-1539, 2001 WL 256045, *3 (4th Cir. March 15, 2001) ("Were courts to rule on qualified immunity without determining the constitutionality of the challenged conduct, ‘standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.’") (quoting County of Sacramento v. Lewis, 523 U.S. 833, 844 n.5 (1998)). LEVERETTE v. BELL 9 In analyzing the reasonableness of a physically intrusive search, we must balance the government’s need for the particular search against the invasion of personal rights entailed by the search. See Bell v. Wolfish, 441 U.S. 520, 559 (1979)). More specifically, we must eval- uate "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id. at 559. Although the parties quarrel as to the proper definition of the con- tested search — Bell resisting Leverette’s contention that it consti- tuted a "body cavity search," as specifically prohibited by SCDC policy — the reasonableness of the search cannot rest on semantics. Leverette has essentially conceded that a routine strip search would have been proper. See Appellee’s Br., at 18 ("Had Bell simply asked Leverette to remove her clothing, squat and cough[,] this lawsuit may never have happened."). Instead, Leverette was allegedly told that a body cavity search was to be conducted and was encouraged to expose her anal and vaginal cavities for visual inspection. Whether this search constituted a "body cavity search," specifically prohibited by SCDC Policy, it appears in any event to have deviated from SCDC’s strip search procedures. See SCDC Policy 2100.3-23, J.A. 615. That discrepancy does not, however, necessarily render the search constitutionally unreasonable. While this court has not addressed the standard applicable to the authorization of visual body cavity searches on prison employees, our decision is informed by the Supreme Court’s decision in Bell v. Wolf- ish, along with relevant decisions of our sister circuits. In Bell v. Wolfish, the Court upheld a prison’s practice of conducting visual body cavity searches on inmates following every contact visit — that is, absent individualized suspicion. 441 U.S. at 560. Emphasizing the "unique" security concerns present in the prison context, the Court concluded that, "[b]alancing the significant and legitimate security interests of the institution against the privacy interests of the inmates," visual body cavity inspections may be conducted on inmates on less than probable cause. Id. The Court’s decision in Bell v. Wolfish made clear that the "unique security dangers" present in correctional facilities may justify even the most intrusive searches, and its conclusion also reflects, inter alia, 10 LEVERETTE v. BELL the severely abridged privacy interests of prisoners. Thus, it leaves unresolved the circumstances and standards under which prison visi- tors and employees may be subjected to strip and body cavity searches. Several of our sister circuits, however, have examined issues concerning the privacy rights of prison visitors and employees, concluding that prison authorities must have at least a reasonable sus- picion that the individual is bearing contraband before conducting an invasive search. See, e.g., Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (regarding as "clearly established" the requirement that officials have reasonable suspicion before conducting strip or body cavity search of visitors, although authorities "need not secure a war- rant or have probable cause"); Blackburn v. Snow, 771 F.2d 556, 562 (1st Cir. 1985) ("[A] rule requiring all prison visitors to submit to a body cavity strip search, without any predicate requirement of indi- vidualized suspicion or showing of special and highly unusual institu- tional need, cannot satisfy the Fourth Amendment."); Thorne v. Jones, 765 F.2d 1270, 1276 (5th Cir. 1985) (applying reasonable suspicion standard to strip searches of prison visitors); cf. Sec. & Law Enforce- ment Employees v. Carey, 737 F.2d 187, 204, 208 (2d Cir. 1984) (adopting reasonable suspicion standard for strip searches of correc- tional officers, but holding that a search warrant must be obtained before conducting a visual body cavity search). We recognize that a prison employee such as Leverette does not forfeit all privacy rights when she accepts employment. Her expecta- tions of privacy are, however, diminished in light of the prison’s man- ifest interest in preventing the introduction of drugs, weapons, and other contraband. See Sec. & Law Enforcement Employees, 737 F.2d at 204. We consequently must reject Leverette’s contention that this search was constitutionally impermissible. Instead, we conclude that prison authorities generally may conduct a visual body cavity search when they possess a reasonable and individualized suspicion that an employee is hiding contraband on his or her person. Our position on this point is bolstered by our sister circuits’ decisions applying the reasonable suspicion standard to searches of prison visitors. See, e.g., Spear, 71 F.3d at 630; see also Sec. & Law Enforcement Employees, 737 F.2d at 204 (cataloguing the "significant parallels between visi- tors to correctional facilities and correction officers who work in them"). LEVERETTE v. BELL 11 We emphasize that reasonable suspicion is the minimum require- ment, and point out that the more personal and invasive the search activities of the authorities become, the more particularized and indi- vidualized the articulated supporting information must be. In this instance, we are satisfied that the supporting information was more than adequate. The information was particularized and individualized, i.e., that Leverette was bringing contraband into the prison in a tam- pon on a specific occasion. See, e.g., Hunter v. Auger, 672 F.2d 668, 675 (8th Cir. 1982) (requiring, under reasonable suspicion standard, "individualized suspicion, specifically directed to the person targeted for the strip search" and "reasonable cause to believe that drugs or other contraband are concealed in the particular place they decide to search"). It also bore indicia of reliability, i.e., the inmate-informant had provided accurate drug-related tips in the past. See, e.g., Spear, 71 F.3d at 631 (reasonable suspicion satisfied where inmate- informant "had provided accurate and important information on at least one prior occasion").5 Additionally, the decisionmaking process in this matter was entirely orderly and reasonable; Bell evaluated the information and consulted with her supervisor, Warden Carmichael, as to the proper handling of this difficult matter. Finally, the search itself, although exceedingly personal in nature, was administered in a sensitive and professional manner. The officials involved were all female, the search activity was conducted in a private setting, and it was handled with dispatch. See generally Bell, 441 U.S. at 559 (requiring courts to evaluate the manner in which a strip search or body cavity search is conducted); also Amaechi v. West, 237 F.3d 356, 364 (4th Cir. 2001) ("[W]e have repeatedly emphasized the necessity of conducting a strip search in private."); Justice v. City of 5 As courts have observed elsewhere, an informant’s status as a con- victed felon does not necessarily impugn his reliability. See Spear, 71 F.3d at 631 n.3 ("[Plaintiff] makes much of the fact that the confidential informant was a convicted felon. However, a criminal conviction is a prerequisite for the role of prison informant."). Nor does the fact that no drugs were ultimately detected indicate the absence of reasonable suspi- cion; the reliability of a tip must not be evaluated in hindsight, but must be viewed at the time the search becomes necessary. See, e.g., Lindsey v. Storey, 936 F.2d 554, 559 (11th Cir. 1991) ("[M]ore is required than a mere hindsight determination of whether reasonable suspicion existed at the time of the seizure[.]"). 12 LEVERETTE v. BELL Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992) (regarding the sex of the officers conducting a strip search as a relevant factor in evaluat- ing its intrusiveness). Leverette also emphasizes that Bell failed to comply with SCDC’s internal policies regarding employee searches. Beyond the challenged physical intrusiveness of the search, Leverette objects that Bell waited nineteen days to reduce to writing the specific facts justifying the search, rather than recording them at the time the search was autho- rized. Leverette further notes that her signed consent was not obtained "until after the search was conducted, in clear contravention of SCDC Policy 1500.11." Appellee’s Br., at 22. Once obtained, the consent form was improperly filed, in violation of SCDC’s "standard operat- ing procedure." Id.6 We find these contentions unavailing. That the search deviated from SCDC’s formal policies and procedures does not render it unrea- sonable under the Fourth Amendment. Even if SCDC’s policy against conducting body cavity searches on employees was violated here, such a violation does not in itself rise to constitutional dimensions. IV. Given our conclusion that no constitutional violation occurred, we need not reach the second step of the Wilson v. Layne qualified immu- nity analysis — that is, examining whether the law was "clearly estab- lished" at the time of the challenged conduct. See supra note 4. Bell was involved in a constitutionally permissible activity while acting in the scope of her authority as Associate Warden of WRCI, and she is therefore entitled to qualified immunity. Accordingly, we reverse the district court’s order denying qualified immunity and remand for entry of judgment in Bell’s favor. REVERSED AND REMANDED 6 The validity and effect, if any, of Leverette’s written consent has not been raised on appeal by either party and is not before us. Its existence — and the manner and timing of its execution — is simply part of the factual scenario underlying this case.
825 N.E.2d 1274 (2005) James HUFFMAN, Appellant-Defendant, v. STATE of Indiana, Appellee. No. 49A02-0405-CR-424. Court of Appeals of Indiana. May 2, 2005. 1275 Katherine A. Cornelius, Marion County Public Defender Agency, Appellate Division, Indianapolis, IN, Attorney for Appellant. Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. OPINION SULLIVAN, Judge. James Huffman appeals the sentence he received following his plea of guilty to two counts of murder. The sole issue he presents upon appeal is whether his sentence violates the rule of law announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm. Huffman was charged with the murder of his ex-girlfriend, Chassidy Joiner, who was the mother of his children, and with the murder of her new boyfriend, Ralph Downend. In addition, he was charged with theft as a Class D felony, carrying a handgun without a license as a Class A misdemeanor, and invasion of privacy as a Class A misdemeanor. In exchange for his plea of guilty to the two counts of murder, the State agreed to drop the charges for the remaining counts. In addition, the State filed a request for a sentence of life without parole. One ground upon which that request was sought was because Huffman was alleged to have committed two murders. Huffman moved to withdraw his guilty plea because of the life without parole request on this ground and the State withdrew that request. Nonetheless, a second request for life without parole, based upon the allegation that Huffman lay in wait before killing Chassidy, remained. On December 2, 2003, the trial court conducted a guilty plea hearing at which Huffman was informed of his rights. The trial court informed Huffman that per the plea agreement he faced a minimum sentence of fifty years and a maximum sentence of life without parole. He was also put on notice that the crime of murder carried a range of forty-five to sixty-five years and that he faced a maximum term of years sentence of one-hundred thirty years. Huffman acknowledged that he understood the potential sentences he faced. The court then stated that she understood that it was the parties' intention that the court hear the evidence with respect to the 1276 second phase of the trial, i.e. the evidence with respect to aggravation and mitigation. The parties agreed. Huffman was then informed of his right to have a jury hear the evidence with respect to the counts to which he was pleading guilty and for the life without parole request. He responded that he understood. He also stated that he understood he was waiving his right to have a jury determine whether he should receive the punishment of life without parole. In an effort to make sure that Huffman understood his rights, the court again addressed the right to a trial by jury, stating, "The jury has the right under the Federal Constitution to make a decision about whether, number one, the State has proved the aggravators by proof beyond a reasonable doubt, and the jury has the right to determine normally whether the aggravators outweigh the mitigators. Do you understand that?" Transcript at 15. Huffman responded, "Yes." Tr. at 15. The court then noted that the jury would normally make a binding determination with respect to the penalty phase of the case. Finally, the court asked Huffman, "And you are waiving your right to have a jury make those determinations with respect to the, what we call the penalty phase, or the life without parole phase in this case?" Tr. at 15. Huffman responded, "Yes, I am." Tr. at 15.[1] In Blakely, the United States Supreme Court applied the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which stated, "Other 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." 542 U.S. 296, 124 S.Ct. at 2536. Nonetheless, the Court also stated: "But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty." Id. at ___, 124 S.Ct. at 2541 (citations omitted). Blakely had not been decided at the time that Huffman waived his right for a jury to hear the facts for purposes of sentencing. It is in reliance upon this fact that Huffman now claims his waiver of rights does not satisfy the waiver discussed in Blakely. Specifically, Huffman asserts that Blakely requires that he be provided notice of each specific aggravating factor the State intends to introduce. He then argues that he was informed only of the potential aggravating factor of lying in wait. Because that factor applied to the request for life without parole, he opines that he waived his right to a jury finding only with respect to the possibility of life without parole and not to the standard term of years sentence. While this argument is creative, we are not persuaded. First, we do not read Blakely to require that a defendant be provided notice of every fact upon which the State may rely to seek an enhanced sentence. Additionally, Huffman's right to have a jury hear the evidence for sentencing arose from the request that he be sentenced to life without parole. See Bostick *1277 v. State, 773 N.E.2d 266, 273 (Ind. 2002). Importantly, Huffman waived that right with respect to any sentence that he could receive. This is demonstrated in the trial court's acknowledgment that he could face a minimum sentence of fifty years, a maximum term of years sentence of one-hundred thirty years, or life without parole, and Huffman's continued agreement to waive a jury determination. Through his actions, Huffman waived the right to have a jury hear the evidence for sentencing purposes for any possible sentence he could receive and authorized the trial court to hear the evidence without the assistance of a jury. This is precisely what the Supreme Court stated was allowable in Blakely when it acknowledged that defendants may consent to judicial factfinding. The sentence is affirmed. BAILEY, J., and MATHIAS, J., concur. NOTES [1] Huffman received consecutive sentences for sixty-five years upon each of the murder convictions.
J-A25001-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES DAVIS, : : Appellant : No. 3187 EDA 2016 Appeal from the Judgment of Sentence September 16, 2016 In the Court of Common Pleas of Philadelphia County Criminal Divisio.: CP-51-CR-0012499-2012 BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY DUBOW, J.: FILED APRIL 30, 2019 Appellant, Charles Davis, appeals from the Judgment of Sentence of life imprisonment followed by twenty to forty years of incarceration, imposed on September 16, 2016, following his conviction by jury for Second-Degree Murder and numerous related offenses. We affirm. We adopt the following statement of facts from the trial court’s Pa.R.A.P. 1925(a) Opinion and the certified record. See Trial Ct. Op., 4/12/17, at 2-7; N.T. Trial, 9/7-14/16. On March 5, 2012, Appellant and his Co-Conspirator, Ali Marsh, illegally entered the home of John Paul, his wife Sherrel, and their two minor children, located in North Philadelphia. The family was asleep at the time, but Mr. Paul awoke at the sound of the intruders. He exited his bedroom to investigate and encountered the intruders, who then shot him in the chest. J-A25001-18 The sounds of this altercation alerted Mrs. Paul. She, too, left the bedroom and encountered the intruders in the hallway. Following a struggle, one of the intruders shot her. She collapsed and was unable to move her lower extremities. Nevertheless, Mrs. Paul attempted to crawl toward her children’s bedroom, trying to protect them from the intruders. One of the intruders demanded money, but, upon learning there was no money in the home, shot Mrs. Paul numerous times.1 The intruders then fled the home. One of the children called 911. Police and emergency medical personnel responded to the scene. Taken to a nearby hospital, Mr. Paul was pronounced dead, but Mrs. Paul survived despite numerous bullet wounds. Investigators secured ballistic and other forensic evidence from the home. Ballistic evidence confirmed that two firearms were used in the assaults. Testing performed on blood samples taken from the scene confirmed Co-Conspirator Marsh’s presence. Upon fleeing the home, Appellant called his wife, Nicole Walton. Ms. Walton agreed to pick them up at a location in West Philadelphia. Upon her arrival, she noticed that Marsh was injured. Marsh directed Walton to drive him to a hospital outside the city, so the group proceeded to a hospital in Maryland. Along the way, the group agreed on a cover story, falsely asserting ____________________________________________ 1 During their assault upon the Paul family, Marsh suffered a gunshot wound to his leg. It is not clear whether Appellant accidentally shot his Co- Conspirator or the wound was self-inflicted. -2- J-A25001-18 that Marsh was the victim of a robbery in Delaware. Ms. Walton and Appellant left Marsh in Maryland, and Ms. Walton drove Appellant back to Pennsylvania. Investigators secured cell phone record evidence. Call logs established that calls occurred between Appellant and Marsh prior to the incident and between Appellant and Ms. Walton after the incident. In addition, investigators used call detail records to approximate Appellant’s location throughout the early morning hours of March 5, 2012. This evidence established that Appellant met Marsh in West Philadelphia. From there, the two men travelled together to North Philadelphia, returned to West Philadelphia, then left Pennsylvania for Maryland. Finally, the call detail records established that Appellant returned to Pennsylvania. Almost immediately, the group’s story unraveled, but Appellant eluded arrest until July 2012. Thereafter, the Commonwealth charged him with the following crimes: Murder, generally, Attempted Murder, Conspiracy (two counts), Aggravated Assault, Robbery, Burglary (two counts), Possession of Firearms Prohibited, Firearms Not to be Carried without a License, Carrying Firearms on Public Streets in Philadelphia, and Possessing Instruments of Crime.2 Information, Docket No. CP-51-CR0012499-2012, 10/24/12. In October 2012, a Preliminary Hearing commenced. Over the objection of Appellant, the Commonwealth presented statements given by Ms. Walton to the police. These statements described confidential communications ____________________________________________ 218 Pa.C.S. §§ 2502, 901(a), 903(a), 2702(a)(1), 3701(a)(1)(i), 3502(a)(1), 6105(a)(1), 6106(a)(1), 6108, 907(a), respectively. -3- J-A25001-18 between Ms. Walton and Appellant. Following the hearing, Appellant filed a Motion to Quash with the trial court. Initially, the court agreed with arguments levied by the Commonwealth, which asserted that such communications were admissible under a crime/fraud exception to the spousal privilege for confidential communications.3 N.T. Hearing, 5/2/13, at 5-6; Order, 5/2/13. However, upon reconsideration, the trial court concluded that there was no exception to the privilege and that the statements were inadmissible. N.T. Hearing, 8/22/13, at 15.4 Nevertheless, the court determined that there was sufficient admissible evidence to establish a prima facie case against Appellant. N.T. Hearing, 9/12/13, at 5-6, 9-10. The Commonwealth filed an interlocutory appeal in this Court, certifying that the trial court’s ruling substantially handicapped its prosecution. Commonwealth’s Notice of Appeal, 9/23/13. Upon review, we affirmed, and the Supreme Court denied the Commonwealth’s Petition for further review. ____________________________________________ 3 See 42 Pa.C.S. § 5914. 4 The trial court issued an Order, purportedly granting Appellant’s Motion in Limine. See Trial Court Order, 8/22/13. Appellant did not file such a motion. Nevertheless, this Order accurately reflects the substance of the court’s ruling. See N.T. Hearing, 8/22/13, at 15 (“So for the record, I’m vacating my earlier order allowing [Appellant’s] wife to testify against him and I am ruling that such testimony is barred by [42 Pa.C.S. § 5914].”). Moreover, the court’s ruling was responsive to Appellant’s repeated assertion that such testimony was inadmissible. See Motion to Quash, 10/31/12; Motion to Reopen Motion to Quash, 7/31/13. -4- J-A25001-18 Commonwealth v. Davis, 121 A.3d 551 (Pa. Super. 2015) (en banc), appeal denied, 128 A.3d 219 (Pa. 2015).5 Upon remand to the trial court, Appellant filed a Motion for Release Pursuant to Rule 600, essentially asserting that the Commonwealth did not timely bring him to trial because it had pursued a frivolous appeal of the trial court’s confidential spousal communications ruling. See Motion for Release Pursuant to Rule 600, 6/23/16; N.T. Trial, 9/8/16, at 5-11. The court denied Appellant’s Motion. N.T. Trial, 9/8/16, at 11. Trial commenced before a jury in September 2016. Following its deliberations, the jury convicted Appellant on all counts.6 Thereafter, the court imposed sentence as set forth above. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. The trial court issued a responsive Opinion. ____________________________________________ 5 The General Assembly has defined two spousal privileges relevant to the Commonwealth’s interlocutory appeal. See 42 Pa.C.S. §§ 5913, 5914. Both limit testimony from one spouse against another. Id. However, there is a substantial distinction between the privileges. Section 5913, which defines a spouse’s privilege “not to testify against his or her then lawful spouse,” includes an exception for criminal proceedings involving charges of murder. 42 Pa.C.S. § 5913(4). Section 5914, which prohibits testimony regarding confidential communications between spouses, includes no such exception. 42 Pa.C.S. § 5914. In its appeal, the Commonwealth sought recognition of a crime-fraud exception to the confidential communications privilege defined in Section 5914. Id. at 555. We rejected its arguments. Id. at 555-558. 6 The trial court determined Appellant’s guilt for Possession of Firearms Prohibited. Trial Ct. Op. at 2 n.2. -5- J-A25001-18 In this Court, Appellant filed an Application to Amend his Pa.R.A.P. 1925(b) Statement. Application to Amend, 1/24/18. We granted Appellant’s Application and remanded to the trial court for further proceedings. Order, 2/16/18. Upon remand, Appellant filed Supplemental Statements pursuant to Pa.R.A.P. 1925(b), and the trial court issued a Supplemental Opinion. Supplemental Statement, 3/8/18; Supplemental Statement (2), 4/4/18 (denoting if and where in the record Appellant preserved issues raised therein); Trial Ct. Supplemental Op., 4/10/18. Appellant raises the following issues on appeal, restated for clarity: 1. Whether the trial court abused its discretion when it denied Appellant’s Motion for Release Pursuant to Rule 600, as the Commonwealth delayed his trial for “approximately 805 days,” pursuing a frivolous appeal of the court’s confidential spousal communications ruling; and 2. Whether the trial court abused its discretion when it permitted expert testimony regarding cell phone location tracking data without first evaluating the “reliability, scientific community acceptance, the standard levels of deviation, and the margins for error” associated with this evidence. Appellant’s Br. at 2-3. In his first issue, Appellant contends the trial court abused its discretion when it denied his Motion for Release Pursuant to Rule 600. Appellant’s Br. at 16. According to Appellant, the Commonwealth appealed the trial court’s confidential spousal communications ruling in bad faith. Id. at 22-26 (asserting that the Commonwealth knew or should have known that the law controlling this privilege is unambiguous and well settled). By Appellant’s -6- J-A25001-18 calculation, the Commonwealth’s frivolous appeal delayed Appellant’s trial by 805 days—a substantial delay prejudicial to Appellant. Id. at 26-27. Thus, Appellant concludes, this delay violated his right to a speedy trial, and the trial court should have dismissed the charges against him with prejudice. Id. at 14, 29. The purpose of Pennsylvania Rule of Criminal Procedure 600 is to protect an accused’s right to a speedy trial while also protecting society’s right to effectively prosecute criminal cases. Commonwealth v. Armstrong, 74 A.3d 228, 234-35 (Pa. Super. 2013); Pa.R.Crim.P. 600 cmt. Generally, under the Rule, trial must commence within 365 days from the date on which a criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a). “[P]eriods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence.” Pa.R.Crim.P. 600(C)(1). “Any other periods of delay shall be excluded from the computation.” Id.7 ____________________________________________ 7 As noted by the Commonwealth in its Brief, see Commonwealth’s Br. at 8- 9, Appellant’s argument conflates a Rule 600 analysis with a distinct, balancing test first defined by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-33 (1972) (crafting the test to ensure a defendant’s right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments). See Appellant’s Br. at 17-22, 26-27. In Commonwealth v. Hamilton, 297 A.2d 127, 130-33 (Pa. 1972), the Pennsylvania Supreme Court deemed this balancing test inadequate to ensure a defendant’s right to a speedy trial under the Pennsylvania Constitution. The Court has also suggested that “the prompt trial rule [i.e., Rule 600] . . . represents the sole means of securing a -7- J-A25001-18 We review the denial of a Rule 600 motion to determine whether the trial court abused its discretion. Armstrong, 74 A.3d at 234. “Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration.” Id. It is not merely an error of judgment. Id. (citation and quotation omitted). Rather, an abuse of discretion occurs where “the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record[.]” Id. (citation and quotation omitted). Essentially, Appellant asserts that the period of time during which the Commonwealth pursued its interlocutory appeal should be included in a Rule ____________________________________________ defendant's state constitutional right to a speedy trial.” Commonwealth v. Meadius, 870 A.2d 802, 803 n.1 (Pa. 2005) (citing Commonwealth v. Whitaker, 359 A.2d 174, 176 (Pa. 1976). The Court has continued to apply the balancing test in cases where an appellant presents independent claims premised on both the procedural rule and the constitutional guarantees. Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995). Here, Appellant premised his Motion for Release solely upon Rule 600. See Motion for Release. Accordingly, the Barker balancing test is inapplicable. Commonwealth v. Colon, 87 A.3d 352, 357 n.2 (Pa. Super. 2014) (“Where the appellant does not raise the separate constitutional issue apart from the Rule 600 issue as a basis for the motion to dismiss, there is no need for the Barker balancing test to be examined.”). To the extent Appellant seeks to raise a constitutional claim in this appeal, we deem it waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). -8- J-A25001-18 600 computation because the Commonwealth failed to act with due diligence.8 We disagree. Initially, we observe that the procedural history of this case undermines Appellant’s assertion that the Commonwealth’s interlocutory appeal was frivolous or in bad faith. This Court determined to hear the Commonwealth’s appeal en banc, suggesting the issues raised therein had “potential for a significant impact upon developing law or public policy.” 210 Pa. Code § 65.38(D)(5); see also Order, No. 2726 EDA 2013, 10/28/14 (directing “the case be listed before the next available en banc panel”). Moreover, in Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998), our Supreme Court examined a Rule 600 issue similar to that raised by Appellant here. In that case, the Commonwealth filed a criminal complaint charging the ____________________________________________ 8 To be clear, Appellant’s contention is narrow. The following dates are relevant: the Commonwealth filed an Information charging Appellant on October 24, 2012; the Commonwealth filed its Notice of Appeal on September 23, 2013; the Pennsylvania Supreme Court denied the Commonwealth’s Petition for Allowance of Appeal (PAA) on December 7, 2015; and trial commenced on September 8, 2016. The time elapsed between the Information and trial is 1415 days. However, Appellant concedes that any periods of delay prior to the Commonwealth’s interlocutory appeal are attributable to Appellant. See Motion for Release Pursuant to Rule 600 at 2 ¶ 11; N.T. Trial, 9/8/16, at 5. Thus, we exclude that time. Pa.R.Crim.P. 600(C)(1). The time elapsed between the Notice of Appeal and trial is 1081 days. If the Commonwealth’s interlocutory appeal period is included in the Rule 600 computation, then the Commonwealth failed to bring Appellant to trial promptly. Pa.R.Crim.P. 600(A)(2)(a). On the other hand, if the appellate period is excluded, trial commenced in 276 days (i.e., the time elapsed between the PAA denial and trial), and no Rule 600 violation occurred. Id. See discussion, infra. -9- J-A25001-18 defendant in the deaths of two people caused by him while he was driving under the influence of alcohol. Id. at 13-14. The Commonwealth sought a continuance in order to secure necessary testimony at trial from a witness who was unavailable. Id. at 14. The trial court denied the continuance, and the Commonwealth appealed, certifying that the court’s ruling substantially impaired its prosecution. Id. at 15. This Court quashed the interlocutory appeal and remanded for trial. Id. On remand, the defendant filed a motion to dismiss the charges, asserting that the Commonwealth had failed to exercise due diligence in bringing him to trial and had filed a frivolous appeal in bad faith. 9 Id. Following a hearing, the court discharged the defendant. Id. The Commonwealth appealed, and this Court reversed, concluding that the period of time comprising the pendency of the Commonwealth’s interlocutory appeal was excludable. Id. Upon further review, the Supreme Court addressed directly the Commonwealth’s right to appeal adverse evidentiary rulings and declined to penalize the Commonwealth for exercising that right, provided that it certifies that such an appeal is necessary. Id. at 17-19. According to the Court, the Commonwealth’s certification is “not contestable” and establishes the Commonwealth’s due diligence. Id. Thus, the Court remanded for trial. Id. ____________________________________________ 9The defendant brought the motion pursuant to Rule 1100, the precursor to Pa.R.Crim.P. 600. - 10 - J-A25001-18 Similarly here, the trial court determined that Ms. Walton’s confidential communications with Appellant were privileged, thus denying the Commonwealth an opportunity to present all of its evidence. The Commonwealth timely filed an interlocutory appeal and certified that this adverse evidentiary ruling substantially impaired its prosecution. Commonwealth’s Notice of Appeal. This certification is not contestable and establishes that the Commonwealth exercised due diligence. Matis, supra. The Commonwealth’s interlocutory appeal was neither frivolous nor pursued in bad faith. Therefore, the 805 days that elapsed during the pendency of the appeal are excluded from the Rule 600 computation. Pa.R.Crim.P. 600(C)(1). The time elapsed between the PAA denial, which occurred on December 7, 2015, and Appellant’s trial, which commenced on September 8, 2016, is 276 days. See supra n.8. Therefore, no violation of Rule 600 occurred. Pa.R.Crim.P. 600(A)(2)(a). Accordingly, we discern no abuse of the court’s discretion in denying Appellant’s Motion for Release. Armstrong, supra. In his second issue, Appellant contends the trial court abused its discretion when it permitted expert testimony to establish Appellant’s approximate location throughout the early morning hours of March 5, 2012. See Appellant’s Br. at 29. According to Appellant, the foundation of this evidence was “a novel science” that lacked “general acceptance in the relevant scientific community.” Id. at 29-30. Thus, Appellant implies, prior to - 11 - J-A25001-18 admitting this evidence, the court should have conducted a Frye10 hearing to evaluate the scientific methodology relied upon by the Commonwealth’s expert.11 The admission of expert testimony is subject “largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion.” Commonwealth v. Cramer, 195 A.3d 594, 605 (Pa. Super. 2018) (citation omitted). This Court has explained that scientific evidence is “novel” when “there is a legitimate dispute regarding the reliability of the expert’s conclusions.” Commonwealth v. Safka, 95 A.3d 304, 307 (Pa. Super. 2014) (citation and quotation omitted). To be admissible at trial, the methodology underlying the novel scientific evidence “must have gained general acceptance in the relevant scientific community.” Commonwealth v. Powell, 171 A.3d 294, 307 (Pa. Super. 2017). However, a trial court is not required to conduct a Frye hearing any time a party seeks to introduce scientific evidence. “Rather, a hearing is warranted only when the trial court has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a ____________________________________________ 10 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 11 To be clear, Appellant does not assert specifically that the trial court erred in failing to hold a Frye hearing. See generally Appellant’s Br.; but see Supplemental Statement; Supplemental Statement (2). Rather, Appellant asserts the admission of this scientific evidence constitutes an abuse of discretion. See Appellant’s Br. at 29. - 12 - J-A25001-18 conventional fashion in reaching his or her conclusions.” Commonwealth v. Jacoby, 170 A.3d 1065, 1091 (Pa. 2017) (citation and internal quotation marks omitted); see also Commonwealth v. Freeman, 128 A.3d 1231, 1246-47 (Pa. Super. 2015) (discerning no abuse of discretion when trial court did not conduct sua sponte a Frye hearing to determine whether cell phone location evidence relied upon accepted scientific methodology, despite the filing by defendant of a motion in limine seeking to exclude such evidence, because the defendant did not request specifically a Frye hearing). Here, Appellant did not object to this evidence at trial. N.T. Trial, 9/14/16, at 48-126 (testimony of Special Agent William Shute). Further, Appellant did not object to the admission of the Commonwealth’s exhibits supporting S.A. Shute’s testimony. Id. at 129. Finally, Appellant concedes that he never requested a Frye hearing. Supplemental Statement (2) at ¶ 3(a). For these reasons, we deem Appellant’s second issue waived. Pa.R.A.P. 302(a).12 Also before this Court are two Applications filed by Appellant. In the first, Appellant seeks to correct omissions in the record. Application for ____________________________________________ 12 In his Brief, Appellant also asserts that S.A. Shute lacked sufficient scientific or technical expertise to properly explain the methodology used to establish Appellant’s approximate location using cell phone call detail records. Appellant’s Br. at 31-32. Appellant did not object to his qualification as an expert witness at trial. N.T. Trial, 9/14/16, at 36-47. Moreover, Appellant failed to preserve this claim in any of his Pa.R.A.P. 1925(b) Statements. Pa.R.A.P. 1925(b) Statement, 11/8/13; Supplemental Statement; Supplemental Statement (2). This claim, too, is waived. Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii). - 13 - J-A25001-18 Correction of the Original Record, 9/7/18 (asserting that certain transcripts were missing from the Certified Record). We have reviewed the transcripts and conclude that no relief is due. Principally, it appears that the trial court’s Order, entered August 22, 2013, purportedly granting Appellant’s Motion in Limine has led to some confusion. As stated previously, Appellant did not file such a motion. See supra n.4. Rather, the court’s Order responded to substantive assertions by Appellant that certain testimony of Appellant’s wife was inadmissible. Id. Transcripts of the Hearings held to resolve Appellant’s assertions are included in the Certified Record. N.T. Hearing, 3/28/13; N.T. Hearing, 5/2/13; N.T. Hearing, 8/22/13. In the second, David Wesley Cornish, Esq. seeks to withdraw his representation of Appellant. Application to Withdraw as Counsel, 3/11/19. Counsel avers that he has completed all duties for this appeal and that Appellant has hired new counsel. Id. In light of our disposition, Attorney Cornish’s request is moot. Further, to date, no new counsel has entered an appearance on behalf of Appellant. Accordingly, we deny Attorney Cornish relief. Application for Correction of the Original Record denied; Application to Withdraw as Counsel denied; Judgment of Sentence affirmed. - 14 - J-A25001-18 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/30/19 - 15 -
47 F.3d 1237 UNITED STATES of America, Appellee,v.John SCOTTI, Defendant-Appellant.UNITED STATES of America, Appellant,v.Robert RODRIGUEZ, Defendant-Appellee. Nos. 51, 633, Dockets 93-1811, 94-1008. United States Court of Appeals,Second Circuit. Argued Sept. 9, 1994.Decided Feb. 10, 1995. Felix T. Gilroy, Staten Island, NY, for defendant-appellant John Scotti. Joseph Nocella, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Zachary W. Carter, U.S. Atty. and Peter A. Norling, Asst. U.S. Atty., of counsel), for the U.S. Roger Bennet Adler, P.C., New York City (Karen Bennett, of counsel) for defendant-appellee Robert Rodriguez. Before: MESKILL, MAHONEY, and WALKER, Circuit Judges. WALKER, Circuit Judge: 1 Following a trial in the Eastern District of New York, a jury found defendant John Scotti guilty of all nine counts on which he was indicted: conspiracy to make extortionate extensions of credit, 18 U.S.C. Sec. 892(a); conspiracy to use extortionate means to collect extensions of credit, 18 U.S.C. Sec. 894(a)(1); making extortionate extensions of credit, 18 U.S.C. Sec. 892(a) (three counts); and knowing participation in the use of extortionate means to collect extensions of credit, 18 U.S.C. Sec. 894(a)(1) (four counts). The jury also found defendant Robert Rodriguez guilty of the two counts on which he was indicted: conspiracy to use extortionate means to collect extensions of credit, 18 U.S.C. Sec. 894(a)(1) (Count Two of the Superseding Indictment), and knowing participation in the use of extortionate means to collect extensions of credit, or aiding and abetting the same, 18 U.S.C. Secs. 894(a)(1), 2 (Count Seven). 2 After the verdicts were returned, the district court (Eugene H. Nickerson, Judge ) granted Rodriguez's motion under Rule 33 of the Federal Rules of Criminal Procedure for a new trial on both Count Two and Count Seven. Judge Nickerson denied motions by Scotti for a judgment of acquittal or a new trial, entering judgment against him on all counts and sentencing him to 78 months of incarceration, a term of supervised release, a fine, a special condition of probation, and an order of restitution. The government appeals from the district court's order granting Rodriguez a new trial, and Scotti appeals from his convictions and sentence. I. BACKGROUND 3 The government's case portrayed the defendant John Scotti as an extortionist progressively tightening his grip on his debtor, Gary Gough, and Gough's family, with the aid of co-defendant Robert Rodriguez. As the 1980's drew to a close, Gough was trapped in a life of gambling, frequenting massage parlors, consorting with prostitutes, and abusing cocaine. These expensive habits could not be maintained with the income he drew as a part-owner of and limousine dispatcher at Staten Car Service in Staten Island, New York, and soon enough a loanshark drifted into this sea of drugs, vice, and fast living. In 1988, on the advice of Charlie Trammaci, a Staten Island deli owner, Gough turned to Scotti to bankroll his excesses. Over the next two years, Gough borrowed $9,000 from Scotti at an interest rate of 4% per week. Trammaci and Scotti paid regular visits to Gough to collect the money. When Gough slipped behind on his weekly payments, Scotti threatened to break his legs and kill him. 4 In December, 1990, Gough and Anthony Esposito, Gough's uncle and a co-owner of the car service, jointly borrowed $7,000 from Scotti for their business. The two hoped to repay that sum, plus interest of $1500, almost immediately with an expected benefit check from a life insurance policy held on Gough's mother, who had recently died. When the insurance check was slow in arriving, Scotti threatened to burn down Esposito's house. Scotti, with Trammaci at his side, also stormed into Gough's office and struck him in the mouth while he was speaking with a customer on the phone. Some months later, Scotti accosted Gough again, punching him approximately six times in the face and reissuing threats to break his legs and kill him if payments were not made. Gough testified that he paid Scotti approximately $50,000 from 1988 to mid-1991. 5 Unsated by Gough's payments, Scotti turned to John Egnat, Gough's cousin and the third co-owner of Staten Car Service. In April of 1991, Scotti demanded of Egnat $23,000 to cover the outstanding principal and interest on Gough's and Esposito's $7,000 loan. When Egnat protested that he had never borrowed money from Scotti, Scotti threatened to break Egnat's legs and burn down Egnat's house with his elderly mother inside. After the car service went out of business in July of 1991, Egnat arranged to refinance his house in an effort to come up with the funds. When Egnat informed Scotti in September that the refinancing would yield $15,500, Scotti announced that the debt was now $70,000. But being, in his own words, "a nice guy," Scotti reduced the debt to $50,000, and promised he would find someone to arrange a second mortgage for Egnat. That someone was defendant Robert Rodriguez, a licensed mortgage broker. 6 In October, 1991, Scotti brought Rodriguez over to Egnat's house and instructed Egnat to supply Rodriguez with the necessary paperwork for taking out a second mortgage. Egnat repeatedly told Rodriguez about Scotti's threats, the fact that he had never borrowed money from Scotti, and his doubts about taking a second mortgage. Rodriguez replied that he did not want to know about such things and was merely going to assist him in obtaining a mortgage. 7 On January 7, 1992, Scotti, Rodriguez, and Egnat met at Egnat's house. Egnat paid Scotti the $15,500 from the refinancing, and, in Scotti's presence, signed the application for the second mortgage that Rodriguez had brought with him. Two months later, Egnat met with Rodriguez and Rodriguez's wife, a loan officer at Arbor National Mortgage, to complete the application. In filling out the application, Rodriguez's wife inflated the monthly income Egnat earned from a rental property and falsely stated that the purpose of the mortgage was for "retirement investment." 8 After the application was submitted, an appraiser came to the Egnat home, but Egnat refused to let him in. When Scotti learned of this, he told Egnat that he would burn Egnat's house down. At this point, Egnat turned for help to the Federal Bureau of Investigation. With the FBI's assistance, Egnat began recording his conversations with Scotti and Rodriguez. Those recordings reveal that Rodriguez kept Scotti informed throughout of the status of the mortgage application and that on one occasion Rodriguez had Scotti hand-deliver necessary papers from the bank to Egnat. However, in these recorded conversations, Rodriguez persistently rebuffed Egnat's efforts to tell him about Scotti's threats. Other than once informing Egnat that his "best bet [was] to ... get it over with," Rodriguez voiced no opinion on the matter, responding repeatedly that he did not want to get involved or know anything. On July 15, 1992, the FBI arrested Scotti, and on January 19, 1993, the government filed a superseding indictment against both Scotti and Rodriguez. 9 In his defense, Scotti asserted that he was innocent of all charges, that he advanced Gough and Esposito cars and money pursuant to a specific understanding that he would eventually become a partner in the car service, that he never used or threatened violence to force repayment, and that he was a victim of false accusations by Egnat as part of a scheme to avoid repaying Scotti a legitimate debt. Rodriguez's defense was that he provided Egnat with mortgage brokering services after an introduction from Scotti. He testified that he did not know Scotti to be a violent person, that he never entered into an agreement to help Scotti collect a debt from Egnat, and that Egnat did not even mention Scotti's alleged threats until July 13, 1992, only two days before Scotti's arrest. 10 After a six-day trial, the jury rendered guilty verdicts against both Scotti and Rodriguez on all counts on which they were charged. However, Judge Nickerson granted Rodriguez a new trial on both the conspiracy and substantive counts of 18 U.S.C. Sec. 894, Counts Two and Seven respectively, on the belief that the instruction to the jury on conscious avoidance misstated the requirement of knowing participation in the use of extortionate means to collect an extension of credit. The government appeals from the order granting a new trial to Rodriguez, and Scotti appeals from his conviction and sentence. II. DISCUSSION A. Grant of New Trial to Rodriguez 11 The government contends that the district court erred in granting Rodriguez's motion for a new trial after the jury returned verdicts of guilty on both Count Two and Count Seven. We review the district court's decision to grant a new trial for abuse of discretion. United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992). 12 1. Instruction on Principal Liability under 18 U.S.C. Sec. 894(a)(1) 13 The district court granted Rodriguez a new trial because it feared that its jury instructions misstated an element of the substantive offense under Sec. 894(a)(1). Under that statute, "[w]hoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means (1) to collect or attempt to collect any extension of credit" is guilty of a criminal offense. 18 U.S.C. Sec. 894(a). "Extortionate means" is defined as "any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person." 18 U.S.C. Sec. 891(7). 14 The jury instruction that prompted Judge Nickerson to order a new trial was a "conscious avoidance" charge on the element of "knowingly participates" under Sec. 894(a)(1). It is the rule of this circuit that when knowledge is an element of an offense, trial courts may give a conscious avoidance charge if the evidence would permit a rational juror to conclude that a 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). The government requested the charge on the theory that Rodriguez deliberately shut his eyes to the fact that he was taking part in an extortion. Over Rodriguez's objection, the district court gave the following instruction: 15 If you find beyond a reasonable doubt that Robert Rodriguez was aware that there was a high probability that the purpose of the mortgage he had been brokering was to facilitate the collection, through extortionate means, of an extension of credit, but that he deliberately and consciously avoided confirming this fact so that he could deny knowledge if apprehended, then you may treat this deliberate avoidance as the equivalent of knowledge, unless you find that the defendant actually believed that the mortgage proceeds would not be used to facilitate the collection, through extortionate means, of extensions of credit. 16 (Emphasis added). 17 In granting the motion for a new trial, the district court decided that its instruction was erroneous. Judge Nickerson concluded that mere facilitation of collection cannot amount to participation within the ambit of the extortionate collection statute. In his view, "unless Rodriguez used 'extortionate means,' that is, explicit or implicit threats of violence, or participated in some way, not merely to supply funds to be used to pay the debt, but to reinforce the threats made by Scotti, Rodriguez may not be convicted of a violation of 18 U.S.C. Sec. 894." United States v. Rodriguez, No. CR 92-1061, 1993 WL 534314, at * 3 (E.D.N.Y. Dec. 16, 1993). The district court determined that the instruction, coupled with the prosecutor's comment in summation indicating that supplying funds to the victim was sufficient to constitute a violation of Sec. 894(a)(1), may have misled the jury. The instruction and summation could have led the jury to believe that it could find Rodriguez guilty for merely arranging Egnat's mortgage as long as he knew or consciously avoided knowing that the purpose of obtaining the mortgage proceeds was to pay off a debt that Scotti was attempting to collect through extortion. Id. 18 On appeal, the government argues that the instruction was proper and cannot serve as a basis for granting a new trial. Rodriguez counters that the order of a new trial should be affirmed because (1) conscious avoidance instructions are never proper on the element of knowing participation under Sec. 894(a)(1), and (2), as the district court held, the particular instruction issued in this case misstated that element of the offense. While we find no fault with giving an appropriate conscious avoidance charge on the issue of knowing participation under Sec. 894(a)(1), we do agree with Rodriguez and the district court that the conscious avoidance charge given here misstated that element of the offense.1 19 Rodriguez's argument that a conscious avoidance charge is inappropriate on the issue of knowing participation is bottomed on United States v. Mankani, 738 F.2d 538 (2d Cir.1984) and United States v. Lanza, 790 F.2d 1015 (2d Cir.), cert. denied, 479 U.S. 861, 107 S.Ct. 211, 93 L.Ed.2d 141 (1986). However, these cases are inapposite. They hold that such a charge is inappropriate on the fact issue of knowing participation in a conspiracy. See Lanza, 790 F.2d at 1022-23; Mankani, 738 F.2d at 547 n. 1. The reason that we do not permit conscious avoidance instructions on the issue of knowing participation in a conspiracy is that it is logically impossible for a defendant to intend and agree to join a conspiracy if he does not know that it exists. As we asked in Mankani, "[i]f someone can consciously avoid learning of the activities and objects of a conspiracy, how can that person ever intend those events to take place?" 738 F.2d at 547 n. 1; see also Lanza, 790 F.2d at 1023 (requiring accused have not actual knowledge of all the precise objects of the conspiracy but "some knowledge of its unlawful aims"). 20 Here, the knowledge at issue does not pertain to membership in a conspiracy, but participation in conduct proscribed by the substantive offense of Sec. 894(a)(1) (which is the object of the conspiracy offense of the same statute): namely, the use of any extortionate means to collect an extension of credit. In such a case, where guilty knowledge is at issue, a conscious avoidance instruction is proper. Mankani, 738 F.2d at 547 n. 1. 21 The substantive offense of Sec. 894(a)(1) requires that the accused participate in the extortion by some affirmative act; the accused may not escape liability by nurturing a calculated ignorance about whether his acts contributed to the extortion. Conscious avoidance instructions therefore facilitate the conviction of defendants whose conduct Congress clearly meant to outlaw under Sec. 894(a)(1). See United States v. Bigelow, 914 F.2d 966, 970-71 (7th Cir.1990), cert. denied, 498 U.S. 1121, 111 S.Ct. 1077, 112 L.Ed.2d 1182 (1991); United States v. Touloumis, 771 F.2d 235, 243-44 (7th Cir.1985) (upholding conviction of creditor who maintained calculated ignorance of hired collector's tactics); United States v. Muscarella, 585 F.2d 242, 247, 252 (7th Cir.1978) (upholding conviction of collector who showed up at two extortion meetings and advised debtor to pay but who did not apparently make direct threats). We decline to state a general rule barring conscious avoidance charges on knowing participation under Sec. 894(a)(1). 22 We turn now to the question whether the district court correctly concluded that the conscious avoidance instruction it gave misstated an element of the offense. In granting a new trial, the district court held that, contrary to its instruction, brokering a mortgage knowing that its purpose was to facilitate an extortionate collection cannot constitute "knowing participation" under Sec. 894(a)(1). Rodriguez, 1993 WL 534314, at * 3. The government argues that the instruction was entirely proper. In its view, the statute should be construed broadly to reach anyone who "knowingly [becomes] the instrumentality through which the loanshark's collection tactics could bear fruit." 23 In construing a statute, we must rely on its plain language absent a clearly expressed legislative intention to the contrary. United States v. Granderson, --- U.S. ----, ----, 114 S.Ct. 1259, 1278, 127 L.Ed.2d 611 (1994). The text of Sec. 894(a)(1) militates against the construction the government advances. As the district court noted, the statute by its terms criminalizes participation in the use of extortionate means, not in the debt collection in which extortion is used. Rodriguez, 1993 WL 534314, at * 2-* 3. This language suggests that Congress intended to hold criminally liable those who play a role in the extortion itself, not those who merely facilitate the collection of funds knowing extortion is afoot. Cf. United States v. Pacione, 738 F.2d 567, 571-72 (2d Cir.1984) ("[C]ongress was concerned primarily with the use of actual and threatened violence by members of organized crime engaged in loan sharking."). The construction the government urges would extend the reach of Sec. 894(a)(1) to cover even the benevolent arrangement of financing by a person to save the debtor, so long as it is known that the debtor will use the funds to pay off the extortionist. Accordingly, we hold that the defendant must play some role in the extortion itself to incur liability under 18 U.S.C. Sec. 894(a)(1); merely being the knowing "instrumentality through which the loanshark's collection tactics could bear fruit," contrary to the government's contention in its brief, is not sufficient. 24 Because the issue will likely arise on retrial, we take note of the district court's observation that Rodriguez can only be convicted of a Sec. 894(a)(1) offense if there is proof that he used extortionate means himself, perhaps by reinforcing threats made by Scotti, see Rodriguez, 1993 WL 534314, at * 3. This seems an unduly narrow reading of the statute. The statute makes it an offense if one "knowingly participates in any way ... in the use of any extortionate means" to collect an extension of credit. 18 U.S.C. Sec. 894(a)(1) (emphasis added). The breadth of the language reflects Congress's desire to craft a flexible set of tools for prosecutors to wield with "vigor and imagination," H.R.Conf.Rep. No. 1397, 90th Cong., 2d Sess. 31, reprinted in 1968 U.S.C.C.A.N. 2021, 2029, to shut down what it had found to be the second largest source of revenue for organized crime, see Perez v. United States, 402 U.S. 146, 155, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971) (discussing legislative history), and to allay problems of proof that had stymied prior efforts to prosecute organized crime under the Hobbs Act, see United States v. DiPasquale, 740 F.2d 1282, 1288 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985); Pacione, 738 F.2d at 570. Section 894(a)(1) is therefore not confined in its reach to those who directly threaten or commit acts of violence, but encompasses indirect participation in the use of extortionate means. Cf. Bigelow, 914 F.2d at 969-71 (upholding conviction of creditor who hired extortionist collectors). Contrary to the view of the district court, it seems to us that the provision of financing might be sufficient for liability in circumstances in which it is closely interwoven with and facilitates the use of extortionate means. 25 We also reject a narrowing of the statute on different grounds suggested by Rodriguez. He urges us to construe the statute "to criminalize only those actions specifically intended" by a defendant to further the extortion. At first blush, Rodriguez's argument seems to have merit. In dealing with a defendant who actually commits acts of violence or issues threats, we have held that "[t]o be convicted [under 18 U.S.C. Sec. 894(a)(1) ], the defendant must have intended to make a 'threat of use[ ] of violence or other criminal means[ ] to cause harm to the person, reputation, or property of [another] person.' " United States v. Natale, 526 F.2d 1160, 1168 (2d Cir.1975) (quoting 18 U.S.C. Sec. 891(7)), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976); see also United States v. Polizzi, 801 F.2d 1543, 1556 (9th Cir.1986); United States v. Sears, 544 F.2d 585, 588 (2d Cir.1976). Moreover, a secondary participant in an extortion, as Rodriguez is accused of being, might be likened to an aider and abettor, and the well-settled rule is that the government must prove that an accused aider and abettor had "the specific intent that his act or omission bring about the underlying crime." United States v. Aiello, 864 F.2d 257, 262-63 (2d Cir.1988). 26 The Supreme Court, however, has cautioned courts against too readily imposing heightened mens rea requirements in construing federal criminal statutes. In United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), the Court confronted the question whether "an intent to avoid confinement" should be read into the statute criminalizing escape from federal custody, 18 U.S.C. Sec. 751(a). Id. at 408, 100 S.Ct. at 633. Recognizing that the common-law distinction between the terms "specific intent" and "general intent" "has been the source of a good deal of confusion" in criminal law, id. at 403, 100 S.Ct. at 631, the Court observed that the more appropriate question is whether a criminal statute requires "knowledge" or "purpose." Id. at 403-04, 100 S.Ct. at 631-32. The requirement of knowledge "corresponds loosely with the concept of general intent." Id. at 405, 100 S.Ct. at 632. It is met if the government proves that a defendant was aware that a result proscribed by the statute was "practically certain to follow from his conduct, whatever his desire may be as to that result." Id. at 404, 100 S.Ct. at 631-32 (quotations omitted). On the other hand, the requirement of purpose, which "corresponds loosely with the common-law concept of specific intent," id. at 405, 100 S.Ct. at 632, demands that a defendant who causes a particular result have "consciously desire[d] that result, whatever the likelihood of that result happening from his conduct," id. at 404, 100 S.Ct. at 631 (quotations omitted). The element of purpose has been required in "certain narrow classes of crime ... [in which] heightened culpability has been thought to merit special attention." Id. at 405, 100 S.Ct. at 632. 27 Turning to the application of mens rea analysis to federal criminal statutes, the Court noted that, first, courts "must follow Congress' intent as to the required level of mental culpability for any particular offense." Id. at 406, 100 S.Ct. at 632. Second, courts should avoid inferring "hair-splitting distinctions, either traditional or novel, that Congress neither stated nor implied when it made the conduct criminal." Id. at 407, 100 S.Ct. at 633. With those precepts in mind, the Court refused to read a requirement of purpose into the escape statute when "[n]othing in the language or legislative history of Sec. 751(a) indicate[d] that Congress intended to require ... such a heightened standard of culpability...." Id. at 408, 100 S.Ct. at 634. 28 Unlike the federal escape statute considered in Bailey, where both the statute and its legislative history were silent as to the mens rea required for conviction, id. at 406, 100 S.Ct. at 632-33, Sec. 894(a)(1) expressly specifies that the participation in the extortion need only be "knowing[ ]." We see no reason to require a mental state of purpose or specific intent for all defendants accused of participation in an extortionate collection when Congress has declined to do so. 29 Our holding is not inconsistent with Natale. In that case, we required a showing that a defendant committing or threatening violence had the purpose to extort in order to clarify the element of "extortionate means," not the element of "knowingly participates." The question in Natale was whether the means could be considered extortionate, as defined in 18 U.S.C. Sec. 891(7), only if the victim had been placed in actual fear. See 526 F.2d at 1168. We held that acts or statements need only be "reasonably calculated" to instill fear in the victim in order to qualify as extortionate. Id. Nothing in Natale requires that, if another person is committing or about to commit acts reasonably calculated to instill fear in the victim, a defendant who participates in that extortion must also have a specific purpose to extort. Once the extortion is otherwise initiated, it is enough that the defendant knows that his acts as a participant will further the extortion. Indeed, Judge Nickerson's jury instructions properly recognized this distinction. On the element of "extortionate means," he charged the jury that it must find that "the lender intended to take actions which reasonably would induce fear in an ordinary person." This instruction correctly pertained only to Scotti's intent as the lender, not to Rodriguez's. On the issue of Rodriguez's mens rea, the district court properly instructed the jury that he need only have knowledge to be guilty of the substantive offense of Sec. 894(a)(1). 30 We also do not find it problematic that, in a seeming paradox, it is easier to prove principal liability under Sec. 894(a)(1) than aiding and abetting under 18 U.S.C. Sec. 2. Conviction as a principal under Sec. 894(a)(1) or as an aider and abettor requires participation in the extortion. See Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949) (aiding and abetting liability attaches if the defendant " 'participate[s] in [the crime] as in something that he wishes to bring about' " (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938) (L. Hand, J.))). However, as discussed above, aiding and abetting requires a finding of specific intent or purpose to bring about the crime, see Aiello, 864 F.2d at 262-63; Peoni, 100 F.2d at 402, whereas Sec. 894(a)(1) only requires knowledge. 31 Nothing in Peoni, a judicial construction of the federal aiding and abetting statute based on the common law of accomplice liability, see id., can be read to limit Congress's ability to define the participation crime of Sec. 894(a)(1) to require only the mens rea of knowledge. Cf. Bailey, 444 U.S. at 406, 100 S.Ct. at 632 ("Principles derived from common law ... must bow to legislative mandates."). The plain language of Sec. 894(a)(1) indicates that Congress decided that extortion was a grave enough evil to warrant criminal liability on the basis of knowledge alone, cf. People v. Lauria, 251 Cal.App.2d 471, 480, 59 Cal.Rptr. 628, 634 (1967) (stating that under California law an operator of a telephone answering service used to facilitate the extortion of ransom "might be chargeable on knowledge alone with participation in a scheme to extort money"), and did not impose the additional mens rea requirement of specific intent or purpose to bring about the crime. 32 In summary, a defendant may only be convicted of a Sec. 894(a)(1) offense if he knowingly plays some role in the extortion itself, but not if he merely performs acts that he knows will facilitate a debtor's repayment of a debt being collected by extortionate means. Since the conscious avoidance instruction indicated that even the latter would suffice for liability, we hold that the district court did not abuse its discretion in granting a new trial based on the erroneous instruction. 2. Aiding and Abetting Liability 33 Even if the instruction on principal liability given in this case was erroneous, the government contends that the guilty verdict against Rodriguez on Count Seven should nevertheless be sustained on an aiding and abetting theory. We disagree. Count Seven allowed the jury to convict Rodriguez as either a principal or aider and abettor, and, since the verdict was a general one, it is unclear on what theory the jury decided Rodriguez's guilt. Because the jury may have reached its verdict on the basis of the legally inadequate instructions on principal liability under Sec. 894(a)(1), we conclude that the district court did not abuse its discretion in granting Rodriguez a new trial on Count Seven. Cf. Griffin v. United States, 502 U.S. 46, 58, 112 S.Ct. 466, 474, 116 L.Ed.2d 371 (1991) (acknowledging permissibility of invalidating general verdict when one of the possible bases of conviction was legally inadequate); Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957) ("[T]he proper rule to be applied is that which requires a verdict to be set aside where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected."), overruled on other grounds, Burks v. United States, 437 U.S. 1, 12, 98 S.Ct. 2141, 2147-48, 57 L.Ed.2d 1 (1978). 34 Count Seven of the Superseding Indictment charged in its entirety: 35 On or about and between July 31, 1991 and July 14, 1992, both dates being approximate and inclusive, within the Eastern District of New York, the defendants JOHN SCOTTI and ROBERT RODRIGUEZ did knowingly and wilfully participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect and attempt to collect from John Egnat an extension of credit. 36 (Title 18, United States Code, Sections 894(a)(1), 2 and 3551 et seq.). 37 The reference to 18 U.S.C. Sec. 2, the federal aiding and abetting statute, gave the jury the choice of finding the defendants guilty either as a principal or an aider and abettor. The court charged the jury accordingly, stating, "The indictment charges defendant Robert Rodriguez with using extortionate means to collect or attempt to collect extensions of credit in Count Seven and with aiding and abetting the extortionate collection of extensions of credit." 38 Had Count Seven charged Rodriguez only with aiding and abetting, reinstatement of the jury verdict might be warranted. Judge Nickerson's jury instructions flawlessly recounted the elements of aiding and abetting. Cf. Aiello, 864 F.2d at 262-63 ("To convict a defendant under a theory of aiding and abetting the commission of a crime ..., the government must prove: (1) commission of the underlying crime, (2) by a person other than the defendant, (3) a voluntary act or omission by the person charged as an aider and abettor, with (4) the specific intent that his act or omission bring about the underlying crime." (citations omitted)). The erroneous conscious avoidance charge pertained only to Rodriguez's liability as a principal. Because the jury was properly instructed as to Scotti's liability as a principal, and found him guilty, any error in the conscious avoidance charge would have had no effect on the jury's determination of whether Rodriguez aided and abetted Scotti's crime. Thus, if a separate aiding and abetting count were charged and we were to find the evidence sufficient to convict Rodriguez on that theory (an issue we do not decide on this appeal), a reversal of the district court's grant of a new trial on Count Seven would be in order. 39 The problem in this case is that, given the form of the indictment, we do not know whether the jury found Rodriguez guilty as a principal or an aider and abettor. The jury merely returned a general verdict of guilty on Count Seven, and thus did not indicate on what theory its verdict rested. 40 Although Rodriguez may be punished as a principal if convicted as an aider and abettor, see United States v. Schwartz, 548 F.2d 427, 430 (2d Cir.1977), the distinction between the two theories of liability is crucial in this case. As explained above, because aiding and abetting requires proof of Rodriguez's purpose to bring about the crime, it is more difficult to prove than principal liability under Sec. 894(a)(1). 41 Rodriguez's purpose is a closely contested issue in this case. He may have sought to aid Scotti's commission of the crime, or he may have sought only to secure his broker's fee and provide Egnat with the needed financing. As the record stands, we are unable to determine whether the jury based its verdict on Count Seven on the correctly charged aiding and abetting theory or the less exacting but erroneously charged theory of principal liability. 42 If the basis for the jury's verdict on Count Seven was unclear to the district judge who, after sitting through the trial, decided to set it aside, we are in no better position to determine the matter based on the cold record on appeal. Because of this uncertainty, we are unable to say that the district court abused its discretion in setting aside the conviction on Count Seven and granting a new trial. Therefore, we affirm the order of a new trial for Rodriguez on Count Seven. 3. Conspiracy liability 43 The jury also found Rodriguez guilty of Count Two of the Superseding Indictment, which charged him with conspiracy to use extortionate means to collect or attempt to collect any extension of credit. The government argues that the conspiracy verdict should stand even if the jury's verdict on Count Seven must be set aside. The erroneous conscious avoidance charge applied only to Rodriguez's liability as a principal; the jury was properly instructed on the elements of conspiracy; and the jury found Rodriguez guilty as charged. Since it is immaterial to a conspiracy charge whether Rodriguez could properly be convicted of the substantive offense or not, the government argues, the conspiracy verdict is untainted. 44 Even though the district court set aside the conspiracy verdict on Count Two without giving separate reasons for its decision, we cannot say that it abused its discretion in so doing. In this context, there is a substantial risk of prejudicial spillover of the kind we discussed in United States v. Rooney, 37 F.3d 847, 855-56 (2d Cir.1994). Common sense and experience tell us that it is more likely that the jury will find a defendant guilty of conspiracy if it also finds him guilty of the substantive offense that is the object of the conspiracy. We are also reluctant to say that the court abused its discretion in vacating the conspiracy conviction when the jury received an erroneous instruction on the only object of the conspiracy charged in Count Two. 45 Accordingly, we affirm the district court's grant of a new trial to Rodriguez on Count Two. B. John Scotti 46 John Scotti raises four challenges on appeal: (1) the district court improperly restricted his right of cross-examination of government witnesses; (2) the district court erred by not requiring the government to produce an FBI agent's handwritten notes of a witness interview; (3) numerous due process errors occurred; and (4) the district court failed to make the requisite findings of facts in imposing a sentencing enhancement for obstruction of justice. We address each of these issues in turn. 47 1. Restriction on cross-examination and presentation of evidence 48 Scotti claims that the district court improperly curtailed his cross-examination of government witnesses and presentation of evidence. Our review of such questions is limited. As we said in United States v. Concepcion, 983 F.2d 369, 391-92 (2d Cir.1992): 49 The scope and extent of cross-examination lies within the discretion of the trial judge. The trial court may, in its discretion, preclude questions for which the questioner cannot show a good faith basis. So long as the jury has before it sufficient information to make a discriminating appraisal of the witness's possible motives for testifying falsely in favor of the government, we will uphold the trial court's exercise of its discretion. 50 (quotations and citations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993); see also United States v. Scarpa, 913 F.2d 993, 1018 (2d Cir.1990); United States v. Tillem, 906 F.2d 814, 827 (2d Cir.1990). 51 Scotti alleges first that the district court improperly restricted him from eliciting testimony about Gary Gough's HIV (Human Immunodeficiency Virus) infection and presenting testimony about Scotti's awareness of it. He argues that this evidence cumulatively would have made it seem improbable that Scotti would have risked infection by drawing blood when he punched Gough in the face, as Gough testified Scotti did. Scotti's counsel summed up the defense's theory succinctly at oral argument: "I would think a reasonably intelligent person in today's society would not go around bloodying people's faces if they had AIDS. I think maybe they'd take a bat." 52 Whatever the tactics of the "reasonably intelligent" extortionist, Scotti's beliefs as to Gough's HIV infection and the factual basis for those beliefs were in fact relevant evidence. See Fed.R.Evid. 401. As Scotti contends, such evidence is at least somewhat probative of the occurrence (or, more precisely, the non-occurrence) of material facts: namely, the acts of violence that supplied in part the predicate for Scotti's conviction on Count Four of using extortion against Gough to collect an extension of credit. Of course, the district court could still have excluded this evidence on the grounds of prejudice, confusion, or waste of time. Fed.R.Evid. 403. 53 The chief problem with Scotti's relevance argument regarding Gough's HIV infection is that he never made it until both the prosecution and defense had rested. When the issue arose at trial, Scotti's claim for admissibility focused solely on Gough's credibility. In response to the government's objection about his inquiry into Gough's HIV infection, Scotti simply framed the issue as whether Gough "g[o]t it sexually, or [is he] someone who took heroin, the needle?" Since Gough's drug habits and sexual proclivities were already in evidence, examination into the source of Gough's malady was at best cumulative and at worst highly prejudicial. On those grounds, the district court was justified in excluding the evidence, especially given the risk that a juror might impermissibly discredit Gough solely because of his HIV status. If Scotti had an alternative theory of relevance, it was his burden to alert the court to it. See United States v. Pugliese, 712 F.2d 1574, 1580 (2d Cir.1983); United States v. Kelly, 556 F.2d 257, 265 (5th Cir.1977) (finding no error in excluding evidence where offeror failed to argue relevance to the court), cert. denied, 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d 763 (1978); 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure Sec. 5166, at 69 & n. 20. Since counsel waited until both sides had rested to unveil his theory that evidence of Gough's HIV status was probative as to whether Scotti punched him in the face, it was not an abuse of discretion for the district court to deny Scotti's request to recall witnesses to explore this issue after the close of evidence. 54 Scotti also complains that the district court restricted his questioning of defense witness Al Schwendeman, a former employee of the Staten Car Service, about the drug habits and financial dealings of its principals. The relevance of the excluded testimony is not apparent to us, and such testimony, if intended for impeachment purposes, runs afoul of the rule against introduction of extrinsic evidence of prior bad acts. Fed.R.Evid. 608(b). Thus, we find that this claim lacks merit. 2. Discovery of FBI Agent's Notes 55 Agent Brian Taylor of the Federal Bureau of Investigation took notes of an interview with John Egnat and later filed a written report of that interview on FBI form FD-302. Taylor acknowledged on cross-examination that he retained his handwritten notes. While the formal interview report was disclosed to Scotti, the handwritten notes were not. Scotti made motions during and after trial for production of the notes, but the district court did not order discovery. Scotti contends that production of the notes was mandatory under Federal Rule of Criminal Procedure 26.2. 56 Under Rule 26.2, the court, upon motion by a party after the adverse party's witness has testified on direct examination, shall order the production by the adverse party's attorneys of any statement of the witness "that is in their possession and that relates to the subject matter concerning which the witness has testified." Fed.R.Crim.P. 26.2(a). Statements for purposes of this Rule are 57 (1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness; 58 (2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical or other recording or a transcription thereof; or 59 (3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury. 60 Fed.R.Crim.P. 26.2(f). The procedural requirements for making a motion for production and the definition of "statements" essentially track those of the Jencks Act. Compare 18 U.S.C. Sec. 3500(b) with Fed.R.Crim.P. 26.2(a)-(b); compare 18 U.S.C. Sec. 3500(e) with Fed.R.Crim.P. 26.2(f). Cf. Fed.R.Crim.P. 26.2(f) Advisory Committee's Note, 1979 Addition (stating that Rule 26.2 places in the criminal rules the substance of 18 U.S.C. Sec. 3500 while also providing for production of statements of defense witnesses). 61 Because Scotti made his first motion for the notes after Agent Taylor's direct testimony, it appears that he sought the notes as Taylor's prior statement. However, the handwritten notes are not Taylor's "statement" within the meaning of Rule 26.2(f)(1). Absent any indication that an FBI agent signs, adopts, vouches for, or intends to be accountable for the contents of the notes, the rough notes taken in a witness interview cannot be considered the agent's statement. United States v. Gotchis, 803 F.2d 74, 77-78 (2d Cir.1986). Nor, of course, do the notes qualify as Taylor's statements under subsections (2) or (3) of Rule 26.2(f) since they are neither a substantially verbatim recording of Taylor's oral statements nor a recording of any statement by him to the grand jury. Thus, Rule 26.2 did not mandate production of the notes as Agent Taylor's statement. 62 The notes may have been discoverable as a statement by John Egnat, one of the government's witnesses. In the circumstances of this case, Scotti would have been entitled to discovery of the notes if either of two conditions obtained: (1) Egnat "adopted or approved" Taylor's notes as his own statement, 18 U.S.C. Sec. 3500(e)(1); Fed.R.Crim.P. 26(f)(1); or (2) the notes were a substantially verbatim recital of Egnat's words, even if the interview was not automatically recorded, 18 U.S.C. Sec. 3500(e)(2); Fed.R.Crim.P. 26(f)(2); Palermo v. United States, 360 U.S. 343, 351-53, 79 S.Ct. 1217, 1224-25, 3 L.Ed.2d 1287 (1959) (interpreting 18 U.S.C. Sec. 3500(e)(2)). Even if not an exact recording, the notes would be considered a substantially verbatim recital of the witness's statement if they "could fairly be deemed to reflect fully and without distortion what had been said to the government agent" and thus be used to impeach the witness's testimony at trial. Id. at 352, 79 S.Ct. at 1224; United States v. Aviles, 337 F.2d 552, 556 (2d Cir.1964), cert. denied, 380 U.S. 906, 85 S.Ct. 885, 13 L.Ed.2d 794 (1965). When it is doubtful whether the notes are subject to discovery, the government should submit them to the trial court for an in camera determination; the court may in its discretion consider extrinsic evidence in deciding whether the notes qualify as a witness statement. Palermo, 60 U.S. at 354-55, 79 S.Ct. at 1225-26; United States v. Lamma, 349 F.2d 338, 340 (2d Cir.), cert. denied, 382 U.S. 947, 86 S.Ct. 407, 15 L.Ed.2d 355 (1965). 63 The defendant, however, is only entitled to production of the notes, or to a determination whether they must be produced, if he makes a timely and sufficient motion. The plain language of both Rule 26.2 and 18 U.S.C. Sec. 3500(a) shows that the "discovery procedure therein outlined applies only to statements that must be produced after a witness testifies at the trial." United States v. Giuliano, 348 F.2d 217, 223 (2d Cir.) (upholding denial of motion under Jencks Act to produce agent's notes for use in hearing to withdraw guilty plea), cert. denied, 382 U.S. 939, 946, 1000, 86 S.Ct. 390, 406, 535, 15 L.Ed.2d 349, 354, 490 (1965); see also United States v. Sebastian, 497 F.2d 1267, 1269-70 (2d Cir.1974) (holding that court cannot compel government to turn over Jencks material at pretrial suppression hearing); United States v. Percevault, 490 F.2d 126, 131 (2d Cir.1974) (holding that court cannot compel pretrial production of Jencks material). A defendant is 64 under obligation to request production of the statement within a reasonable time proximate to the direct testimony so as to alert the district judge and the government of the nature of his request. Preferably, that request should be made immediately before, during, or immediately after the direct examination, although circumstances might permit requests at different points during the trial. 65 United States v. Harris, 458 F.2d 670, 679 (5th Cir.) (per curiam), cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972). 66 Scotti did not make a timely and sufficient motion for production of any of Agent Taylor's notes which might have qualified as Egnat's statement. He made his first request for the notes during his cross-examination of Agent Taylor, the government's opening witness; that request was not in reasonable proximity to Egnat's testimony on direct examination. When Scotti's counsel attempted to cross-examine Agent Taylor on the content of the notes, Judge Nickerson apprised him of the proper use of the notes as impeachment material: 67 This is all going to be hearsay. The way you can use these notes is if Mr. Egnat gets up and testifies to something and there is something inconsistent in the notes, then you can cross-examine him on that. 68 Upon timely motion, and a finding that the notes qualified as Egnat's statement, the court clearly would have given Scotti the opportunity to use Agent Taylor's notes to impeach Egnat. But Scotti's counsel did not move for production of the notes at any time right before or after, or during, the government's direct examination of Egnat, and he completed his cross-examination without making a Rule 26.2 motion. 69 Right after that cross-examination, the government made an application to the court to recall Agent Taylor to inform the jury that, contrary to intimations by Scotti's counsel, there was nothing improper in the way the witness interviews were conducted. The following colloquy ensued: 70 [SCOTTI'S COUNSEL]: Can I have a copy of those notes? This is described by the notes. 71 THE COURT: What notes? 72 [SCOTTI'S COUNSEL]: With Agent Taylor. 73 [GOVERNMENT]: There maybe [sic] attorney work product, the witness may have seen me. What I have they have no idea what I wrote. 74 THE COURT: Did the agent write anything? 75 [GOVERNMENT]: I am not sure. 76 THE COURT: Whatever he wrote they are entitled to. 77 [GOVERNMENT]: Whatever he wrote has been given over to them. 78 At that point, the court called a recess, and the request for notes was not pursued when the court reconvened. 79 Although the meaning of this interchange is somewhat unclear, it appears to us that, even if we construe Scotti's request for the notes liberally as timely and intended for impeachment of Egnat on re-cross, it was insufficient. It had already been established during the cross-examination of Agent Taylor on the first day of the trial that the handwritten notes had not been disclosed to Scotti; only the formal interview reports had. The government, apparently under the impression that only the formal reports were discoverable, represented to the court that Scotti had all the relevant witness statements. When Scotti did not dispute that fact, the court understandably let matters rest. In light of these circumstances, we think that it was incumbent upon Scotti to state that he did not in fact have possession of all relevant witness statements and move that the court determine if the notes must be produced under Rule 26.2. By failing to challenge the government and press the district court for a ruling on the notes, Scotti effectively abandoned his motion. We find no reversible error where the district court never made a ruling adverse to Scotti during the trial, and even seemed to indicate that, if the issue were properly before it, it would rule in Scotti's favor. 80 Scotti resurrected the issue of the notes in a posttrial motion requesting that the court make a Rule 26.2 finding that the notes were discoverable and order a mistrial based on the government's failure to disclose them. Because Scotti failed to make a timely and sufficient motion for production of the notes at trial, and because a Rule 26.2 motion after trial is untimely, cf. United States v. Petito, 671 F.2d 68, 73-74 (2d Cir.), cert. denied, 459 U.S. 824, 103 S.Ct. 56, 74 L.Ed.2d 60 (1982) (motion under Jencks Act); United States v. Sacasas, 381 F.2d 451, 454 (2d Cir.1967) (same), the district court did not err in denying Scotti's final motion under 26.2 or his motion for a mistrial. 3. Due Process Claims 81 Scotti makes sundry claims of due process violations occurring before, during, and after trial. He alleges that (1) the indictment was facially invalid and improperly based on perjured and hearsay testimony, (2) the court refused to give an instruction that the government falsely manufactured evidence by having Egnat tell Rodriguez that Scotti threatened to burn down his house, (3) the jury verdict was tainted by pre-deliberation discussions of the case by jurors and by the posting of a spoof advertisement of a publication on organized crime on a door near the jury deliberation room, and (4) he suffered "retroactive misjoinder" from being tried with Rodriguez. These claims do not warrant further discussion. After careful examination, we find them wholly lacking in merit. 4. Sentencing 82 At sentencing, the district court gave Scotti a two-level enhancement for obstruction of justice under Sec. 3C1.1 of the Sentencing Guidelines because it found that he had committed perjury. Scotti contends that the enhancement was improper because the district court did not make the specific findings of fact necessary under Sec. 3C1.1. The district court merely noted that the jury made a finding of perjury in its verdict "because [Scotti] claimed that he was a totally innocent man, [and the jury] decided otherwise," but he assured the parties that any enhancement would be "based on the evidence that was at the trial." In the government's view, those statements are sufficient to show that the district court did not simply rely on the jury's verdict but made an independent assessment of the perjury claim. 83 While such a summary disposition of a perjury enhancement request might have passed muster prior to United States v. Dunnigan, --- U.S. ----, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), it no longer does. In Dunnigan, the Supreme Court emphasized the importance of a searching inquiry into perjury allegations at sentencing: 84 [I]f a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same.... When doing so, it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding. 85 Id. at ----, 113 S.Ct. at 1117. The Court indicated that independent findings on all elements of a perjury violation dispel the "concern that courts will enhance sentences as a matter of course whenever the accused takes the stand and is found guilty." Id. at ----, 113 S.Ct. at 1118. Because the district court made no independent findings on the perjury enhancement, we vacate the sentence and remand the case for resentencing in light of Dunnigan. III. CONCLUSION 86 We affirm the district court's order granting Robert Rodriguez a new trial on Counts Two and Seven of the indictment. We affirm the convictions of John Scotti on Counts One through Nine. We vacate the sentence imposed upon Scotti and remand for reconsideration of the obstruction-of-justice enhancement. 1 Rodriguez also claims that there was an inadequate factual predicate to issue a conscious avoidance instruction. See United States v. Civelli, 883 F.2d 191, 195 (2d Cir.1989), cert. denied, 493 U.S. 966, 110 S.Ct. 409, 107 L.Ed.2d 374 (1989). Since we find that the instruction misstated an element of the offense, we do not reach that claim. We leave to the district court on retrial the issue whether under 18 U.S.C. Sec. 894(a)(1), as construed in this opinion, there exists a factual predicate for a conscious avoidance instruction
870 F.2d 650 Appeal of Brault (Sandra, Robert A., Barbara) NO. 88-1776 United States Court of Appeals,Third Circuit. FEB 07, 1989 Appeal From: E.D.Pa., Newcomer, J. 1 AFFIRMED.
977 So.2d 309 (2008) STATE v. MASSEY. No. KA 07 00797. Court of Appeal of Louisiana, Third Circuit. January 30, 2008. THIBODEAUX, J. Decision without published opinion. Conviction Affirmed, Sentence Vacated and Remanded. COOKS, J. PETERS, J.
785 S.W.2d 790 (1990) Donna NANCE, Individually, and as spouse of Bobby Lee Nance, deceased, Plaintiff-Appellant, v. Joseph L. LERITZ, David M. Duree, Thomas J. Plunkert, Bernard A. Reinhart, and Emmett M. O'Brien, d/b/a L & R Professional Building Partnership, Defendants-Respondents. No. 56699. Missouri Court of Appeals, Eastern District, Division Two. March 13, 1990. 791 Lakin & Herndon, P.C., Mark T. McCloskey, St. Louis, for plaintiff-appellant. Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney, John J. Horgan, Michael J. McDonnell, St. Louis, for defendants-respondents. CRANDALL, Judge. Plaintiff, Donna Nance, individually and as spouse of Bobby Lee Nance, deceased, brought a wrongful death action against Joseph L. Leritz, David M. Duree, Thomas J. Plunkert, Bernard A. Reinhart, and Emmett M. O'Brien, d/b/a L & R Professional Office Building Partnership. The case was tried to a jury, resulting in a verdict of $495,000 with 75 percent fault ascribed to defendants and 25 percent fault ascribed to plaintiff's decedent. Plaintiff appeals from the trial court's grant of defendants' motion for judgment notwithstanding the verdict (judgment nov). We reverse and remand with directions.[1] Entry of a judgment nov is the equivalent of directing a verdict at the close of all the evidence. Vinson v. Vinson, 725 S.W.2d 121, 123 (Mo.App.1987). We review the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff, disregarding all evidence and inferences to the contrary. Marti v. Economy Fire and Casualty Co., 761 S.W.2d 254, 255-56 (Mo.App.1988). Decedent was a tuckpointer hired by C.J. Milligan (subcontractor) to perform tuckpointing on the exterior of a one hundred-year-old building owned by defendants. Decedent and a co-worker attached cables to the roof of the building to raise a platform ("staging") for their work. Decedent was fatally injured when the bricks to which the staging was clamped came loose, causing the staging, decedent and his coworker to fall 25-40 feet to the ground. The staging equipment was provided by subcontractor and allowed tuckpointers to work on portions of the exterior wall they could not reach from a ladder. The staging provided for three different methods of suspension. The C-clamp was the only device on the work site and the device decedent used on the day of the accident. The "C-clamp" method allows a clamp to fit over the top of that part of the external wall, the parapet wall, which extends above the roof line. Cables attach to the C-clamp, and the staging hangs from the cables. On the day decedent fell, he did not use a "tie-back" with the C-clamp. A tie-back is a rope or cable which attaches the C-clamp to a fixed object on the roof and is designed to prevent staging from falling if the C-clamp pulls loose. Decedent was also not wearing a safety harness, which is designed to prevent workers from falling if the staging falls. Tie-backs and safety harnesses were not at the work site on the day decedent fell. Plaintiff's sole point on appeal claims the trial court erred in granting defendant's motion for judgment nov. Plaintiff claims she made a submissible case against defendants because decedent was killed while, inter alia, performing an inherently dangerous activity. Generally, a landowner who contracts with an independent contractor is not 792 liable for damages caused by the tortious acts or omissions of the independent contractor or of his employees. Smith v. Inter-County Telephone Co., 559 S.W.2d 518, 521 (Mo. banc 1977). An exception lies if the work to be performed involves an inherently dangerous activity. Id.; Hofstetter v. Union Electric Co., 724 S.W.2d 527, 530 (Mo.App.1986). If the work is inherently dangerous, the landowner has a non-delegable duty to insure that proper safety precautions are taken. Smith, at 523. To make a submissible case under the inherently dangerous activity doctrine, plaintiff must present evidence that: (1) performance of the contract necessarily involves some inherently dangerous activity; (2) the activity which caused the damage was reasonably necessary to the performance of the contract and was inherently dangerous; (3) the one contracting with the independent contractor negligently failed to insure that adequate precautions were taken to avoid damage by reason of the inherently dangerous activity; and (4) plaintiff's damage was a direct result of such negligence. Smith, at 523. Inherently dangerous activity is that which "necessarily causes dangers which must be guarded against" and not work that "is dangerous only by reason of negligence in doing it." Smith, at 522 (quoting Carson v. Blodgett Const. Co., 189 Mo.App. 120, 174 S.W. 447, 448 (1915)). "The one starts with danger and requires preventive care to make safety, while the other starts with safety and requires negligence to make danger." Id. The focus of this appeal is on the submissibility of plaintiff's case under the first two elements of the Smith test. The first issue is whether a jury could reasonably conclude that the performance of the contract necessarily involves some inherently dangerous activity. Even the most routine construction work involves an element of risk for those who perform it. It does not follow, ipso facto, that all construction work is inherently dangerous. Hofstetter, at 531. The test is whether the "work necessarily presents a substantial risk of damage unless adequate precautions are taken." Smith, at 523. The exception does not include all of the ordinary and customary dangers which might arise in the course of work under the contract. Barbera v. Brod-Dugan Co., 770 S.W.2d 318, 322 (Mo.App.1989). In Barbera, a contractor employed to paint the exterior of a building was injured when he fell 28 feet from an extension ladder. The court held as a matter of law that the work did not necessarily involve inherently dangerous activity. Barbera, at 323. Rather, the risk involved was the ordinary type which would attend any painting work requiring the painter to ascend a ladder. Id. Here, the subcontractor was also injured when he fell while working on the exterior of a building. Unlike Barbera, however, the work here was tuckpointing and customarily required the use of staging instead of a ground-supported extension ladder. Moreover, the staging was hung from the parapet wall of a one hundred-year-old building that was being extensively rehabilitated. A witness, expert in the field of rehabilitation of masonry structures, testified that hanging staging from this wall involved a substantial risk of damage unless adequate precautions were taken. Viewing this evidence in the light most favorable to the verdict, we conclude that it was a question of fact for the jury whether the work necessarily involved some inherently dangerous activity. See, e.g., Floyd v. Benson, 753 S.W.2d 945 (Mo. App.1988). We next consider whether plaintiff made a submissible case under the second element of the Smith test. The question is whether the work that caused the injury was reasonably necessary to the performance of the contract and was inherently dangerous. Defendants concede that the decedent was killed while tuckpointing and that tuckpointing on staging was reasonably necessary to the performance of the contract. The inquiry is thus whether the 793 work that caused the death of the decedent was inherently dangerous. Defendants argue that the death was not caused by inherently dangerous activity but rather by collateral negligence of the subcontractor. Collateral negligence is negligence which is unusual or foreign to the normal or contemplated risk of doing the work. Hofstetter, at 530. The inherently dangerous activity doctrine is not applicable where the negligence of the independent contractor creates a new risk not intrinsic to the work itself, which could have been prevented by routine precautions which any careful contractor should be expected to take. Id. In Hofstetter, plaintiff was involved in the erection of a ringer crane. He was injured in the course of his work when he fell while attempting to step down from the crane. The court held that, assuming arguendo the erection of the crane was inherently dangerous, plaintiff could not recover because: Plaintiff's injury resulted from the common risk of not providing steps from the five-foot high platform of the ring and from not setting planks over the railroad ties, rather than from some special hazard intrinsic to the work itself. Hofstetter, at 530-31. In the more recent case of Sullivan v. St. Louis Station Associates, 770 S.W.2d 352 (Mo.App.1989), a plaintiff was involved in lowering a boiler weighing 11,500 pounds into a basement. He was injured when a chain from the forklift being used to lower the boiler snapped and hit him in the head. Experts testified that the use of a forklift and chain was not reasonably necessary to performance of the contract. Rather, the use of a crane was the preferable and perhaps only proper method of execution. The court held that, even if moving and lowering a boiler was inherently dangerous activity, plaintiff could not recover because his injury was caused by the contractor's choice of method rather than in any danger inherent to lowering a boiler. Sullivan, at 355. It is apparent from these cases that the inherently dangerous activity doctrine is not applicable merely because some of the work under a contract involves inherently dangerous activity. In order to impose liability, the court must find that plaintiff incurred injury as a direct result of the nature of the inherently dangerous activity. Smith, at 523; Hofstetter, at 530-31; Sullivan, at 356. Concomitantly, the fact that plaintiff's injury is caused by the negligence of the contractor does not necessarily preclude the landowner's liability. The focus is not on whether there was negligence in the performance of the activity, but whether the activity was inherently dangerous and the injury occurred as a direct result of the peculiar risk involved therein. In Smith v. Inter-County Telephone Co., 559 S.W.2d 518, (Mo. banc 1977), plaintiff was involved in digging trenches 6-12 feet deep. The contract between the employer and the contractor specifically provided that the contractor should shore and/or brace the trenches to prevent them from caving in. Plaintiff was injured when the walls of a trench, not shored or braced, caved in on him. The court held that the evidence was sufficient to present a factual question as to each of the elements of the inherently dangerous activity doctrine. Id., at 524. It is clear, then, that liability may be imposed on the employer/landowner even though the contractor disregards a contract provision and fails to take precautions to avoid injury from performing the inherently dangerous activity. Here, decedent was fatally injured when staging that supported him and hung from the parapet wall pulled loose and fell to the ground. The use of C-clamps is one of several approved and commonly used methods, albeit not the best, of securing staging. Although different or additional precautions could have been used, it was a question of fact for the jury whether decedent's death was directly caused by an inherently dangerous activity rather than an activity made dangerous by subcontractor's choice of method. 794 We therefore conclude that the trial court erred in granting defendants' motion for judgment nov. We reverse and remand with directions to reinstate the judgment in favor of plaintiff in accordance with the jury verdict. PUDLOWSKI, P.J. and KAROHL, J., concur. NOTES [1] In addition to their motion for judgment nov, defendants filed an alternative motion for new trial. The record is silent as to the disposition of the motion for new trial. Rule 72.01(c)(1) provides that if a judgment nov is granted, the trial court shall rule on the motion for new trial and shall specify the grounds for granting or denying the motion for new trial. Because this error is not addressed by the parties on appeal we deem it waived. See Bennett v. North Brighton Townhouses, Inc., 588 S.W.2d 100, 102-103 (Mo.App.1979).
428 F.2d 809 Maxine MAYS, etc., et al., Plaintiffs-Appellees,v.The BOARD OF PUBLIC INSTRUCTION OF SARASOTA COUNTY, FLORIDA,et al., Defendants-Appellants. No. 29384. United States Court of Appeals, Fifth Circuit. June 8, 1970. Richard W. Cooney, Sarasota, Fla., for defendants-appellants. James B. Sanderlin, I. W. Williams, St. Petersburg, Fla., for plaintiffs-appellees. Before BROWN, Chief Judge, MORGAN and INGRAHAM, Circuit Judges. PER CURIAM: 1 The case under consideration was first initiated in 1961. The appellant School Board appeals1 from a Board-recommended plan approved by the District Court on January 29, 1970. Two errors are asserted to the order of the District Court. 2 The thrust of appellant School Board's first objection appears to be on the issue of the desegregation of Englewood and Osprey Schools, and this objection appears to be a matter of semantics in that the District Court should have 'approved, not ordered' the Board plan into effect. We find no merit in this contention. 3 The School Board's second assertion of error is that the District Court erred in ordering the desegregation of faculties at certain Sarasota County Schools as expressed in our decision in Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F.2d 1211, 'the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire system'. The Board seeks exemption from the requirements of Singleton because its efforts to place Negro faculty in all-white faculties have met with opposition. Regardless of opposition and impediments, the Sarasota Board is under a continuing obligation to remedy the faculty situation. Until it does so, the system cannot be regarded under existing law as unitary. See United States v. Greenwood Municipal Separate School District, 5 Cir., 1969, 406 F.2d 1086. 4 The order of the District Court is affirmed. 5 The mandate herein shall issue immediately, and no stay will be granted for filing petition for rehearing or petition for writ of certiorari. 1 Under the stringent requirements of Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, which this Court has carried out in United States v. Hinds County School Board, 5 Cir., 1969, 417 F.2d 852, and of Carter v. West Feliciana Parish School Board, 1970, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477, implemented in Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F.2d 1211, this Court has judicially determined that the ordinary procedures for appellate review in school desegregation cases have to be suitably adopted to assure that each system whose case is before us, 'begin immediately to operate as unitary school systems'. Upon consideration of the parties' memoranda and so much of the record as is available or determined to be needed by the Court, the Court has proceeded to dispose of this case as an extraordinary matter. Rule 2, F.R.A.P
230 P.3d 999 (2010) 235 Or. App. 188 IN RE NOBLE. A141935 Court of Appeals of Oregon. April 28, 2010. Affirmed without opinion.
272 F.3d 688 (4th Cir. 2001) CHRISTY BRZONKALA,Plaintiff,andUNITED STATES OF AMERICA, Intervenor-PlaintiffAppellee,v.ANTONIO J. MORRISON; JAMES LANDALE CRAWFORD, Defendants-Appellants,andVIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY; CORNELL D. BROWN; WILLIAM E. LANSIDLE, in his apacity as Comptroller of the Commonwealth, Defendants. No. 00-2437 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Argued: September 24, 2001Decided: December 3, 2001 Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CA-95-1358-7)COUNSEL ARGUED: Hans Frank Bader, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Appellants. Michael Eugene Robinson, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C.; W. David Paxton, GENTRY, LOCKE, RAKES & MOORE, Roanoke, Virginia; Joseph Graham Painter, Jr., JOSEPH GRAHAM PAINTER, JR., P.C., Blacksburg, Virginia, for Appellants. Stuart E. Schiffer, Acting Assistant Attorney General, Robert P. Crouch, Jr., United States Attorney, Michael Jay Singer, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Before WIDENER, LUTTIG, and MOTZ, Circuit Judges. Affirmed by published opinion. Judge Luttig wrote the opinion, in which Judge Widener and Judge Motz joined. OPINION LUTTIG, Circuit Judge: Antonio J. Morrison and James L. Crawford successfully challenged the constitutionality of Subtitle C of the Violence Against Women Act. Morrison and Crawford now seek attorneys' fees against the United States pursuant to the Equal Access to Justice Act, 28 U.S.C. S 2412 ("EAJA"). I. 1 In 1995, Christy Brzonkala filed a complaint in federal district court against Morrison and Crawford under Subtitle C of the Violence Against Women Act, 42 U.S.C. S 13981. After Morrison and Crawford moved to dismiss, the United States intervened to defend the constitutionality of Subtitle C. The Supreme Court ultimately held that Subtitle C exceeded Congress' powers under the Commerce Clause and Section 5 of the Fourteenth Amendment. United States v. Morrison, 529 U.S. 598 (2000). Morrison and Crawford thereafter sought attorneys' fees against the United States pursuant to the Equal Access to Justice Act, 28 U.S.C. S 2412(b). Their request was denied by the district court. Brzonkala v. Virginia Polytechnic Inst. & State Univ., 115 F. Supp. 2d 677, 678 (W.D. Va. 2000). II. 2 Section 2412(b) of EAJA provides, in relevant part as follows: 3 Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. 4 (Emphasis added). Under the so-called American Rule, parties are generally responsible for their own attorneys' fees. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). However, under the "common-benefit" doctrine, at common law, and hence, under EAJA, fees may be imposed on a class of individuals not participating in the litigation, that received "a substantial benefit" from that litigation and would have had to pay the fees had the members of the class themselves brought the suit. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393-94 (1970). Upon application of the commonbenefit doctrine, fees are spread proportionately among the identified beneficiaries. Id. at 396-97. Traditionally, this doctrine has been applied in two types of cases: shareholder derivative suits, see, e.g., Mills, 396 U.S. at 394-95, and suits by union members against unions, see, e.g., Hall v. Cole, 412 U.S. 1, 8-9 (1973).* 5 In Alyeska, the Supreme Court articulated the requirements that a "class" must satisfy in order to recover fees under the commonbenefit and common-fund doctrines: 6 the classes of beneficiaries [must be] small in number and [2] easily ascertainable. [3] The benefits [must be] traced with some accuracy, and [4] there [must be] reason for confidence that the costs [can] indeed be shifted with some exactitude to those benefitting. 7 Alyeska, 421 U.S. at 265 n.39. These requirements preclude recovery of attorneys' fees by those who "undertake[ ] to enforce statutes embodying important public values[,]" that is, those acting as private attorneys general. Id.; see also 10 Moore's Federal Practice, S 54.171[2][c] (3d ed. 1997) (noting that Alyeska "completely undermined" the application of the common-benefit doctrine against governmental entities). 8 Upon considering the defendants' request for attorneys' fees under the common-benefit doctrine, the district court held that defendants failed to show "the required nexus between litigation costs and a definite, ascertainable class of beneficiaries." Brzonkala, 115 F. Supp. 2d at 680. In so holding, the court rejected the defendants' contention that Brewer v. School Board of the City of Norfolk, 456 F.2d 943 (4th Cir. 1972), a case involving what we characterized as a "quasiapplication of the `common-fund doctrine,'" controlled to permit their recovery of fees. Brzonkala, 115 F. Supp. 2d at 680. We conclude that the district court did not abuse its discretion in denying defendants' motion to compel the United States to pay defendants' attorneys' fees. A. 9 Morrison and Crawford identify, in their efforts to obtain fees from the government under the common-benefit doctrine, two different classes of individuals that allegedly benefitted substantially from the Supreme Court's decision in Morrison: first, all United States taxpayers, and, second, all individuals who were spared prosecution as a result of the Court's invalidation of VAWA's Subtitle C. Neither class satisfies the requirements of Alyeska. 10 As to the class of all taxpayers, such a class simply is not sufficiently "small in number and easily identifiable" to withstand scrutiny under Alyeska. 421 U.S. at 265 n.39. Permitting all United States taxpayers to comprise a legitimate class for purposes of the commonbenefit doctrine would be tantamount to the award of fees to one who acted in the role of private attorney general. See id.; see also Moore's Federal Practice, S 54.171[2][c] (explaining that when the alleged class of beneficiaries under the common-benefit theory is the citizenry at large, the "private attorney general" theory and the "common-benefit" theory are "indistinguishable"). Unsurprisingly, several of our sister Circuits have already rejected like claims that the common-benefit doctrine allows assessment of fees against the United States when "the general citizenry or taxpayers constitutes the class of beneficiaries." In re Hill, 775 F.2d 1035, 1041-42 (9th Cir. 1985); Grace v. Burger, 763 F.2d 457, 459-60 (D.C. Cir. 1985) (affirming the denial of attorneys' fees, as against the United States, to a party who succeeded in obtaining an invalidation of a law on First Amendment grounds). 11 As to the class of individuals spared liability under Subtitle C as a result of the Supreme Court's decision in Morrison (even assuming it would be possible to identify such persons), imposing fees on the United States would not "shift [costs] with some exactitude to those benefitting," as required by Alyeska. 421 U.S. at 265 n.39. All federal taxpayers would bear the burden of fees, not merely the comparatively much smaller class of those who would otherwise have been prosecuted under Subtitle C. B. 12 Defendants attempt to evade Alyeska by relying on our decision in Brewer. In Brewer, the plaintiffs appealed a district court's approval of a school desegregation plan (asserting that the plan failed to provide free bus transportation to students living beyond walking distance to their school) and sought attorneys' fees from the defendant school board. After agreeing with the plaintiffs on the merits, we awarded attorneys' fees under what we termed a "quasi-application of the `common fund' doctrine." Id. at 951. Concluding that the plaintiffs secured "a right of direct pecuniary benefit for all students assigned to schools within their neighborhood," id. (emphasis omitted), we observed that, while we would ordinarily require other students to contribute their proportionate share of attorneys' fees, we would not do so in that case due to the "exceptional circumstances" present. Id. at 952. 13 The case sub judice lacks both features that we emphasized in Brewer were essential to our decision to assess fees against the school board. First, in Brewer, as we pointed out, there was the equivalent of a common fund created by the litigation, which consisted of moneys to be used for student transportation. Id. at 951. Second, the assessment of fees against the school board was, we concluded, "[t]he only feasible solution in this peculiar situation," id. at 952, because an assessment of fees against other students would defeat "the basic purpose of the relief . . . , which was to secure[free] transportation" for the students. Id. Even in the face of these circumstances, it is worth noting, we awarded fees against the school board only reluctantly. Id. at 951. But, in any event, neither of the two circumstances that prompted our fee award against the governmental entity in Brewer is present here. And there is simply no reason for a "quasiapplication" of either the common-fund or the common-benefit doctrine of the type we indulged in that case. The invocation of Brewer to assess fees against the United States in this case would represent a significant extension of Brewer, to say the least. CONCLUSION 14 Because defendants have failed to show that assessment of attorneys' fees against the United States will spread the costs of litigation among a class of beneficiaries that meets the requirements for application of the common-benefit or common-fund doctrines as set forth by the Supreme Court in Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, the district court did not abuse its discretion in denying defendants' motion for fees. Accordingly, the judgment of the district court is affirmed. AFFIRMED Notes: * The "common-fund" doctrine is related to the common-benefit doctrine. It applies, as its name suggests, in cases where an actual common fund has been created as a consequence of the litigation. See Mills, 396 U.S. at 392-93.
295 F.3d 1269 BLACKLIGHT POWER, INC., Plaintiff-Appellant,v.James E. ROGAN, Director, Patent and Trademark Office, Defendant-Appellee. No. 00-1530. United States Court of Appeals, Federal Circuit. DECIDED: June 28, 2002. Donald R. Dunner, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for plaintiff-appellant. With him on the brief was J. Michael Jakes. Of counsel on the brief were Michael H. Selter, and Jeffrey S. Melcher, Manelli, Denison & Selter, PLLC, of Washington, DC. Also of counsel on the brief was Jeffrey A. Simenauer, of Washington, DC. John M. Whealan, Solicitor, United States Patent and Trademark Office, of Arlington, VA, argued for defendant-appellee. With him on the brief were Marshall S. Honeyman, and Stephen Walsh. Of counsel was Henry G. Sawtelle, Attorney, Office of the Solicitor. Before NEWMAN, CLEVENGER, and SCHALL, Circuit Judges. PAULINE NEWMAN, Circuit Judge. 1 The question on appeal is whether the Director of the Patent and Trademark Office had the authority summarily to withdraw BlackLight's patent application from issue, following Notice of Allowance, payment of the issue fee and notification of the issue date, and with publication of the drawing and claim in the Official Gazette. We conclude that such withdrawal was within the scope of the Director's authority and responsibility for performing the mission of the Patent and Trademark Office, when viewed in light of the unusual circumstances of this case. The district court's judgment is affirmed.1 BACKGROUND 2 BlackLight Power Inc. conducts research into new sources of energy. BlackLight is the owner of United States Patent Application No. 09/009,294 entitled "Hydride Compounds." As described in BlackLight's brief, the inventions claimed in this and several related patent applications and an issued patent are directed to new energy technology derived from hydrogen compounds, and new compositions including conductive magnetic plastics and corrosion-resistant high-strength coatings. 3 During examination of the '294 application, the examiner initially rejected the claims on various grounds including operability under 35 U.S.C. § 101 and enablement and definiteness under § 112. After further prosecution including discussions of experimental results and the submission of samples, the examiner withdrew the rejection and allowed the claims. A Notice of Allowance was issued on October 18, 1999, the issue fee was paid, and issuance was noticed for February 29, 2000. 4 Another BlackLight patent application, entitled "Lower-Energy Hydrogen Methods and Structures," issued as United States Patent No. 6,024,935 on February 15, 2000. Shortly thereafter, prompted by an outside inquiry, the Director of the Group that had examined these applications was made aware of both the '935 patent and the imminent issuance of the '294 application. By Declaration filed in the district court, Group Director Kepplinger stated that upon reading the patent her "main concern was the proposition that the applicant was claiming the electron going to a lower orbital in a fashion that I knew was contrary to the known laws of physics and chemistry." Director Kepplinger believed that the '935 patent and the '294 application were directed to similar subject matter, and contacted Robert Spar, Director of the Special Program Law Office in the Office of the Deputy Assistant Commissioner for Patents. Director Spar stated by Declaration that Director Kepplinger expressed concern that the '294 application "possibly had serious and substantial patentability problems and asked me to withdraw it from issue for further review." 5 On February 17, 2000 a Notice was issued to BlackLight, stating that the '294 application "is being withdrawn from issue pursuant to 37 C.F.R. § 1.313 ... to permit reopening of prosecution ... [as] requested by the Director, Special Program Law Office." It is undisputed that no one involved in the withdrawal had reviewed the '294 patent application before issuance of the Notice; at the argument of this appeal the PTO Solicitor stated that the application was not available for review because the file was in Pennsylvania for printing of the patent document. 6 BlackLight's attorneys made prompt inquiries about the withdrawal. The PTO treated the inquiries as a petition to the Commissioner requesting reversal of the withdrawal. On March 22, 2000 the petition was denied by decision of Assistant Deputy Commissioner Kunin. The decision stated that "[t]he PTO has an obligation to issue patents that meet the statutory requirements for patentability," and concluded that Director Kepplinger did not act improperly in obtaining withdrawal of the '294 application for further examination. The decision referred to Director Kepplinger's concern about the correctness of the scientific theory set forth in the issued '935 patent, described in the decision as "the discovery that energy was released by stimulating hydrogen atoms to relax, and, in so doing, to shrink to smaller radii, and to also attain energy levels below their `ground state' according to a `novel atomic model,'" and Director Kepplinger's belief that the '294 application was based on the same theory. The decision stated that Commissioner Kunin's inspection of the '294 application "reveals that this invention is asserted [sic] to matters containing fractional quantum numbers. Such fractional quantum numbers do not conform to the known laws of physics and chemistry." The decision did not further discuss patentability, but stated that the application would be returned to examination. 7 Meanwhile, on March 1, 2000 BlackLight filed suit against the PTO Commissioner (now denominated "Director") in the United States District Court for the District of Columbia, charging that the withdrawal was contrary to law and in violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. BlackLight argued that 35 U.S.C. § 151 compels issuance when the issue fee has been paid: 8 35 U.S.C. § 151. If it appears that applicant is entitled to a patent under the law, a written notice of allowance of the application shall be given or mailed to the applicant. The notice shall specify a sum, constituting the issue fee or a portion thereof, which shall be paid within three months thereafter. 9 Upon payment of this sum the patent shall issue, but if payment is not timely made, the application shall be regarded as abandoned. 10 BlackLight argued that § 151 does not allow for withdrawal of an application by the PTO after the issue fee has been paid, and that the PTO officials exceeded their authority when they withdrew the '294 application. 11 BlackLight also argued that 37 C.F.R. § 1.313, the regulation cited by the PTO in withdrawing the application, violates the mandatory statutory language of § 151: 37 C.F.R. § 1.313 12 (a). Application may be withdrawn from issue for further action at the initiative of the Office or upon petition by the applicant.... 13 (b). Once the issue fee has been paid, the Office will not withdraw the application from issue at its own initiative for any reason except: 14 (1) A mistake on the part of the Office; 15 (2) A violation of § 1.56 or illegality in the application; 16 (3) Unpatentability of one or more claims; or 17 (4) For interference. 18 BlackLight stated that even if some form of withdrawal authority were deemed to exist as set forth in § 1.313(b), the PTO exercised that authority in an arbitrary and capricious manner, for there had been no determination of unpatentability of any of the claims allowed in the '294 application. 19 The district court held that the PTO's interpretation of its statutory authority is entitled to deference in accordance with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and that the district court had so held in Harley v. Lehman, 981 F.Supp. 9 (D.D.C. 1997). The court concluded that the PTO's action in withdrawing from issue the '294 application (and subsequently four related applications) was "reasonable," reasoning that 37 C.F.R. § 1.313(b) "functions as a last-chance procedural measure to observe the PTO's central mandate of issuing viable patents," and sustained the action of the PTO. DISCUSSION 20 BlackLight argues that 35 U.S.C. § 151 commands the PTO to issue the patent upon payment of the issue fee, pointing out that the second paragraph of § 151 states that "the patent shall issue" upon payment of the fee. The PTO responds that § 151 starts with the conditional clause: "If it appears that applicant is entitled to a patent under the law...." 21 We agree with the PTO that while the words "shall issue" indeed impose a duty, the preface to § 151 places a condition on that duty. This preface conditions not only the issuance of the notice of allowance but also the ensuing steps of § 151. Statutory interpretation is "not guided by a single sentence or member of a sentence, but look[s] to the provisions of the whole law, and to its object and policy." Dole v. United Steelworkers of Am., 494 U.S. 26, 35, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990) (internal citations omitted). 22 Both paragraphs of § 151 together define the obligations and procedures of the notice of allowance and issuance. Section 151 does not prohibit the Office from interrupting the sequence if the condition set forth in the opening clause is reasonably believed not to have been met. Correct statutory interpretation is that which is "most harmonious with [the statutory] scheme and with the general purposes that Congress manifested." Commissioner v. Engle, 464 U.S. 206, 217, 104 S.Ct. 597, 78 L.Ed.2d 420 (1984) (internal citations omitted). We conclude that § 151 does not prohibit withdrawal by the PTO of a patent application after the issue fee has been paid. 23 BlackLight states that even if the PTO has statutory authority to withdraw applications, such withdrawal is limited to the grounds specified in the implementing rule, 37 C.F.R. § 1.313(b). BlackLight argues that none of these grounds applied, and specifically that ground (3), "unpatentability of one or more claims," requires a determination of unpatentability before the provision can be invoked, and not a mere hint or suspicion. The district court held that § 1.313(b)(3) did not require a "final pronouncement" of unpatentability at the time of withdrawal. 24 The object and policy of the patent law require issuance of valid patents. This responsibility, and the mission of the PTO, require authority to implement § 151 by taking extraordinary action to withdraw a patent from issue when a responsible PTO official reasonably believes that the subject matter may be unpatentable and that the application may have been allowed in error. The complexity of the examination process, and the potential for error in any human activity, weigh on the side of according the PTO latitude to withdraw an application from issue without a final determination of unpatentability when the exigencies of time do not allow for such determination. 25 The decision to withdraw the application was made by PTO officials acting within their authority and in fulfillment of their obligation to assure that patents are properly examined, and valid. In Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944) the Court observed that agency actions are entitled to judicial respect when they are reasonably taken and in accordance with the "specialized experience" of agency officials and the "validity of its reasoning." Director Kepplinger, who is presumed to be knowledgeable in the fields of physics and chemistry, upon review of the '935 patent and being generally advised of the scope of the '294 application, reasonably believed that the '294 application had not been adequately examined, and took the only available action to return the '294 application to examination. That summary action was reasonably within the scope of the agency's authority and was not an arbitrary or capricious action. In Baltimore & Ohio Railroad Co. v. United States, 386 U.S. 372, 421, 87 S.Ct. 1100, 18 L.Ed.2d 159 (1967) Justice Brennan remarked, in concurrence, on "the importance of leaving great flexibility with the agency to deal with emergency situations" in order to avoid harming that which the agency oversees. Such action must of course be reasonable under the circumstances and rare in occurrence, lest the emergency become the rule. But when necessary in order to fulfill the PTO's mission, with safeguards to the interests of the applicant including fair and expeditious further examination, we agree with the district court that the action taken is a permissible implementation of the statute and regulation. 26 The PTO's responsibility for issuing sound and reliable patents is critical to the nation. It has not been shown that the PTO's exigent action was unreasonable in view of the scientific concerns of the Group Director and the imminent issuance of the patent. In In re Alappat, 33 F.3d 1526, 1535, 31 USPQ2d 1545, 1550 (Fed.Cir. 1994) (en banc) this court sustained extraordinary action when the Commissioner in good faith believed that such action was required to ensure the issuance of valid patents, observing that "the Commissioner has an obligation to refuse to grant a patent if he believes that doing so would be contrary to law." 27 The judgment of the district court is affirmed. 28 No costs. 29 AFFIRMED. Notes: 1 Blacklight Power, Inc. v. Dickinson, 109 F.Supp.2d 44, 55 USPQ2d 1812 (D.D.C.2000).
313 F.2d 313 136 U.S.P.Q. 401 Herbert L. ANDERSON, Petitioner,v.UNITED STATES ATOMIC ENERGY COMMISSION et al., Respondents. No. 13863. United States Court of Appeals Seventh Circuit. Feb. 7, 1963. William E. Lucas, Chicago, Ill., Julius Tabin, Chicago, Ill. (Soans, Anderson, Luedeka & Fitch, Chicago, Ill., of counsel), for petitioner. Stephen B. Swartz, Department of Justice, Washington, D.C., Joseph F. Hennessey, Gen. Counsel, Atomic Energy Commission, Washington, D.C. (Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Alan S. Rosenthal, Stanley M. Kolber, Attorneys, Department of Justice, Washington, D.C., Sidney G. Kingsley, Roland A. Anderson, Asst. Gen. Counsels, John A. Horan, Attorney, Atomic Energy Commission, Washington, D.C., of counsel), for respondent. Before DUFFY, CASTLE and KILEY, Circuit Judges. CASTLE, Circuit Judge. 1 This matter is before the Court on the petition of Herbert L. Anderson for review of an order dismissing,1 without consideration of its merits, the application of petitioner for an award under Section 157(b)(3) of the Atomic Energy Act of 1954 (42 U.S.C.A. 2187(b)(3)). The application was held barred by 28 U.S.C.A. 2401(a) because it had not been brought within six years of its accrual. 2 On January 23, 1958, petitioner filed an application with the United States Atomic Energy Commission, respondent, for an award under the Atomic Energy Act based upon certain unpatented discoveries and inventions in the field of atomic energy. The application set forth, among other things, that activities of the petitioner, in concert with other scientists, during 1939, 1940 and 1941, in the development of atomic energy, which were disclosed in substantial compliance were the Act, led directly to the proper design of a suitable lattice of uranium in graphite and the successful construction of the first chain reacting pile. The government filed a response in which it asserted that the application was barred by limitations. 3 It is not disputed that whatever rights the petitioner may have under the Act first accrued August 1, 1946, the effective date of the Atomic Energy Act of 1946, which first made provision for the making of awards such as the one sought by the petitioner. The 1946 Act has been superseded by the Atomic Energy Act of 1954. The parties agreed that the limitations question be separately and first considered before the merits of the application would be reached. The Commission, in denying review, adopted the conclusion of its Patent Compensation Board that the application having been filed in 1958, more than 6 years after August 1, 1946, it is barred by the statutory limitation governing civil actions against the United States and its dismissal is required. 4 The sole contested issue presented for our determination is whether an application for an award under the Atomic Energy Act based on an unpatented invention or discovery is subject to the six year limitation period prescribed by 28 U.S.C.A. 2401(a). 5 The Atomic Energy Act, in relevant parts, (42 U.S.C.A. 2187(b)(3) and (c)(2)) provides: 6 'Any person making any invention or discovery useful in the production or utilization of special nuclear material or atomic energy, who is not entitled to compensation or a royalty therefor under this chapter and who has complied with the provisions of section 2181(c) of this title may make application to the Commission for, and the Commission may grant, an award. The Commission may also, upon the recommendation of the General Advisory Committee, and with the approval of the President, grant an award for any especially meritorious contribution to the development, use, or control of atomic energy. '* * * In determining the amount of any award under subsection (b)(3) of this section, the Commission shall take into account the considerations set forth in paragraph (1) of this subsection ((A) the advice of the Patent Compensation Board; (B) any defense, general or special, that might be pleaded in an action for patent infringement; (C) the extent to which, if any, such invention or discovery was developed through federally financed research; and (D) the degree of utility, novelty, and importance of the invention or discovery, and the cost to the inventor or discoverer of developing such invention or discovery) and the actual use of such invention or discovery. * * ' 28 U.S.C.A. 2401(a) provides: 'Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. * ' 7 Petitioner's application constituted a request for monetary compensation under that provision of the Atomic Energy Act by which the government undertook to provide the method of rewarding the makers of unpatented inventions and discoveries useful in the production or use of atomic energy. The conditions justifying or requiring the grant of an award are either expressly prescribed by the statute or necessarily implicit therein. Cf. Fletcher v. United States Atomic Energy Commission, 89 U.S.App.D.C. 218, 192 F.2d 29, 33. The proceeding is adversary in character only to the extent that compliance with the standards which measure eligibility to receive the intended benefit is to be tested. Read in conjunction with those provisions of the Act which necessarily limit the freedom of negotiation and exploitation of invention in the atomic energy field it is apparent that the award provision is designed to provide and maintain the incentive for private research in this area. Its purpose is to encourage and stimulate continued private research and activity in a field in which the government in the over-all public interest and for considerations of national defense has necessarily circumscribed the proprietary recognition usually accorded invention. Cf. Cyril E. McClellan, Docket No. 4, 1 C.C.H. Atomic Energy Law Reporter, p. 10,114. 8 The remedial nature and beneficent purpose of the award provision call for that liberal construction and application necessary to achieve the purpose for which it was enacted. The fact that in both the Acts of 1946 and 1954 the congresses which have been concerned with the fixing of the standards by which eligibility for an award is to be measured imposed no time limitation as a condition precedent to the making of an application is not without significance. The 1954 Act does provide for the application, where relevant, of the principle available as a defense in patent infringement suits which places a time limitation on damages (35 U.S.C.A. 286)2 although the subject matter of the award is an unpatented invention or discovery. Congress apparently recognized as inapplicable, and did not intend to rely upon, the more stringent bar which would preclude an application for an award for any use made of the unpatented invention or discovery if an earlier use thereof had been made more than six years previously. Otherwise it would have been unnecessary to make the time limitation defense applicable to damages for patent infringement available for consideration in the matter of awards. Congress did see the need for some limitation but it was apparently content to apply a time limit principle to restrict the amount of an award, and it was not until 1961, more than three years after the instant application, that Congress amended the Act3 to add a six year limitation period with respect to applications for awards. 9 The government concedes the 1961 amendment operates prospectively only and is therefore not applicable in the instant matter. 10 The government relies solely on 28 U.S.C.A. 2401(a) to sustain the dismissal of petitioner's application. But we are referred to no precedent for applying the bar of 2401(a) to an administrative proceeding, as distinguished from a court action, much less to a proceeding designed for the purpose of rewarding past achievement and encouraging future effort-- not one necessarily concerned with the redressing of a legal wrong, the fixing of compensation for property taken, or the assessment of a legal damage sustained. The government points to no legislative history which is indicative of Congressional intent that 2401(a) apply to the administrative proceeding here involved. 11 The government's contention in the main seems to be that Congress might have vested jurisdiction of applications for such awards in the Court of Claims and in that case a six year limitation on the filing of the application would have applied. 28 U.S.C.A. 2501. But Congress did not so choose, and we are not persuaded that the failure of Congress to so utilize the facilities of the Court of Claims affords any reason for concluding that 2401(a) is applicable. Definitive limitation periods or conditions precedent may be desirable, but they are not necessary. Congress may create a right without a time limitation in which it must be exercised. Cf. Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743. In such case the doctrine of laches may have application if the equitable nature of the right and the facts and circumstances involved so warrant. We think the right created by the provision of the Atomic Energy Act relative to the granting of awards is based on equitable principles. The government through this provision sought to do equity. 12 Moreover, it is our opinion that the administrative character of the proceeding and the nature of its subject matter preclude the applicability of 28 U.S.C.A. 2401(a). We are not here concerned with a 'civil action' nor a 'right of action' within the meaning and intent of those terms as employed in the context in which 2401(a) appears-- an enactment concerning court actions and parties thereto. 13 The order dismissing the petitioner's application is reversed and the matter is remanded to the Atomic Energy Commission for its further consideration and action. 14 Reversed and remanded. 1 The determination was made and the dismissal ordered by the Patent Compensation Board of the United States Atomic Energy Commission. The Commission denied review of the Board's decision. Jurisdiction in this Court is predicated upon 42 U.S.C.A. 2239(b); 5 U.S.C.A. 1032, 1033 and 1034 2 286 provides: 'Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action. * *.' 3 42 U.S.C.A. 2187(d); Pub.L. 87-206, 11; 75 Stat. 478
ODOM v. PENSKE TRUCK LEASING CO. Skip to Main Content Accessibility Statement Help Contact Us e-payments Careers Home Courts Decisions Programs News Legal Research Court Records Quick Links OSCN Found Document:ODOM v. PENSKE TRUCK LEASING CO. Previous Case Top Of Index This Point in Index Citationize Next Case Print Only ODOM v. PENSKE TRUCK LEASING CO.2018 OK 23Case Number: 116554Decided: 03/13/2018THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2018 OK 23, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. PERRY ODOM and CAROLYN ODOM, Plaintiffs-Appellants,v.PENSKE TRUCK LEASING CO., Defendant-Appellee,andHENDRICKSON USA, LLC, Defendant. CERTIFIED QUESTION FROM THE UNITED STATES COURT OFAPPEALS FOR THE TENTH CIRCUIT ¶0 The United States Court of Appeals for the Tenth Circuit certified to this Court a question of state law pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§ 1601-1611. CERTIFIED QUESTION ANSWERED Daniel E. Bryan, III and Lane Claussen, Hornbeek, Vitali & Bruan, Oklahoma City, Oklahoma, for Plaintiffs-Appellants. L. Earl Ogletree and Cameron Ross Capps, Wiggins, Sewell & Ogletree, Oklahoma City, Oklahoma, for Defendant-Appellee. COMBS, C.J.: ¶1 The United States Court of Appeals for the Tenth Circuit (Tenth Circuit) certified a question of state law to this Court under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§ 1601-1611. The question certified is: Under the dual-capacity doctrine, an employer who is generally immune from tort liability may become liable to its employee as a third-party tortfeasor, if it occupies, in addition to its capacity as an employer, a second capacity that confers obligations independent of those imposed on it as an employer. What is the effect of Oklahoma's Administrative Workers' Compensation Act (AWCA), Okla. Stat. Ann. tit. 85A, § 1 et seq., on the dual-capacity doctrine? In particular, does the AWCA's exclusive-remedy provision bar an employee from bringing a tort suit against a stockholder of his employer, even if the tort liability would arise from duties independent of the employment relationship? In other words, does this provision abrogate the dual-capacity doctrine as to an employer's stockholder? I. CERTIFIED FACTS AND PROCEDURAL HISTORY ¶2 The underlying facts in this matter are set out in the certification order from the Tenth Circuit. In answering a certified question, the Court does not presume facts outside those offered by the certification order. Siloam Springs Hotel, LLC v. Century Sur. Co., 2017 OK 14, ¶2, 391 P.3d 111; Howard v. Zimmer, Inc., 2013 OK 17, n.5, 299 P.3d 463; In re Harris, 2002 OK 35, ¶4 n.5, 49 P.3d 710. Although this Court will neither add nor delete such facts, we may consider uncontested facts supported by the record. Siloam Springs Hotel, LLC, 2017 OK 14 at ¶2; Howard, 2013 OK 17 at n.5; McQueen, Rains, & Tresch, LLP v. CITGO Petroleum Corp., 2008 OK 66, n.4, 195 P.3d 35. ¶3 Plaintiff-Appellant Perry Odom was an employee of Penske Logistics, LLC. Penske Logistics, LLC is a wholly owned subsidiary of Defendant-Appellee Penske Truck Leasing Co. (PTLC). After a trailer owned by PTLC fell on Odom and injured him, he filed a claim against his employer, Penske Logistics, LLC, pursuant to the Administrative Workers' Compensation Act (AWCA), 85A O.S. §§ 1-125. However, Perry Odom and his wife Carolyn Odom (collectively, the Odoms) also filed a lawsuit against PTLC in federal district court, alleging PTLC's tortious negligence caused Perry Odom's injury. ¶4 PTLC moved to dismiss the Odoms' federal district court action. PTLC argued the exclusive remedy provision of the AWCA, 85A O.S. Supp. 2013 § 5, barred the Odoms from suing a stockholder of Perry Odom's employer in district court, even if the alleged tort liability arose from duties independent of the employment relationship. The federal district court found that PTLC was the sole stockholder of Penske Logistics, and that dismissal was warranted pursuant to 85A O.S. Supp. 2013 § 5. ¶5 The Odoms appealed the district court's ruling to the Tenth Circuit. After briefs were submitted, the court held oral argument on November 13, 2017. On November, 22, 2017, the court certified its question of law to this Court. In its certification order, the Tenth Circuit noted the application of 85A O.S. Supp. 2013 § 5 to suits by an injured employee against an employer's stockholder appears to be a first impression issue in Oklahoma. ¶6 The Tenth Circuit cited Shadid v. K 9 Univ., LLC, 2017 OK CIV APP 45, 402 P.3d 698, for the proposition that 85A O.S. Supp. 2013 § 5 abrogated the dual-capacity doctrine as to employers, but concluded potential application to stockholders remains ambiguous from the statutory language read in context with the interpretation of Arkansas' very similar provision. The Tenth Circuit concluded by noting the wide-ranging consequences for tort law should 85A O.S. Supp. 2013 § 5 be interpreted to bar all suits by an injured employee against any stockholder of the employer for independent acts, and indicated it did not wish to make such an interpretation given the ambiguity of the relevant provision. II. REQUIREMENTS FOR ANSWERING CERTIFIED QUESTIONS ¶7 This Court has the power to answer certified questions of law if the certified questions are presented in accordance with the provisions of the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§ 1601-1611. Siloam Springs Hotel, LLC v. Century Sur. Co., 2017 OK 14, ¶14, 391 P.3d 111; Gov. Emps. Ins. Co. v. Quine, 2011 OK 88, ¶13, 264 P.3d 1245. This Court's discretionary power to answer is set out in 20 O.S. 2011 § 1602, which provides: The Supreme Court and the Court of Criminal Appeals may answer a question of law certified to it by a court of the United States, or by an appellate court of another state, or of a federally recognized Indian tribal government, or of Canada, a Canadian province or territory, Mexico, or a Mexican state, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state. Accordingly, in assessing whether a certified federal question of law should be answered by this Court, both factors mentioned by 20 O.S. 2011 § 1602 should be addressed: 1) would the answer be dispositive of an issue in pending litigation in the certifying court; and 2) is there established and controlling law on the subject matter? Siloam Springs Hotel, LLC, 2017 OK 14 at ¶14; Quine, 2011 OK 88 at ¶13.1 In this matter, it appears the question certified would be both dispositive to the underlying suit in the federal courts, and there is no controlling Oklahoma precedent on the subject matter given the recent adoption of the AWCA and changes made to the exclusive remedy provision. ¶8 This Court also possesses discretionary authority to reformulate the question(s) certified. Siloam Springs Hotel, LLC, 2017 OK 14 at ¶15; McQueen, Rains & Tresch, LLP v. Citgo Petroleum Corp., 2008 OK 66, ¶1 n.1, 195 P.3d 35; Tyler v. Shelter Mut. Ins. Co., 2008 OK 9, ¶1 n.1, 184 P.3d 496. This authority is set out in 20 O.S. 2011 § 1602.1, which provides: "[t]he Supreme Court of this state may reformulate a question of law certified to it." The certification order from the Tenth Circuit acknowledges this Court's power to reformulate the question certified as we see fit. ¶9 As we are constrained by those facts presented in the certification order, this Court's examination is confined to resolving questions of law. Quine, 2011 OK 88 at ¶14; Russell v. Chase Inv. Servs. Corp., 2009 OK 22, ¶8, 212 P.3d 1178. The question presented to this Court by the Tenth Circuit concerns the interpretation and application of the AWCA, 85A O.S. §§ 1-125; specifically, the AWCA's exclusive remedy provision codified at 85A O.S. Supp. 2013 § 5. Statutory interpretation presents a question of law. Corbeil v. Emricks Van & Storage, Guar. Ins., 2017 OK 71, ¶10, 404 P.3d 856; Legarde-Bober v. Okla. State Univ., 2016 OK 78, ¶5, 378 P.3d 562; Fulsom v. Fulsom, 2003 OK 96, ¶2, 81 P.3d 652. III. ANALYSIS ¶10 At issue in this matter is the interpretation of 85A O.S. Supp. 2013 § 5(A), which provides: The rights and remedies granted to an employee subject to the provisions of the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone else claiming rights to recovery on behalf of the employee against the employer, or any principal, officer, director, employee, stockholder, partner, or prime contractor of the employer on account of injury, illness, or death. Negligent acts of a co-employee may not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well or other operation for exploring for, drilling for, or producing oil or gas shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or deceased workers whose immediate employer was hired by such operator or owner at the time of the injury or death. The Tenth Circuit wishes to know the effect of this provision on the dual-capacity doctrine, specifically with regard to stockholders of an employer. 1. The dual-capacity doctrine previously permitted suits by employeesagainst employers if the employer occupied a second capacity that conferred upon them obligations independent of those imposed uponthem as an employer. ¶11 In order to answer the question certified, it is helpful to discuss this Court's prior application of the dual-capacity doctrine under the now-repealed Oklahoma Workers' Compensation Act (OWCA). Recognizing that the OWCA did not prohibit an employee from maintaining a common-law action against a negligent third person, in Weber v. Armco, Inc. this Court explained the dual-capacity doctrine in the following manner: an employer who was generally immune from tort liability might become liable to their employee as a third-party tortfeasor; if they occupied, in addition to their capacity as an employer, a second capacity that conferred upon them obligations independent of those imposed upon them as an employer. 1983 OK 53, ¶5, 663 P.2d 1221. ¶12 In Weber, the Court explained the parameters of the dual-capacity doctrine in the context of products liability lawsuits, and that analysis is worth revisiting here: This concept of duality, which confers third-party status upon the employer, is more meaningful when viewed in terms of an employer having a dual persona. An employer may become a third person if he possesses a second persona so completely independent from and unrelated to his status as an employer, that by established standards, the law recognizes it as a separate legal person. The determinative issue is one of identity, not of activity or relationship. Duality may be created by statute, e.g., a one-man corporation [the corporation is a separate legal person because the statute so decrees]; or it may be recognized by long-established precedent in common-law or equity such as the status of a trustee or guardian. The term dual persona provides legal clarity because it focuses upon the identity of the employer and not upon activity or relationship. A single legal person may be said to have many capacities, as the term capacity has no fixed legal meaning. As a result, few courts have extended the dual-capacity doctrine far enough to destroy employer immunity when only a separate relationship or theory of liability existed. The majority of jurisdictions have refused to apply the dual-capacity doctrine under a products liability theory, when the employer manufactures, modifies, distributes or installs a product used in the employee's work. Application of the dual-capacity doctrine requires that the second persona of the employer be completely independent from his obligations as an employer. If the employer is also the manufacturer of the product which caused the employee's injury, the two personas of manufacturer and employer are interrelated. An employer has a duty to provide a safe workplace for his employees. If an employer provides an employee with a defective machine or tool to use in his work, he has breached his duty as a manufacturer to make safe machinery, and his duty as an employer to provide a safe working environment. Yet, the two duties are so inextricably wound that they cannot be logically separated into two distinct legal personas. 1983 OK 53 at ¶¶6-7 (footnotes omitted). 2. Title 85A O.S. Supp. 2013 § 5 abrogates the dual-capacity doctrine Withregard to employers. ¶13 Prior decisions of this Court concerning the dual-capacity doctrine relied upon previous iterations of the exclusivity provisions of Oklahoma workers' compensation law that are markedly different from the current exclusivity provision of the AWCA at issue in this matter. See Price v. Howard, 2010 OK 26, 236 P.3d 82; Dyke v. St. Francis Hosp., Inc., 1993 OK 114, 861 P.2d 295; Deffenbaugh v. Hudson, 1990 OK 37. Compare 85A O.S. Supp. 2013 § 5 with 85 O.S. 2011 § 302 (Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014); 85 O.S. Supp. 2010 § 12 (Repealed by Laws 2011, SB 878, c. 318, § 87, eff. August 26, 2011). ¶14 The plain language of 85A O.S. Supp. 2013 § 5 unambiguously abrogates the dual-capacity doctrine with regard to employers as defined in the AWCA. The Court of Civil Appeals recognized this change in Shadid v. K 9 Univ., LLC, 2017 OK CIV APP 45, 402 P.3d 698. The pertinent language of 85A O.S. Supp. 2013 § 5 states: No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. ¶15 The question at issue in this cause that most concerns the Tenth Circuit, however, is different than the question considered by the Court of Civil Appeals in Shadid. The plaintiff in Shadid sued her employer in an attempt to invoke the dual-capacity doctrine. In contrast, the Tenth Circuit's certification order in this matter establishes that PTLC was not Perry Odom's employer, but rather a stockholder of the employer. Perry Odom's employer, Penske Logistics, LLC, is in fact a wholly-owned subsidiary of PTLC.2 3. The language and effect of 85A O.S. Supp. 2013 § 5 on the dual-capacitydoctrine with regard to stockholders is ambiguous. ¶16 The issue in this cause, then, is what effect 85A O.S. Supp. 2013 § 5 has on suits filed by an injured employee against a stockholder of their employer. It is this issue that raises the question of potential ambiguity in the language of 85A O.S. Supp. 2013 § 5(A). ¶17 The cardinal rule of statutory interpretation is to ascertain and give effect to legislative intent and purpose as expressed by the statutory language. Am. Airlines, Inc. v. State, ex rel. Okla. Tax Comm'n, 2014 OK 95, ¶33, 341 P.3d 56; Ledbetter v. Howard, 2012 OK 39, ¶12, 276 P.3d 1031; Villines v. Szczepanski, 2005 OK 63, ¶9, 122 P.3d 466. It is presumed that the Legislature has expressed its intent in a statute's language and that it intended what it so expressed. McClure v. ConocoPhillips Co., 2006 OK 42, ¶12, 142 P.3d 390; Villines, 2005 OK 63 at ¶9; TXO Prod. Corp. v. Okla. Corp. Comm'n, 1992 OK 39, ¶7, 829 P.2d 964. ¶18 Only where legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity, are rules of statutory interpretation employed. Rouse v. Okla. Merit Prot. Comm'n, 2015 OK 7, n.13, 345 P.3d 366; Am. Airlines, Inc., 2014 OK 95 at ¶33; Villines, 2005 OK 63 at ¶9. The test for ambiguity in a statute is whether the statutory language is susceptible to more than one reasonable interpretation. American Airlines, Inc., 2014 OK 95 at ¶33; YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶6, 136 P.3d 656; In re J.L.M., 2005 OK 15, ¶5, 109 P.3d 336. Where a statute is ambiguous, or its meaning uncertain, it is to be given a reasonable construction, one that will avoid absurd consequences if this can be done without violating legislative intent. Am. Airlines, Inc., 2014 OK 95 at ¶33; Wylie v. Chesser, 2007 OK 81, ¶19, 173 P.3d 64; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶5 , 829 P.2d 15. The legislative intent will be ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each. American Airlines, Inc., 2014 OK 95 at ¶33; Keating v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882, 886; State ex rel. Dept. of Human Servs. v. Colclazier, 1997 OK 134, ¶9, 950 P.2d 824, 827. ¶19 Ambiguity arises in this instance when one considers the application of 85A O.S. Supp. 2013 § 5(A) to entities other than an employer, because the language of the statute is susceptible to more than one reasonable interpretation. The first sentence of 85A O.S. Supp. 2013 § 5(A) makes the AWCA the exclusive remedy for employees seeking to recover for injury against not just the employer, but other entities related to the employer, including stockholders. It provides: The rights and remedies granted to an employee subject to the provisions of the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone else claiming rights to recovery on behalf of the employee against the employer, or any principal, officer, director, employee, stockholder, partner, or prime contractor of the employer on account of injury, illness, or death. Title 85A O.S. Supp. 2013 § 5(A) (emphasis added). The third sentence of 85A O.S. Supp. 2013 § 5(A) addresses the dual-capacity doctrine directly and is where ambiguity arises.3 For purposes of analysis, the third sentence of 85A O.S. Supp. 2013 § 5(A) is best broken down into its two main clauses. The first portion of the sentence provides: "[n]o role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, ...." Title 85A O.S. Supp. 2013 § 5(A). The sentence then concludes with a second clause, which provides: "and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have." Title 85A O.S. Supp. 2013 § 5(A). ¶20 The Tenth Circuit noted the multiple potential interpretations of the relevant provisions of 85A O.S. Supp. 2013 § 5(A) in its certification order. On the one hand, the Tenth Circuit noted the inclusion of the term "stockholder" in multiple provisions of 85A O.S. Supp. 2013 § 5(A) suggests an attempt by the Legislature to broaden the exclusive remedy provision's applicability to entities such as stockholders of the employer. Certification of Question of State Law, p. 5. On the other hand, the final clause of the third sentence of 85A O.S. Supp. 2013 § 5(A) seems to address the dual-capacity doctrine directly and yet omits any reference to stockholders. In fact, it seems to concern only the dual capacities of the employer: "and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have." Title 85A O.S. Supp. 2013 § 5(A) (emphasis added). ¶21 The Tenth Circuit reached the conclusion that the statute is ambiguous in this context. Further, the Tenth Circuit expressed concern through a hypothetical that certain interpretations of 85A O.S. Supp. 2013 § 5(A) could have wide-ranging consequences, especially if the provision serves to bar suits against stockholders of an employer even if the tort liability arises completely independent of the employment relationship.4 ¶22 The Odoms assert that even though the terms "employer" and "employee" are defined in the AWCA5, "stockholder" is not. The Odoms also assert that the term "stockholder" is not found within the AWCA's definition of "employer." Therefore, the Odoms assert the language of 85A O.S. Supp. 2013 § 5(A) is indicative of legislative intent that specific relationships beyond those of "employer" and "employee" do not matter for purposes of the exclusive remedy provision.6 Accordingly, the Odoms press this Court to adopt an interpretation of 85A O.S. Supp. 2013 § 5(A) where only those principals, officers, directors, or stockholders of an employer who are acting in their role, capacity, or persona as an employer, be shielded from third-party tort liability under the exclusive remedy provision. Or, as they put it "there is absolutely no legislative intent behind shielding a separate corporate entity from liability for its own independent conduct merely because it owns stock in an injured worker's employer." Appellant's Brief in Chief, p. 6. ¶23 The Odoms also argue that such an interpretation is consistent with the Court of Civil Appeals' holding in Shadid, because that cause involved a traditional dual-capacity case: an employer with multiple roles, capacities, or personas. PTLC, the Odoms argue, is not an employer with multiple roles but simply a stockholder, and therefore should be liable for its independent conduct. ¶24 The Odoms further agree with the Tenth Circuit's concerns that any other interpretation would produce potentially absurd results, where individuals who happen to own a single share of stock in an employer could escape liability for completely independent and unrelated torts committed against an employee. ¶25 PTLC, however, asserts 85A O.S. Supp. 2013 § 5(A) unambiguously expands the protections provided by the exclusive remedy provision in a broad fashion, and protects the entire set of categories--"employer, principal, officer, director, employee, or stockholder" --from suit regardless of any other capacity or role they may possess. In other words, PTLC asserts the intent of the Legislature was to abrogate the dual-capacity doctrine with respect to the same classes to which it was providing exclusive remedy protections. ¶30 However, PTLC urges this Court not to consider hypothetical outcomes posited by the Tenth Circuit and by the Odoms. Rather, PTLC essentially argues that application of 85A O.S. Supp. 2013 § 5(A) must still hinge, to some extent, upon the nature of the conduct and the relationship between the parties, and it is that relationship which allows 85A O.S. Supp. 2013 § 5(A) to shield PTLC from suit. ¶31 PTLC argues it is the sole stockholder and parent corporation of the employer, Penske Logistics, rather than some minority stockholder. PTLC argues it owns the trucks used by its subsidiary, the employer, and Perry Odom. Further, it argues the trucks were used in furtherance of the employment relationship and related directly to the business of the employer. "If not for the employment status, his employer would not have provided that equipment to Mr. Odom. Thus, the use of equipment provided by an employer is directly associated with the employment relationship unlike the dog bite hypothetical." Appellee's Brief, p. 15. Essentially, PTLC argues that its duties did not arise independently from the employment relationship, and 85A O.S. Supp. 2013 § 5(A) should therefore bar the Odoms' suit even if Section 5 did not fully and automatically bar all suits against the enumerated categories for employment-related injuries. ¶32 Both parties appear to recognize that in order to avoid the sweeping and potentially absurd results posited by the Tenth Circuit, there must be some relationship between a stockholder such as PTLC and the employment of the injured employee in order for the exclusive remedy provisions of 85A O.S. Supp. 2013 § 5(A) to attach and bar suit. ¶33 Both parties and the Tenth Circuit also reference the Arkansas exclusive-remedy provision, noting the Arkansas administrative workers' compensation framework was a large influence on the drafting and adoption of the AWCA.7 However, the Arkansas exclusive remedy provision is not identical to 85A O.S. Supp. 2013 § 5(A). It provides: The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his or her capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. Ark. Code. Ann. § 11-9-105(a) (emphasis added). The emphasized language in the Arkansas provision above is not present in 85A O.S. Supp. 2013 § 5(A), even though the Oklahoma provision does contain the later language of "other than that existing in the role of employer of the employee." This discrepancy is part of why the Tenth Circuit has asked this Court for guidance. ¶34 Arkansas court decisions interpreting that state's exclusive remedy provision imply some nexus between a shareholder and the employment relationship is necessary for the exclusive remedy provision to attach. See Honysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64, 69 (2010); Stocks v. Affiliated Foods Sw., Inc., 363 Ark. 235, 236-237, 213 S.W.3d 3, 4-5 (2005) (remanding for a determination on whether stockholder was acting in capacity of employer at the time of employee's injury, and hence whether workers' compensation was the exclusive remedy); Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 172, 965 S.W.2d 85, 808 (Ark. App. 1998) (holding employer was a persona of its sole owner and officer, because sole owner and officer was acting as owner, agent, and employee of employer at time of injury). ¶35 As the above discussion illustrates, 85A O.S. Supp. 2013 § 5(A) is subject to more than one reasonable interpretation and is therefore ambiguous. See Am. Airlines, Inc., 2014 OK 95 at ¶33; YDF, Inc., 2006 OK 32 at ¶6; In re J.L.M., 2005 OK 15 at ¶5. Because of this ambiguity, it must be given a reasonable construction, one that will avoid absurd consequences if this can be done without violating legislative intent. Am. Airlines, Inc., 2014 OK 95 at ¶33; Wylie, 2007 OK 81 at ¶19; TRW/Reda Pump, 1992 OK 31 at ¶5. This Court is also required to strictly construe the provisions of the AWCA in the event of ambiguity. Title 85A O.S. Supp. 2013 § 106; Brown v. Claims Mgmt. Res., Inc., 2017 OK 13, ¶21, 391 P.3d 111.8 Further, we must interpret statutes in a manner which renders every word and sentence operative, not in a manner which renders a specific statutory provision nugatory. Brown, 2017 OK 13 at ¶22; TWA v. McKinley, 1988 OK 5, ¶9, 749 P.2d 108; In re Supreme Court Adjudication of Initiative Petition in Tulsa, Concerning a One Cent Sales Tax Increase for Funding Additional Police Personnel and Comp., 1979 OK 103, ¶ 7, 597 P.2d 1208. 4. The dual-capacity doctrine is not fully abrogated with regard tostockholders of an employer. ¶36 Close examination of the provisions of 85A O.S. Supp. 2013 § 5(A) indicates that even though the provision lacks the "acting in his or her capacity as an employer" language found in the Arkansas provision, the bar against filing suit against stockholders of an employer cannot be absolute. For one, it would lead to the potential absurd consequences that so concerned the Tenth Circuit in its certification order, and this Court is bound to find a construction that would avoid such absurdities. Further, such an interpretation does not make sense in the context of the rest of the provision referencing the dual-capacity doctrine, which provides: No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. Title 85A O.S. Supp. 2013 § 5(A) (emphasis added). Statutes must be read to render every part operative, and to avoid rendering it superfluous or useless. Bryant v. Comm'r of the Dep.t of Pub. Safety, State of Okla., 1996 OK 134, ¶11, 937 P.2d 496; Medina v. State, 1993 OK 121, ¶8 n.10, 871 P.2d 1379. ¶37 Recent decisions of this Court have stressed that the workers' compensation system is a mutual compromise between employers and employees, and that exclusivity was at the heart of the grand bargain between employers and employees. See Vasquez v. Dillard's, Inc., 2016 OK 89, ¶26, 381 P.3d 768; Evans & Assocs. Util. Services v. Espinosa, 2011 OK 81, ¶14, 264 P.3d 1190. In that context, abrogation of the dual-capacity doctrine with respect to employers is in keeping with this compromise because what matters for the purposes of exclusivity is the employment relationship and not any other role the employer may have. See 85A O.S. Supp. 2013 § 5(A). But an interpretation that extends the protections of the exclusivity provision absolutely to potentially legally distinct non-employer entities such as stockholders, regardless of how passive their connection to the employment relationship is, goes far beyond that original purpose and conflicts with later portions of 85A O.S. Supp. 2013 § 5(A). ¶38 The language of the statute implies an inversion of the traditional dual-capacity doctrine set out in Weber. Under that rule, an employer could become a third person if the employer possessed a second persona so completely independent from and unrelated to the status of an employer, that by established standards the law recognized it as a separate legal person. Weber, 1983 OK 53, ¶6. What mattered, we explained, was not activity or relationship, but identity. Weber, 1983 OK 53, ¶6. ¶39 The role of employer to employee is the only role, capacity, or persona of the stockholder that matters for purposes of the AWCA. A stockholder may lose its status as a legal third person and fall under the exclusive remedy protections of 85A O.S. Supp. 2013 § 5(A) if the stockholder possesses a persona that is not independent from that of the employer. More simply stated, is the stockholder acting in the role of employer, rather than being a mere passive stockholder? Whether this test is satisfied must be determined on a case-by-case basis. Making that determination in this matter involves facts and analysis beyond the scope of the question of law certified to us by the Tenth Circuit. See Quine, 2011 OK 88 at ¶14; Russell v. Chase Inv. Services. Corp., 2009 OK 22, ¶8, 212 P.3d 1178. 5. The Odoms' constitutional claims are outside the scope of the questioncertified. ¶40 The Odoms also assert constitutional claims, arguing that an affirmative answer to the Tenth Circuit's certified question would render 85A O.S. Supp. 2013 § 5(A) unconstitutional as a special law in violation of Okla. Const. art. 5, § 46, and would violate the due process requirements of Okla. Const. art. 2, § 7 and the access to the courts provisions of Okla. Const. art. 2, § 6. PTLC, however, asserts that the Odoms' constitutional claims are beyond the scope of the question certified by the Tenth Circuit, and further, were not timely raised in the underlying federal litigation and therefore should not be considered by this Court. ¶41 PTLC also raises the procedural requirements of Fed. R. Civ. P. 5.19 and asserts the Odoms failed to comply with the requirements of the rule, and failed to in any way question the constitutionality of 85A O.S. Supp. 2013 § 5(A) prior to the federal district court's initial dismissal of PTLC, raising it only on a motion to reconsider. Regardless, it does not appear from the record before this Court that the constitutionality of 85A O.S. Supp. 2013 § 5(A) was considered or ruled upon by the federal courts prior to the Tenth Circuit's certification order. ¶42 In general, the questions certified define the scope of this Court's decision when answering certified questions of law. See Avemco Ins. Co. v. White¸ 1992 OK 147, ¶¶5-6, 841 P.2d 588; Fairview State Bank v. Edwards, 1987 OK 53, n.1, 739 P.2d 994; Ladd Petroleum Corp. v. Okla. Tax. Comm'n, 1980 OK 159, n.4, 619 P.2d 602. Further, Rule 1.10(f) of the Oklahoma Supreme Court Rules provides that briefs are to be strictly limited to the question certified. 12 O.S. Supp. 2013, ch. 15, app. 1. Perhaps most importantly, this Court refrains from applying rules of federal procedure, such as Fed. R. Civ. P. 5.1, on the issues, facts, and proof in causes underlying certified federal questions, and further, refrains from consideration of constitutional issues not embraced in or inextricably intertwined with the certified question. In City of Tahlequah v. Lake Region Elec., Co-op, Inc., we explained: Because the appeal from which the certified question emanates is not before us for resolution, we refrain (1) from applying the declared state-law response to the facts elicited in the federal-court litigation and (2) from passing upon the effect of federal procedure on the issues, facts and proof in the case. We have briefly outlined the case's factual underpinnings to place the certified question in a proper perspective. It is for the United States Tenth Circuit Court of Appeals to analyze our answer's impact on the case and facts ultimately before it. Lastly, we note that City raises constitutional questions (based upon the Legislature's alleged repeal of an act and its effect upon vested rights and proceedings instituted to enforce the same) which are neither embraced in nor inextricably intertwined with the U.S. Court of Appeals for the Tenth Circuit's certified question. To the extent that issues (constitutional or otherwise) are raised in the parties' briefs which are beyond the certified question's scope, the Court refrains from addressing the same. 2002 OK 2, ¶5, 47 P.3d 467 (emphasis added). ¶43 Finally, the Odom's own arguments concerning the constitutionality of 85A O.S. Supp. 2013 § 5(A) hinge upon a particular answer to the certified question before us. Because this Court does not answer the certified question strictly in the affirmative, the Odom's constitutional issues are not implicated, by their own admission. For all of the above reasons, the Court declines to exceed the bounds of the question certified by the Tenth Circuit and consider the constitutionality of 85A O.S. Supp. 2013 § 5(A) in this instance. IV. CONCLUSION ¶44 In answer to the question of law certified to this Court by the Tenth Circuit, the AWCA abrogated the dual-capacity doctrine with regards to employers. Title 85A O.S. Supp. 2013 § 5(A) does not bar an employee from bringing a cause of action in tort against a stockholder of their employer for independent tortious acts when the stockholder is not acting in the role of employer. CERTIFIED QUESTION ANSWERED CONCUR: COMBS, C.J., GURICH, V.C.J., KAUGER, WINCHESTER,EDMONDSON, COLBERT, and WYRICK, JJ. DISSENT: REIF, J. (by separate writing) FOOTNOTES 1 As this Court noted in Siloam Springs Hotel, LLC v. Century Sur. Co., we have routinely declined to answer certified questions of law for a host of reasons: "We have elected to decline to answer questions certified in a number of causes. Scottsdale Ins. Co. v. Tolliver, 2005 OK 93, 127 P.3d 611 [Declined to answer certified question where controlling Oklahoma precedent existed on the issue certified.]; Hammock v. United States, 2003 OK 77, 78 P.3d 93 [Declined to answer one of two certified questions because of lack of legal relationship necessary to determine the issue.]; Bituminous Casualty Corp. v. Cowen Constr. Co., 2002 OK 34, 55 P.3d 1030, 106 A.L.R.5th 713 [Declined to answer one of two questions certified where response to one question disposed of the case.]; Cray v. Deloitte Haskins & Sells, 1996 OK 102, 925 P.2d 60 [Declined to answer certified question since federal judge made final determination on issue of duty such that Supreme Court was without judicial authority to either affirm or reverse that judgment.]" 2017 OK 14, ¶14 n.1, 391 P.3d 111 (quoting Ball v. Wilshire Ins. Co., 2007 OK 80, ¶4 n. 8, 184 P.3d 463). 2 Perry Odom has separately pursued remedies against his employer, Penske Logistics, LLC, before the Oklahoma Workers' Compensation Commission. Certification of Question of State Law, p.3. 3 The meaning and application of the second sentence of 85A O.S. Supp. 2013 § 5(A), which provides "[n]egligent acts of a co-employee may not be imputed to the employer" is not an issue in this matter. The last sentence of 85A O.S. Supp. 2013 § 5(A) makes owners and operators of oil and gas wells principal employers for purposes of extending immunity from civil liability. This provisions was recently determined to be an unconstitutional special law by this Court in Strickland v. Stephens Prod. Co., 2018 OK 6, --- P.3d ----. The offending provision was severed from the remainder of 85A O.S. Supp. 2013 § 5(A). 4 The Tenth Circuit's certification order provides: The interpretation of the provision can have wide-ranging consequences. Consider the following example. Jones works for National Cable, a publicly traded company, as a service installer. Jones goes to Smith's home to set up his cable service. As part of a diversified portfolio, Smith happens to hold several shares of National Cable stock. Unfortunately for Jones, Smith has a pit bull Smith knows to be violent. While Jones is installing the cable, Smith's pit bull gets loose from a kennel that Smith has negligently closed. The pit bull attacks and injures Jones. If the AWCA bars suit against stockholders of an employer even if the tort liability arises from duties independent of the employment relationship, then Jones cannot sue Smith for what would otherwise be obviously tortious conduct. Certification of Question of State Law, pp. 5-6 5 The definitions are found at 85A O.S. Supp. 2013 § 2(18)(a) and (19), and provide: 18. a. "Employee" means any person, including a minor, in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his or her employer and excluding one who is required to perform work for a municipality or county or the state or federal government on having been convicted of a criminal offense or while incarcerated. "Employee" shall also include a member of the Oklahoma National Guard while in the performance of duties only while in response to state orders and any authorized voluntary or uncompensated worker, rendering services as a firefighter, peace officer or emergency management worker. Travel by a policeman, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency, shall be deemed to be in the course of employment. ... 19. "Employer" means a person, partnership, association, limited liability company, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association, corporation, or limited liability company, departments, instrumentalities and institutions of this state and divisions thereof, counties and divisions thereof, public trusts, boards of education and incorporated cities or towns and divisions thereof, employing a person included within the term "employee" as defined in this section. Employer may also mean the employer's workers' compensation insurance carrier, if applicable. Except as provided otherwise, this act applies to all public and private entities and institutions. Employer shall not include a qualified employer with an employee benefit plan as provided under the Oklahoma Employee Injury Benefit Act in Sections 107 through 120 of this act; 6 In support of this argument, the Odoms cite to the following language in Section 5: No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. 85A O.S. Supp. 2014 § 5(A) (emphasis added). 7 Generally, where one state has adopted the uniform laws or statutes from another state, at the time of such adoption, decisions from the latter state are persuasive in the former state's construction of such laws. Price v. Sw. Bell Telephone Co., 1991 OK 50, ¶11, 812 P.2d 1355. 8 As this Court has previously noted: [T]he rule of strict construction, as applied to statutes, does not mean that words shall be so restricted as not to have their full meaning, but merely means that everything shall be excluded from the operation of the statutes so construed which does not clearly come within the meaning of the language used. Am. Airlines, Inc. v. State ex rel. Okla. Tax Comm'n, 2014 OK 95, ¶ 31, 341 P.3d 56 (quoting Colcord v. Granzow, 1928 OK 211, ¶ 18, 278 P. 654). 9 Fed. R. Civ. P. 5.1 provides: (a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly: (1) file a notice of constitutional question stating the question and identifying the paper that raises it, if: (A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or (B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and (2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned--or on the state attorney general if a state statute is questioned--either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose. (b) Certification by the Court. The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned. (c) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional. (d) No Forfeiture. A party's failure to file and serve the notice, or the court's failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted. Reif, J., dissenting: ¶1 The United States Court of Appeals for the 10th Circuit has presented this Court with a certified question of unsettled Oklahoma law, as provided in 20 O.S.2011, §§ 1601 - 1611. The 10TH Circuit has a pending appeal that involves a controversy over the exclusive remedy/immunity provisions in section 5 of Oklahoma's Administrative Workers' Compensation Act, 85A O.S. Supp. 2016, § 1 et seq. The appeal arose from a tort suit brought by Perry and Carolyn Odom against Penske Truck Leasing Co., the parent company of Mr. Odom's direct employer Penske Logistics, LLC. The Odoms seek to recover for injuries Mr. Odom sustained while working for Penske Logistics and for which workers' compensation benefits were paid. The United States District Court for the Western District of Oklahoma dismissed this suit because (1) Penske Truck Leasing is the sole stockholder in Penske Logistics and (2) the first sentence in section 5(A) extends exclusive remedy/immunity protection to a "stockholder" of an employer who is subject to the Workers' Compensation Act. ¶2 The Odoms appealed this dismissal, contending that the exclusive remedy protection in the first sentence in section 5(A) is qualified by the third sentence in this section. The Odoms basically argue that the third sentence limits immunity to instances where the stockholder has acted in "the role of employer." The Odoms assert Penske Truck Leasing did not fulfill this role in regard to Mr. Odom's employment. The task for this Court is to determine Legislative intent concerning exceptions to the exclusive remedy/immunity protection provided by workers' compensation. ¶3 From the inception of workers' compensation in Oklahoma, the rule that workers' compensation provides the exclusive remedy for job-related injuries has been founded on statute. Laws 1915, ch. 246, art. 2, § 2. This first statute contained a single exception for cases where the employer had failed to secure the payment of compensation. In such cases, an action in court to recover damages was allowed, but this claim was to be prosecuted by the State Industrial Commission on behalf of the employee. An amendment in 1919 kept most of the language in the first statute, but specified the action for damages was to be brought by the injured employee or his representative, not the Commission. Laws 1919, ch. 14, § 5. ¶4 An amendment in 1951 added language that declared workers' compensation was not only exclusive, but also "in place of all other liability of the employer . . . at common law or otherwise." 85 O.S.1951, § 12. This amendment also extended protection to "any . . . employees," and made exclusivity binding on the an employee's "spouse, personal representative, parents, dependents, or any other person." Id. Like prior versions, there was a single exception for cases where the employer failed to secure compensation. Id. This amendment clearly expanded the scope of exclusive remedy protection as a substitute for liability "at common law or otherwise." ¶5 In 1982, the Legislature again amended the statute making workers' compensation the exclusive remedy for job-related injuries. 85 O.S. Supp. 1982, § 12. This amendment referred to the exclusive remedy rule as "immunity" for the first time. Id. The amendment also specially addressed the liability of other employers and their employees on the same job as the injured worker. The amendment stated that immunity would not extend to such other employers and their employees unless the other employer stood "in the position of an intermediate or principal employer," including the situation of special master to a loaned servant. Id. In this amendment, the Legislature demonstrated that it would specifically and clearly address any employment relationships it intended to be excepted from the exclusive remedy/immunity protection of workers' compensation. ¶6 In 1984, a special rule of immunity was added. Architects, professional engineers and land surveyors were extended immunity for "services performed at or on the site of a construction project . . . but not [for] negligent preparation of design plans and specifications." 85 O.S. Supp. 1984 , § 12. Again, the Legislature clearly and specifically addressed the scope of the exclusive remedy/immunity rule and an exception therefrom. ¶7 The statutory language addressing the exclusive remedy rule and immunity provided by workers' compensation was again amended in 2011. 85 O.S.2011, § 302. The most noticeable change made by this amendment is the division of the statute into subsections (A) - (I). The second most noticeable change is the addition in subsection (A) of a second exception to the exclusive remedy/immunity rule. This new exception applies in cases of an intentional tort committed by an employer, as more fully explained in subsection (B). The third change made by the legislature was to specially provide in subsection (H) that operators and owners of oil and gas wells and other drilling operations would be treated as "immediate employers" entitled to immunity.1 Once again, the Legislature has clearly and specifically addressed employment relationships covered by the exclusive remedy/immunity rule and an exception to the rule. ¶8 The current statutory law governing the exclusive remedy and immunity protection of workers' compensation is 85A O.S. Supp. 2016, § 5. This statute has preserved for the administrative system nearly all of the legislative enactments on this subject since the inception of workers' compensation. The first sentence in subsection 5(A) continues the long standing rule that "the rights and remedies granted to an employee subject to . . . Workers' Compensation . . . shall be exclusive of all other rights and remedies . . . ." Id. (emphasis added). In addition, the first sentence preserves the long standing application of this rule to employers and their employees. ¶9 The first sentence in subsection 5(A) also does something new, however, by extending the exclusive remedy/immunity protection to "any" principal, officer, director, stockholder, partner, or prime contractor of the employer. These are the common agents, along with employees, through whom artificial entity employers act. ¶10 Although a new provision, the second sentence of section 5(A) reinforces exclusivity and immunity. The second sentence prohibits imputing the negligent act of a co-employee to the employer. ¶11 A more difficult challenge is presented by the third sentence in section 5(A). The first clause in the third sentence cryptically declares that "No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration of the purposes of this act . . . ." Id. To be sure, the relationship of this declaration to existing law is not as readily apparent as in the case of the first sentence. ¶12 While lacking a counterpart in prior statutory law, this declaration does address and eliminate the case law exception to exclusive remedy/immunity recognized in Weber v. Armco, Inc., 1983 OK 53, ¶10, 663 P.2d 1221, 1226-7. This case said workers' compensation would not be the exclusive remedy where "the employer . . . step[s] outside the boundaries of the employer-employee relationship [and] creat[es] separate and distinct duties to the employee . . . ." Id.; 663 P.2d at 1227. Legislative intent to nullify this "outside role or persona" exception is found in the further declaration in the second clause: "the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have." 85A O.S. Supp. 2016, §5. ¶13 Perhaps the best reason to reject the Odoms' interpretation of the cryptic first clause in sentence three is that it results in an exception to the exclusive remedy/immunity rule that the Legislature did not clearly and explicitly provide. The Legislature considered and addressed the subject of exceptions in section 5(B). In doing so, the Legislature provided only two exceptions; one in cases where the employer fails to secure the payment of compensation and the other in cases of injuries caused by the intentional torts of the employer. The failure to secure compensation exception has existed since the inception of workers' compensation. The intentional tort exception with special conditions has been the subject of legislation since 2011. ¶14 Moreover, in section 5(H), the Legislature also provided a special exception in cases of architects, professional engineers, and land surveyors. These parties are shielded by the exclusive remedy/immunity rule "for services performed at or on the site of a construction project, but . . . not [for] the negligent preparation of design plans and specifications." Id. ¶15 If the Legislature intended to limit or qualify the right of principals, officers, directors, employees, stockholders, partners and prime contractors to claim exclusive remedy/immunity, it would have expressly done so as it did in sections 5(B) and 5(H), and has consistently done in the past. Instead, the Legislature extended the protection to "any" principal, officer, director, employee, stockholder, or prime contractor of the employer. The use of the word "any" within a statute is equivalent and has the force of "every" and "all." State ex rel Porter v. Ferrell, 1998 OK 41, ¶9, 959 P.2d 576, 578. These terms reflect intent that the subject matter which they modify have "broad and expansive reach." Prescott v. Oklahoma Capitol Preservation Commission, 2015 OK 54, ¶4, 373 P.3d 1032, 1033. ¶16 Finally, the statutory command that the Administrative Workers' Compensation Act is to be strictly construed weighs against recognizing exceptions not clearly stated by the Legislature. 85A O.S.2011, § 1. A strict construction of subsection 5(A) would be as follows: (1) "The rights and remedies granted to an employee subject to the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies . . . against the employer . . . on account of injury, illness, or death." 85 O.S. Supp. 2016, § 85 (emphasis added); (2) this exclusivity applies "regardless of the multiple roles, capacities, or personas the employer may be deemed to have," because the only "relevant role" for purposes of the Act is "the role of employer;" and (3) an employer who has liability under the Act for an injury, illness or death is protected from civil suit by the exclusive remedy/immunity provisions along with the employer's principals, officers, directors, employees, stockholders, partners, and prime contractors, unless one the specific exceptions to exclusivity applies. This is the general sense of the subsection 5(A) when read in its entirety. ¶17 In the case at hand, Penske Truck Leasing established (1) Mr. Odom worked for Penske Logistics at the time of his job-related injury, (2) Penske Logistics paid workers' compensation benefits to Mr. Odom, and (3) Penske Truck Leasing is a stockholder in Penske Logistics. By virtue of the express language in subsection 5(A), workers' compensation is Mr. Odom's exclusive remedy and Penske Truck Leasing, as a stockholder of Penske Logistics, is immune from civil suit to recover "other rights and remedies." Subsection 5(A) imposes no other burden or condition on Penske Truck Leasing to establish and to enforce its immunity. This is the answer I would give to 10th Circuit's certified question. FOOTNOTES 1 This provision was carried over to section 5, but was subsequently found to be unconstitutional in Strickland v. Stephens Production Company, 2018 OK 6, __ P.3d __.. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Civil Appeals Cases CiteNameLevel 2017 OK CIV APP 45, 402 P.3d 698, SHADID v. K 9 UNIVERSITY LLCDiscussed at Length Oklahoma Supreme Court Cases CiteNameLevel 1987 OK 53, 739 P.2d 994, 58 OBJ 1823, Fairview State Bank v. EdwardsDiscussed 1988 OK 5, 749 P.2d 108, 59 OBJ 325, TWA v. McKinleyDiscussed 1990 OK 37, 791 P.2d 84, 61 OBJ 1018, Deffenbaugh v. HudsonCited 1991 OK 50, 812 P.2d 1355, 62 OBJ 1785, Price v. Southwestern Bell Telephone Co.Discussed 1992 OK 31, 829 P.2d 15, 63 OBJ 682, TRW/Reda Pump v. BrewingtonDiscussed at Length 1992 OK 39, 829 P.2d 964, 63 OBJ 942, TXO Production Corp. v. Oklahoma Corp. Com'nDiscussed 1992 OK 147, 841 P.2d 588, 63 OBJ 3185, Avemco Ins. Co. v. WhiteDiscussed 1993 OK 114, 861 P.2d 295, 64 OBJ 2864, Dyke v. Saint Francis Hosp., Inc.Discussed 1993 OK 121, 871 P.2d 1379, 64 OBJ 2872, Medina v. StateDiscussed 2001 OK 110, 37 P.3d 882, 72 OBJ 3672, KEATING v. EDMONDSONDiscussed 2002 OK 2, 47 P.3d 467, 73 OBJ 359, CITY OF TAHLEQUAH v. LAKE REGION ELECTRIC, CO-OP, INC.Discussed 2002 OK 34, 55 P.3d 1030, BITUMINOUS CASUALTY CORP. v. COWEN CONSTRUCTION, INC.Discussed 2002 OK 35, 49 P.3d 710, IN RE HARRISDiscussed 2003 OK 77, 78 P.3d 93, HAMMOCK v. UNITED STATESDiscussed 2003 OK 96, 81 P.3d 652, FULSOM v. FULSOMDiscussed 2005 OK 15, 109 P.3d 336, IN THE MATTER OF J.L.M.Discussed at Length 2005 OK 63, 122 P.3d 466, IN THE MATTER OF THE ESTATE OF VILLINESDiscussed at Length 2005 OK 93, 127 P.3d 611, SCOTTSDALE INSURANCE COMPANY v. TOLLIVERDiscussed 2006 OK 32, 136 P.3d 656, YDF, INC. v. SCHLUMAR, INC.Discussed at Length 2006 OK 42, 142 P.3d 390, MCCLURE v. CONOCOPHILLIPS COMPANYDiscussed 2007 OK 81, 173 P.3d 64, WYLIE v. CHESSERDiscussed at Length 2007 OK 80, 184 P.3d 463, BALL v. WILSHIRE INSURANCE COMPANYDiscussed 2008 OK 9, 184 P.3d 496, TYLER v. SHELTER MUTUAL INSURANCE CO.Discussed 2008 OK 66, 195 P.3d 35, McQUEEN, RAINS & TRESCH, LLP v. CITGO PETROLEUM CORP.Discussed at Length 1996 OK 102, 925 P.2d 60, 67 OBJ 2955, Cray v. Deloitte Haskins & SellsDiscussed 2009 OK 22, 212 P.3d 1178, RUSSELL v. CHASE INVESTMENT SERVICES CORP.Discussed at Length 1996 OK 134, 937 P.2d 496, 68 OBJ 25, Bryant v. Commissioner of Dept. of Public SafetyDiscussed 2010 OK 26, 236 P.3d 82, PRICE v. HOWARDDiscussed 2011 OK 81, 264 P.3d 1190, EVANS & ASSOC. UTILITY SERVICES v. ESPINOSADiscussed 2011 OK 88, 264 P.3d 1245, GOVERNMENT EMPLOYEES INSURANCE CO. v. QUINEDiscussed at Length 2012 OK 39, 276 P.3d 1031, LEDBETTER v. HOWARDDiscussed 2013 OK 17, 299 P.3d 463, HOWARD v. ZIMMER, INC.Discussed at Length 2014 OK 95, 341 P.3d 56, AMERICAN AIRLINES, INC. v. STATE ex rel. OKLAHOMA TAX COMMISSIONDiscussed at Length 2015 OK 7, 345 P.3d 366, ROUSE v. OKLAHOMA MERIT PROTECTION COMMISSIONDiscussed 2015 OK 54, 373 P.3d 1032, PRESCOTT v. OKLAHOMA CAPITOL PRESERVATION COMMISSIONDiscussed 2016 OK 78, 378 P.3d 562, BOBER v. OKLAHOMA STATE UNIVERSITYDiscussed 2016 OK 89, 381 P.3d 768, VASQUEZ v. DILLARD'S, INC.Discussed 2017 OK 13, 391 P.3d 111, BROWN v. CLAIMS MANAGEMENT RESOURCES INC.Discussed at Length 2017 OK 14, 391 P.3d 111, SILOAM SPRINGS HOTEL, LLC v. CENTURY SURETY COMPANYDiscussed at Length 1979 OK 103, 597 P.2d 1208, IN RE SUPREME COURT ADJUDICATION, ETC.Discussed 2017 OK 71, 404 P.3d 856, CORBEIL v. EMRICKS VAN & STORAGEDiscussed 2018 OK 6, STRICKLAND v. STEPHENS PRODUCTION COMPANYDiscussed 1928 OK 211, 278 P. 654, 137 Okla. 194, COLCORD v. GRANZOWDiscussed 1980 OK 159, 619 P.2d 602, Ladd Petroleum Corp. v. Oklahoma Tax CommissionDiscussed 1997 OK 134, 950 P.2d 824, 68 OBJ 3526, STATE ex rel. DEPT. OF HUMAN SERVICES v. COLCLAZIERDiscussed 1998 OK 41, 959 P.2d 576, 69 OBJ 1884, STATE ex rel. PORTER v. FERRELLDiscussed 1983 OK 53, 663 P.2d 1221, Weber v. Armco, Inc.Discussed at Length Title 20. Courts CiteNameLevel 20 O.S. 1601, Short TitleCited 20 O.S. 1602, Power to AnswerDiscussed 20 O.S. 1602.1, Power to Reformulate QuestionCited Title 85. Workers' Compensation CiteNameLevel 85 O.S. 302, RepealedDiscussed 85 O.S. 12, RepealedDiscussed at Length 85 O.S. 85, RepealedCited Title 85A. Workers' Compensation CiteNameLevel 85A O.S. 1, Short TitleDiscussed 85A O.S. 2, DefinitionsCited 85A O.S. 5, ExclusivityDiscussed at Length 85A O.S. 106, Act ConstructionCited oscn EMAIL: webmaster@oscn.net Oklahoma Judicial Center 2100 N Lincoln Blvd. Oklahoma City, OK 73105 courts Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals District Courts decisions New Decisions Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals programs The Sovereignty Symposium Alternative Dispute Resolution Early Settlement Mediation Children's Court Improvement Program (CIP) Judicial Nominating Commission Certified Courtroom Interpreters Certified Shorthand Reporters Accessibility ADA Contact Us Careers Accessibility ADA
742 F.2d 1225 117 L.R.R.M. (BNA) 2468, 101 Lab.Cas. P 11,188 Raymond P. SCOGGINS, Plaintiff-Appellant,v.The BOEING COMPANY, INC., a Delaware corporation; andInternational Association of Machinists and AerospaceWorkers, Aerospace Industrial District Lodge # 751, AFL-CIO,a labor organization, Defendants-Appellees. No. 83-3778. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 7, 1984.Decided Sept. 18, 1984. 1 Carleton H.A. Taber, Lewis Lynn Ellsworth, Salter, McKeehen, Gudger & Rabine, Seattle, Wash., for plaintiff-appellant. 2 Hugh Hafer, Hafer, Cassidy & Price, John F. Aslin, Perkins, Cole, Stone, Olsen & Williams, Seattle, Wash., for defendants-appellees. 3 Appeal from the United States District Court for the Western District of Washington. 4 Before KILKENNY and NELSON, Circuit Judges, and EAST,* District Judge. EAST, District Judge: 5 Raymond Scoggins brought this action against his former employer, The Boeing Company, Inc. (Boeing), under Section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, for breach of the collective bargaining agreement and against his union, the International Association of Machinists and Aerospace Workers, Aerospace Industrial District Lodge # 751 (the union), for violating its duty of fair representation. The District Court granted summary judgment for Boeing, ruling that the suit was barred by the statute of limitations. The District Court also granted summary judgment for the union based upon Scoggins' failure to exhaust internal union remedies. We affirm. I. FACTS 6 Scoggins was terminated by Boeing on June 25, 1980. As a Boeing employee, Scoggins was represented by the union. Following his termination, Scoggins met with a union business agent, seeking the union's help in his efforts to get his job back. The agent subsequently interviewed witnesses, reviewed Boeing's files, and met with Boeing representatives to discuss Scoggins' termination. 7 On August 27, 1980, the business agent notified Scoggins by letter that further efforts on Scoggins' behalf would be futile. Scoggins complained to the business agent about the agent's decision not to pursue the grievance further. However, Scoggins made no effort to contact the local union's president or to file an internal union appeal of the agent's decision. On September 16, 1980, the union withdrew Scoggins' grievance. 8 Scoggins brought this action on December 28, 1981, sixteen months after he received notice of the union's decision not to pursue his grievance. In his complaint, Scoggins alleged that Boeing breached the collective bargaining agreement by terminating him without just cause. He further alleged that the union breached its duty of fair representation by failing to process his grievance through arbitration. Scoggins moved for summary judgment against Boeing and the union, and also moved to strike the defendants' affirmative defenses of statute of limitations and failure to exhaust internal union remedies. In response, the union moved for summary judgment. 9 The District Court granted the union's motion for summary judgment and dismissed the action as to both the union and Boeing.1 The court concluded that Scoggins failed to exhaust explicit and mandatory union remedies. The court also concluded that either the six month statute of limitations established by 29 U.S.C. Sec. 160(b) or the three month limitation of Wash.Rev.Code Sec. 7.04.180 (1974) applied to Scoggins' action, and that Scoggins' action was therefore time barred. II. DISCUSSION A. Statute of Limitations 10 Prior to the U.S. Supreme Court's decision in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the statute of limitations for hybrid Section 301 actions in Washington was three years. Christianson v. Pioneer Sand & Gravel Co., 681 F.2d 577 (9th Cir.1982) (three year statute of limitations for suits against employers); Washington v. Northland Marine Co., 681 F.2d 582 (9th Cir.1982) (three year statute of limitations for suits against unions). In Mitchell, the Supreme Court held that a state limitation period for vacation of an arbitral award controlled the employee's Section 301 action against his employer Mitchell, 451 U.S. at 64, 101 S.Ct. at 1564. In Washington, this period is three months. See Wash.Rev.Code Sec. 7.04.180 (1974). The Mitchell opinion, however, invited a square presentation of the question whether a more appropriate period would be the six-month limitation period found in Section 10(b) of the National Labor Relations Act. 451 U.S. at 60 n. 2, 101 S.Ct. at 1562 n. 2. In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Court decided this question. The Court held that the limitation period as to claims against both an employer and a union is six months. We must decide whether either of these decisions applies to Scoggins' action, filed eight months after Mitchell and sixteen months before DelCostello. 11 We have held that DelCostello does not apply retroactively either to claims against unions for breach of the duty of fair representation, see Barina v. Gulf Trading and Transportation Co., 726 F.2d 560, 562-63 (9th Cir.1984); McNaughton v. Dillingham Corp., 722 F.2d 1459 (9th Cir.1984), petition for cert. filed, 52 U.S.L.W. 3829 (U.S. May 15, 1984) (No. 83-1739); Edwards v. Teamsters Local 36, 719 F.2d 1036, 1040-41 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984), or to claims against employers under the Labor Management Relations Act. See Barina v. Gulf Trading and Transportation Co., 726 F.2d at 563-64. The six-month limitations period announced in DelCostello cannot, therefore, govern Scoggins' action.2 12 Scoggins, however, did not file his action until eight months after the Supreme Court decided Mitchell. Scoggins argues that based on the Supreme Court's decision in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), and this court's decisions in Barina and Singer v. Flying Tiger Line Inc., 652 F.2d 1349 (9th Cir.1981), Mitchell should not be applied to bar Scoggins' action against Boeing.3 In Chevron Oil, the Supreme Court declined to apply a shorter statute of limitations retroactively to extinguish a claim, stating that "[i]t would ... produce the most 'substantial inequitable results,' ... to hold that the respondent 'slept on his rights' at a time when he could not have known the time limitation that the law imposed upon him." Chevron Oil, 404 U.S. at 108, 92 S.Ct. at 356. Based on factors set forth in Chevron Oil,4 we refused to apply Mitchell retroactively to a case filed three years prior to the Mitchell decision. Singer v. Flying Tiger Line Inc., 652 F.2d at 1353. At the time the plaintiff in Singer filed his action, the statute of limitations, according to an earlier decision by this court,5 appeared to be three years. It was not until three years after the plaintiff filed his action that the Supreme Court announced that the statute of limitations was actually a shorter period. In Barina, we also held that Mitchell would not be retroactively applied to bar the plaintiff's suit. The plaintiff had filed his suit within two months of the Supreme Court's Mitchell decision and approximately one year after the cause of action accrued. Under the law prevailing prior to Mitchell, the plaintiff's suit would have been timely filed, but under Mitchell, the statute of limitations would have been 100 days. It would have produced "substantial inequitable results" to hold that the plaintiff in Barina had "slept on his rights" by not filing within 100 days of the time the cause arose; at that point in time, the statute of limitations was thought to be three years. The plaintiff, however, quickly filed suit after Mitchell announced the shorter statute of limitations. 13 The above cases do not help Scoggins. Although Scoggins was not aware of the shorter statute of limitations period when his cause of action accrued in August, 1980, Scoggins slept on his rights after the Mitchell decision. Unlike the plaintiff in Singer, who did not know the "correct" statute of limitations until several years after he filed his lawsuit, Scoggins knew the correct statute of limitations eight months before he filed his suit. Unlike the plaintiff in Barina, who quickly filed his lawsuit after the Court announced in Mitchell the shorter statute of limitations, Scoggins delayed filing his lawsuit until eight months after the Mitchell decision. It is not inequitable to hold Scoggins to the shorter statute of limitations period applicable under Mitchell. Consequently, Scoggins' action against Boeing is governed by a three month statute of limitations (see Wash.Rev.Code Sec. 7.04.180 (1974)) appropriate under Mitchell. Since Scoggins did not file his case until eight months after the Supreme Court announced the Mitchell decision, the District Court properly dismissed Scoggins' action against Boeing as time barred. 14 Mitchell, however, applies only to suits against employers; it does not apply to suits against unions. See n. 3, supra. Since neither Mitchell nor DelCostello governs the statute of limitations for Scoggins' action against the union, the appropriate statute of limitations for this suit is three years. See Washington v. Northland Marine Co., 681 F.2d 582, 586 (9th Cir.1982). Scoggins filed suit sixteen months after his cause of action accrued. The suit was therefore timely filed and the District Court erred in dismissing the suit against the union as time barred. B. Exhaustion of Internal Union Remedies 15 The District Court also determined that Scoggins' suit against the union should be dismissed because Scoggins failed to exhaust internal union appeals procedures. The determination whether to require exhaustion is left to the sound discretion of the trial court. Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1214 (9th Cir.1980). Scoggins argues that the District Court abused its discretion in making this determination. 16 The Supreme Court has identified three factors to guide trial courts in determining whether to require an employee to exhaust such appeals procedures: (1) whether union officials are so hostile to the employee that the employee could not obtain a fair hearing; (2) whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to accord the employee the full relief sought under Section 301; and (3) whether exhaustion would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits. Clayton v. Automobile Workers, 451 U.S. 679, 689, 101 S.Ct. 2088, 2095, 68 L.Ed.2d 538 (1981). On appeal, Scoggins relies primarily on the second factor in arguing that the District Court improperly required exhaustion.6 17 Although Scoggins argues on appeal that the union could neither award him the complete relief he sought nor reactivate his grievance, a careful search of the record reveals that Scoggins failed to make the reactivation argument to the District Court. When the union moved for summary judgment, the union submitted an affidavit and excerpts from the union constitution.7 The union used these documents to demonstrate to the District Court that internal union remedies were available to Scoggins. Scoggins, in his response to the union's motion for summary judgment, argued only that "[b]ecause, in this case, the internal union appeals procedures cannot grant the Plaintiff the complete relief sought in his Sec. 301 suit i.e., reinstatement, Clayton mandates that as a matter of law, the Union's motion [for summary judgment] be denied." Scoggins completely failed to argue to the District Court that the union could not reactivate the grievance. By emphasizing only half of Clayton's second factor and ignoring the other half, Scoggins failed to give the District Court a chance to determine whether there was a genuine issue of material fact for trial; i.e., whether the union could have reactivated the grievance. Scoggins may not make this argument for the first time on appeal. 18 In this circuit, when a party moves for summary judgment in a Section 301 action citing failure to exhaust internal union remedies, the moving party must first establish the availability of adequate internal union remedies; the burden then shifts to the party opposing the motion to respond by affidavits or otherwise and set forth specific facts showing that exhaustion of remedies would have been futile. See Keppard v. International Harvester Co., 581 F.2d 764 (9th Cir.1978). Scoggins failed to present any facts or arguments to the District Court to indicate that the union could not reactivate the grievance. Since Clayton requires only that the union be able to award the complete relief sought or reactivate the grievance, the District Court did not abuse its discretion in requiring exhaustion where Scoggins failed to suggest the union could not reactivate the grievance. See Hayes v. Brotherhood of Railway and Airline Clerks/Allied Services Division, 727 F.2d 1383, 1386 (5th Cir.), reh'g denied, 734 F.2d 219 (5th Cir.1984). CONCLUSION 19 The District Court did not err in dismissing Scoggins' suit against Boeing and the union. The District Court properly dismissed Scoggins' action against Boeing because the statute of limitations had run. The court also properly dismissed the action against the union because Scoggins had failed to exhaust internal union appeals procedures. 20 AFFIRMED. * Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation 1 Scoggins argues that the District Court could not grant summary judgment for Boeing since Boeing never moved for it. However, where one party moves for summary judgment, the trial court may sua sponte grant summary judgment to the non-moving party. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir.1982). Of course, "the moving party against whom summary judgment was rendered [must have] had a full and fair opportunity to ventilate the issues involved in the motion." Id. at 312. In this case, the statute of limitations question was thoroughly discussed upon Scoggins' motion 2 We recognize, as we did in Barina, 726 F.2d at 563 n. 5, that other circuits have reached contrary conclusions and applied DelCostello retroactively. Edwards v. Teamsters Local Union No. 36, McNaughton, and Barina, however, establish the law of this circuit and bind us. We also happen to agree 3 Mitchell applies only to suits against employers; it does not apply to suits against unions. Barina, 726 F.2d at 562; Edwards, 719 F.2d at 1039; McNaughton v. Dillingham Corp., 707 F.2d 1042, 1047-48 (9th Cir.1983), reh'g denied, 722 F.2d 1459 (9th Cir.), petition for cert. filed, 52 U.S.L.W. 3829 (U.S. May 15, 1984) (No. 83-1739). Consequently, the statute of limitations applicable under Mitchell governs only Scoggins' action against Boeing; it does not govern his action against the union Scoggins also argues that Mitchell applies only where a final arbitration decision was rendered; Scoggins' grievance was withdrawn prior to arbitration and, consequently, Scoggins asserts Mitchell should not be applied even to his action against Boeing. This court, however, has previously rejected this argument. McNaughton, 707 F.2d at 1046. Mitchell applies whether a grievance is withdrawn or goes to arbitration. Id. 4 In Chevron Oil, the Supreme Court listed three factors to be considered by courts when reviewing the issue of retroactivity: (1) whether the decision established a new principle of law; (2) whether retroactive application will retard or further the purposes of the rule in question; and (3) whether applying the new decision will produce substantial inequitable results. Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355 5 In Price v. Southern Pacific Transportation Co., 586 F.2d 750, 753 (9th Cir.1978), this court held that the statute of limitations for a suit against a union in California was three years 6 Scoggins also argues that the first factor--whether union officials are hostile to the employee--supports his position that exhaustion should not be required. Scoggins asserts that hostility should be inferred from a statement made by the union business representative who handled Scoggins' grievance; the representative told Scoggins that further pursuit of the grievance would be futile. Scoggins argues that this feeling of futility indicates hostility on the part of the entire union. However, "[f]or there to be an adequate demonstration of hostility, it must appear that persons involved in the intraunion appeals procedure are hostile toward the union member...." Hayes v. Brotherhood of Ry. & Airline Clerks/Allied Serv. Div., 734 F.2d 219, 220 (5th Cir.1984). See also Varra v. Dillon Companies, Inc., 615 F.2d 1315, 1317 (10th Cir.1980). Scoggins failed to present any evidence to the District Court, and fails to present any evidence now, of any indication of hostility on the part of anyone in the union who would have acted on Scoggins' appeal 7 On appeal, Scoggins argues that these documents should not have been considered by the District Court. He objects that they are improperly authenticated and contain hearsay statements. Scoggins, however, failed to object to the evidence in District Court. Consequently, Scoggins waived any objections to the evidence and the District Court properly considered it. United States v. Dibble, 429 F.2d 598, 603 (9th Cir.1970) (Wright, J., concurring); Davis v. Sears, Roebuck and Co., 708 F.2d 862, 864 (1st Cir.1983)
34 F.Supp.2d 1255 (1998) John McNEIL, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant. No. 98-6094-FR. United States District Court, D. Oregon. December 23, 1998. 1256 Kathryn Tassinari, Drew Johnson, Johnson, Cram, Harder & Wells, P.C., Eugene, OR, for Plaintiff. Kristine Olson, United States Attorney, William W. Youngman, Assistant United States Attorney, Portland, OR, Richard E. Buckley, Special Assistant United States Attorney, Seattle, OR, for Defendant. OPINION FRYE, District Judge. The plaintiff, John McNeil, filed this action under section 205(g) of the Social Security Act (the "Act") as amended, 42 U.S.C. § 405(g), to review and set aside the final decision of the Commissioner of Social Security (the "Commissioner") who denied his application for social security disability insurance benefits. PROCEDURAL BACKGROUND McNeil filed an application for Supplemental Security Income (SSI) and disability insurance on April 12, 1994, alleging disability due to Crohn's disease, amputated fingers, and forgetfulness. The application was denied on June 19, 1994. McNeil's request for reconsideration, filed on July 26, 1994, was denied on October 31, 1994. On December 21, 1994, McNeil filed a request for a hearing, which was held before an Administrative Law Judge ("ALJ") on March 22, 1996. The ALJ denied McNeil's claim on October 11, 1996. McNeil requested a review of the hearing decision on October 17, 1996. On March 5, 1998, the Appeals Council declined to review the ALJ's decision. McNeil then filed this action for review. FACTS McNeil was 51 years old at the time of the hearing. He is 6'2." His weight is stable at 225 pounds. He has an eighth grade formal education, and he has completed some of the ninth grade. Relevant work experience includes working as a machinist and seven months[1] as a gas station attendant, working four to five hours a day, a job which he left voluntarily. McNeil has not engaged in any substantial gainful activity since March 21, 1994. McNeil alleges disability because of Crohn's disease, which he says causes him to have frequent bowel movements; an amputation of the tip of his right thumb, with severed tendons; and an amputation of the tip of his right index finger. Although not seeking disability on theses grounds, McNeil also complains of knee pain and hip pain and, as the result of two auto accidents, neck and low back pain. McNeil further complains of "anger problems." There is also a discussion of treatment for Bell's palsy in the medical records. Finally, McNeil is a chronic carrier of Hepatitis C. 1. Testimony McNeil testified that he has suffered from Crohn's disease since 1976, and it continues to worsen. The first medical records discussing Crohn's disease are from 1982. 1257 When working as a gas station attendant, McNeil had "accidents" two or three times a month; that is to say, he would not be able to control his bowel movements. He would then have to leave work to go home and change clothing. McNeil stated that he hid his illness from his supervisor, so no one could corroborate his testimony. McNeil's counsel initially declined the ALJ's offer to accept corroboration from machinist supervisors or the gas station employer, but then decided that he would try to obtain such evidence. There was no corroboration in the record. McNeil also testified that he could not wear adult diapers because of the acidity of his stool. McNeil testified that he was fired from his job as a machinist in the State of California for spending too much time in the bathroom. During this period of time, McNeil had a drug problem. McNeil's normal weight is 185 pounds, but he believes that the steroids he took in 1992 contributed to his weight gain. McNeil was on the steroids for two to three months, 20 milligrams a day. McNeil's partially amputated thumb and finger did not interfere with his gas station work, which included using a cash register. 2. Medical Evidence McNeil has tried Prednisone, Dipentum, and Amodal (phonetic) to control his disease. Although surgery has been an option, McNeil has decided not to pursue that course of treatment. Disability Determination Service doctor, Martin Kehrli, M.D., concluded that McNeil should avoid machinery and heights, due to an expressed fear of heights. Consultative doctor, William Groh, M.D., and treating doctor, Terrance Hill, M.D., found that McNeil had overstated the symptomology of Crohn's disease at various times. Dr. Groh stated that Crohn's disease may limit McNeil's occupational endeavors if his employers do not allow him unlimited bathroom privileges and potential time off from work for flare-ups of the disease. On July 21, 1982, McNeil reported having up to 14 stools a day. On July 21, 1987, McNeil requested to have his stool sampled for parasites. On April 16, 1991, McNeil reported having 14 to 16 non-bloody stools a day. He also reported that he had seen a gastroenterologist, who advised him to consider surgery. As a result, he never went to another gastroenterologist. On May 14, 1991, McNeil reported having 12 to 13 small volume, watery, mucousy stools per day. On May 29, 1991, Timothy W. Burke, D.O., reported that McNeil was unable to work for the next sixty days due to his Crohn's disease. On July 10, 1991, Dr. Burke came to the medical impression that McNeil suffered from "functional gastric emptying disorder, possibly secondary to narcotic abuse vs. partial obstruction secondary to intestinal Crohn's disease." While in prison, McNeil would swallow balloons filled with drugs and regurgitate them at will, up to several days later. On July 30, 1991, McNeil reported having 4 to 5 loose, non-bloody stools per day. On September 9, 1991, McNeil reported having 7 to 8 loose, non-bloody stools per day. In 1992, treating doctor, David Cutsforth, Jr., M.D. stated that the bowel movements were occurring only twice daily. On January 30, 1992, McNeil reported that his bowel movements had changed from bloody, occurring 7 to 9 times a day, to showing no evidence of blood and occurring twice a day. On February 25, 1992, McNeil reported that he averaged 7 bowel movements per day in a 24-hour period of time, with no evidence of blood. On October 8, 1993, McNeil reported his Crohn's disease as stable. On October 26, 1993, McNeil reported to be "doing very well" with his Crohn's disease. On January 9, 1994, McNeil reported having 10 to 12 bowel movements per day, with blood from his hemorrhoids. Surgery as an 1258 option was discussed with gastroenterologist, Surinder M. Vasdev, M.D. On March 28, 1994, McNeil reported that he had 12 to 14 stools per day. On April 24, 1994, McNeil reported that he had to go to the bathroom 12 to 14 times a day. On June 4, 1994, McNeil reported that he had up to 14 bowel movements a day, with normally 6 to 8 bowel movements a day. On August 27, 1994, psychiatrist, Neil Falk, M.D., found that McNeil suffered from "some mild depression and cognitive impairment, but these likely would not impair him from working productively in gainful employment." TR 179. On October 28, 1994, John M. Pesandi, M.D. [name not legible from the records] stated that McNeil "appears to have overstated his baseline need for bathroom privileges and the frequency of his flareups." TR 108. On June 5, 1995, McNeil reported bowel movements up to 15 times a day. In a letter to an ALJ, dated April 1, 1996, Robert D. Wimmer, M.D. stated that McNeil had not reported any complaints of Crohn's disease to him in the past year of treatment, until March 27, 1996 when he complained of more frequent bowel movements. Upon referral to a gastroenterologist, blood tests did not show any evidence of a high degree of inflammation in the intestinal tract, which would be consistent with excessive bowel movements. Dr. Wimmer further stated: "In my opinion, his findings are inconsistent with his level of complaint." TR 246. Dr. Wimmer also reported: "As I stated in my previous opinion written to Mr. McNeil's lawyer, I'm unaware of any reason why Mr. McNeil couldn't be employed at a sedentary occupation" Id. The previous letter was regarding a motor vehicle accident on November 7, 1995. Dr. Wimmer then wrote another letter to McNeil's attorney, stating that "[a]ssuming [McNeil's] statements regarding his frequency and duration of bowel movements are accurate, then it would interfere with his work performance. The inflammatory disease would not, however, specifically interfere with his physical abilities to perform sedentary work." TR 259. On April 11, 1996, McNeil reported having at least 10 stools per day, including two to three times at night. On July 18, 1996, gastroenterologist, Albert E. Ryckman, M.D., discussed surgery with McNeil. 3. Vocational Evidence Vocational expert, Jennifer Coiner, testified that someone with Crohn's disease could not perform McNeil's past relevant work, but could perform the light, unskilled work of a hand packager with 210,000 jobs available nationally, film lab technician with 110,000 jobs available nationally, and a mail clerk in a large business sorting and distributing mail with 175,000 jobs available nationally. When considering the need for "unlimited" use of the bathroom, Coiner stated that as long as it did not interfere with one's work or required the individual to stay in the bathroom for two to three hours of an eight-hour workday, it would be acceptable to an employer. 4. ALJ Decision The ALJ discredited McNeil's testimony regarding his symptoms. The ALJ may only reject subjective symptom testimony for clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.1996). McNeil contends that the ALJ's findings are clear and convincing because (1) McNeil stated that he reads, walks, babysits his three-year-old daughter, and makes and sells jewelry; (2) McNeil has inconsistencies in reporting his educational level; (3) McNeil's involvement in over 200 armed robberies to support a drug habit and the manslaughter conviction for bludgeoning a man are tied to credibility and honesty; (4) McNeil sought no treatment for Crohn's disease from July of 1991 to January of 1994, including never lodging complaints with his treating physician until March 27, 1996; and (5) McNeil never demonstrated any discomfort with his Crohn's disease while in the ALJ's waiting area for office visits or during the fifty-minute hearing. 1259 McNeil contends that the ALJ's reasons for rejecting his claims are not clear and convincing because (1) McNeil's home activities are limited, and the Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits; (2) any inconsistencies with statements regarding education are readily explainable; (3) McNeil has been clean from heroin for 23 years,[2] so his prior criminal history should not be used to reject his symptom testimony; (4) the extended periods without treatment exist because McNeil did not think that there was anything doctors could do to help him; and (5) the fact the McNeil did not need to use the restroom during the ALJ's hearing is not inconsistent with McNeil's description of his limitations. STANDARD OF REVIEW This court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986). The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir.1986). To meet this burden, claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. §§ 404.1502, 416.920. First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140, 107 S.Ct. 2287; 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41, 107 S.Ct. 2287; see 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled. In step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id. at 141, 107 S.Ct. 2287; see 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141, 107 S.Ct. 2287. In step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform his past relevant work, the claimant is not disabled. If the claimant cannot perform his past relevant work, the burden of proof shifts to the Secretary. In step five, the Commissioner must establish that the claimant can perform work other than his past relevant work. Yuckert, 482 U.S. at 141-42, 107 S.Ct. 2287; see 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966. DISCUSSION 1. McNeil's Symptom Testimony Once the claimant produces objective medical evidence of an underlying impairment, the ALJ may not reject subjective 1260 complaints based solely on a lack of corroborative objective medical evidence regarding the alleged severity of the pain or degree of impairment. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.1991) (en banc) (emphasis added). When concluding that subjective complaints are not credible, the ALJ must make specific findings supporting this conclusion. Id. Such findings must be properly supported by the record, and must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds, and did not arbitrarily discredit a claimant's testimony regarding pain. Id. at 345-46. See also 20 C.F.R. § 404.1529 (1993). The ALJ must make findings on the record and must support those findings by pointing to substantial evidence in the record. Id. It is undisputed that an ALJ is entitled to make a credibility assessment of a claimant's testimony. Nevertheless, once the claimant establishes an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject claimant's testimony, providing there is no evidence of malingering. Smolen, 80 F.3d at 1281-82. "To determine whether the claimant's testimony regarding the severity of [his] symptoms is credible, the ALJ may consider ... (1) ordinary techniques of credibility evaluation ...; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities." Id. at 1284. Also the ALJ must consider the factors set forth in SSR 88-13, including the "claimant's work record and observations of treating and examining physicians and other third parties regarding, among other matters, the nature, onset, duration, and frequency of the claimant's symptom; precipitating and aggravating factors; functional restrictions caused by the symptoms; and the claimant's daily activities." Id. The court finds that the ALJ gave specific reasons for partially discrediting McNeil's testimony. The ALJ determined that the medical evidence established that McNeil has Crohn's ileitis and partial amputation of the thumb and index finger of the dominant right hand, which singly, or in combination, does not meet the criteria for any listed impairment. Of more importance for this court's review, the ALJ found that the "claimant's statements concerning his impairment and its impact on his ability to work are not entirely credible." TR 14. Although the ALJ found that McNeil was unable to perform his past relevant work as a machinist or gas station attendant because he could not wait for long periods of time for the cars to arrive, he found that "[c]onsidering the claimant's age, educational background, and residual functional capacity, he is able to make a successful vocational adjustment to unskilled work which exists in significant numbers in the national economy." TR 19. When determining the credibility of McNeil, the ALJ found that McNeil's stable weight and prolonged periods of time devoid of any treatment or complaints pertaining to his Crohn's disease were indicators that McNeil had exaggerated his symptoms. The ALJ was persuaded by the physicians who opined that McNeil was able to obtain employment, provided he had readily available access to a bathroom at all times. The ALJ also found it unlikely that McNeil was suffering from such a high number of bowel movements, yet failed to notify his primary care physician of the matter. It is proper to believe that a person who complains of up to 20 bowel movements a day would suffer from weight loss, which McNeil did not. It is also proper to rely on the opinions put forth by experienced physicians that a person suffering from Crohn's disease is able to be employed, provided they have access to bathroom facilities. With regard to the amputation of McNeil's fingers, the ALJ found that McNeil's ability to function in the workplace was not undermined because McNeil testified that he could perform his prior work as a gas station attendant, which included using the cash register. McNeil's own testimony was substantial evidence that his amputations did not render him disabled. The ALJ found that the evidence was inconsistent as to McNeil's education. McNeil denied that he had told two different examiners that he completed his GED while in prison. Although McNeil states that any 1261 inconsistencies can be explained, there is no explanation for the fact that two examiners have stated that McNeil completed a GED in prison when McNeil denies reporting this information. It is unlikely that two examiners would have made the same mistake. Furthermore, although McNeil's active involvement with drugs and criminal activity occurred in the distant past, the ALJ found that "such history cannot be completely divorced from the issue of credibility and honesty." TR 16. While McNeil contends that he is being punished for his past, it does not appear that the ALJ placed undue emphasis on this issue. Finally, the ALJ found that although the record indicates that McNeil suffered from Crohn's disease and amputation, the record does not support McNeil's complaints of memory loss or anti-social/depressive behavior hindering his employment opportunities. Indeed, the psychiatric evaluation provided in the record states that McNeil has good concentration and no significant memory impairment. Although the ALJ asked for corroborating evidence, it does not appear that he discredited McNeil's statements regarding his symptoms and their impact based solely on the lack of corroboration, as that it not allowed. See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.1991) (en banc). The court finds that the ALJ considered all of the relevant factors and did not arbitrarily discount McNeil's testimony regarding his subjective complaints. CONCLUSION The Commissioner's findings on the disabilities of McNeil, considering the record as a whole, are supported by substantial evidence. The decision of the Commissioner is affirmed. NOTES [1] McNeil reported to Dr. Neil Falk, M.D. that he had never held a job for more than six months. [2] The record indicates that McNeil had used illegal substances 18 months prior to an examination on August 27, 1994.
125 N.J. Super. 485 (1973) 311 A.2d 757 STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. NIKOLL BROZI, DEFENDANT-RESPONDENT. Superior Court of New Jersey, Appellate Division. Argued November 7, 1973. Decided November 26, 1973. 486 Before Judges CARTON, SEIDMAN and GOLDMANN. Mr. Neil H. Shuster, Assistant Prosecutor, argued the cause for appellant (Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney). Mr. Carl R. Lobel, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley C. Van Ness, Public Defender, attorney). The opinion of the court was delivered by CARTON, P.J.A.D. Defendant Brozi was convicted on a charge of kidnapping while armed and on two charges of assault with an offensive weapon and carrying a weapon without a permit. He was sentenced to a term of not less than 30 nor more than 32 years on the kidnapping while armed charge, to be served at the Youth Correctional Institution Complex at Yardville. Defendant was further sentenced to indeterminate terms at Yardville on the remaining convictions, the sentences to run concurrent with each other and with the kidnapping sentence. 487 On motion, defendant was resentenced on the kidnapping while armed charge to an indeterminate term with a maximum of 30 years. The State appeals, contending that the new sentence was improper because it failed to contain the minimum period of incarceration mandated by N.J.S.A. 2A:118-1. On this basis it urges that the original sentence should be reinstated. There is an obvious conflict between N.J.S.A. 2A:118-1, which mandates a minimum sentence of 30 years for anyone convicted of kidnapping, and N.J.S.A. 30:4-148, which directs that all sentences to the Youth Correctional Institution Complex must be for an indeterminate period without any minimum. The State's thesis is that this conflict should be resolved by strictly adhering to the mandatory minimum for kidnapping in order to implement the expressed legislative policy of imposing severe sanctions on those who are found guilty of this crime. Defendant, on the other hand, contends that no minimum sentencing should be imposed which would frustrate the expressed legislative policy contained in N.J.S.A. 30:4-148 of providing a more conducive atmosphere for rehabilitation of youthful offenders ordered to be confined at Yardville. This precise question has not been considered by the courts of New Jersey in connection with the crime of kidnapping. However, the relationship between reformatory sentences imposed pursuant to N.J.S.A. 30:4-146 and 155 and criminal statutes requiring the imposition of minimum and maximum sentencing has been discussed in a number of cases. State v. Ammirata, 104 N.J. Super. 304 (App. Div. 1969); State v. Pallitto, 107 N.J. Super. 96 (App. Div 1969), certif. den. 55 N J. 309 (1970); State v. Lavender, 113 N.J. Super. 576 (App. Div. 1971). The latest pronouncement is contained in the dissenting opinion of Judge Halpern in State v. Hopson, 114 N.J. Super. 146 (App. Div. 1971), which was adopted by the Supreme Court in 60 N.J. 1 (1971). We conclude that the 488 approach adopted in that case should be used in resolving the present conflict. Hopson involved a defendant convicted of possession of narcotics. Judge Halpern pointed out that if the Legislature intended to break away from its philosophy of reformatory sentencing, it could easily have done so by specifically creating an exception in narcotics cases. He concluded that since the Legislature did not mandate a two-year minimum when a reformatory sentence was being imposed under N.J.S.A. 24:18-47(c)(1) for possession of narcotics, there was consequently no reason why an indeterminate sentence could not be imposed without a minimum. We see no reason why a different result should obtain when a reformatory sentence is imposed for kidnapping. We are not persuaded by the State's argument that the two statutes may be read in pari materia; that the policy of both statutes can best be expressed by recognizing the legislative mandate for minimum sentences regardless of the place where it is to be served. This argument attempts to reconcile two very different philosophies of correction. When a court sets a minimum sentence it in effect states that a person's offensive conduct necessitates confinement for a certain period. This in essence is a retributive approach. Reformatory sentences are designed to correct and rehabilitate the offender and are based upon a philosophy of rehabilitation rather than retribution. State v. Horton, 45 N.J. Super. 44 (App. Div. 1957). It strikes us as incongruous to say to this defendant, a first offender, that he is sentenced to Yardville so that he can be rehabilitated and at the same time stipulate that this process must take a minimum of 30 years. The State seeks to distinguish Hopson solely on the basis that kidnapping is a more serious offense than possession of heroin. The flaw in this argument is that the gravity of the offense has no bearing on the issue. The issue is how to reconcile the conflicting statutes. There is no doubt that the Legislature considers kidnapping a serious crime and has continually increased the penalty 489 for such an offense. See State v. Johnson, 67 N.J. Super. 414, 420-423 (App. Div. 1961). The last amendment to N.J.S.A. 2A:118-1 was made in 1933. Applying the reasoning of Hopson, it can be assumed that had the Legislature felt that no person convicted of kidnapping could or should be given a reformatory sentence it could have so provided in one of the amendments to N.J.S.A. 30:4-148, which was last amended in 1970. N.J.S.A. 30:4-147 reads as follows: Any male person between the ages of 15 and 30 years, who has been convicted of a crime punishable by imprisonment in the State Prison, who has not previously been sentenced to a State Prison in this State, or in any other State, may be committed to the Youth Correctional Institution Complex. Defendant's situation fulfilled the requirements of this statute. The court below in its discretion sentenced him to the Youth Correctional Institution Complex. As a consequence, N.J.S.A. 30:4-148 with its no-minimum rule was applicable. Any other conclusion would be contrary not only to the Supreme Court's decision in State v. Hopson, supra, but also the recognized and approved legislative policy designed to rehabilitate youthful offenders rather than seek retribution. Affirmed.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before WOLFE, SALUSSOLIA, and ALDYKIEWICZ Appellate Military Judges UNITED STATES, Appellee v. Sergeant First Class CARMELO ANGEL-NERI United States Army, Appellant ARMY 20170658 Headquarters, 82d Airborne Division Fansu Ku, Military Judge Colonel Travis L. Rogers, Staff Judge Advocate For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA; Captain Benjamin A. Accinelli, JA (on brief and reply brief). For Appellee: Colonel Steven P. Haight, JA; Captain Jeremy Watford, JA (on brief). 26 March 2019 ---------------------------------------------------------------- SUMMARY DISPOSITION ON RECONSIDERATION ---------------------------------------------------------------- Per Curiam: Appellant complains that the military judge improperly rejected his guilty plea for fraternizing. 1 We agree with appellant that the military judge erred, but find the error to be harmless. 2 1 A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of two specifications of adultery in violation of Article 134, Uniform Code of Military Justice [UCMJ], and contrary to his plea, of one specification of failure to obey a lawful general regulation, in violation of Article 92, UCMJ. The convening authority approved the findings and adjudged sentence of a bad-conduct discharge, sixty days confinement, and reduction to the grade of E-1. 2 After due consideration, appellant’s remaining assignments of error and the matters he personally raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), do not warrant discussion or relief. ANGEL-NERI—ARMY 20170658 BACKGROUND Appellant’s court-martial involved two different inappropriate and adulterous relationships. The first relationship involved Second Lieutenant (2LT) LB. After graduating from West Point and completing the Officer Basic Course, 2LT LB reported to her first assignment as a fire direction officer of an artillery battery at Fort Bragg. Appellant was her platoon sergeant. Just over two and a half months after she reported, 2LT LB and appellant went to a local strip club together. At the club, the two did “body shots,” with 2LT LB drinking shots off of a waitress and appellant drinking a shot of alcohol that had been placed between 2LT LB’s breasts. A club bouncer observed 2LT LB sitting on appellant’s lap and kissing. The two then left the club together and went to appellant’s car where they had sexual intercourse. 3 The second inappropriate relationship involved Specialist (SPC) RN. Specialist RN worked in the battalion personnel section. While appellant was a senior non-commissioned officer in the operations section, he began having a sexual relationship with SPC RN. She became pregnant. Appellant broke off the relationship and told SPC RN to get a DNA test to confirm paternity. She demanded that he continue to see her and threatened to reveal the relationship to appellant’s wife and command. Appellant, who was married at the time of both of these inappropriate relationships, was charged with two specifications of adultery for having sexual relations with each woman. The military judge accepted appellant’s plea to both specifications. Appellant was also charged with fraternizing with SPC RN in violation of Army Reg. 600-20, Personnel-General: Army Command Policy [AR 600-20], para. 4-14(c) (6 Nov. 2014). In explaining why he was guilty of fraternization, appellant claimed that he had wrongly believed that there was nothing improper in having a sexual 3 Appellant was also charged with sexual assault of 2LT LB, in violation of Article 120, UCMJ, to which he pleaded not guilty. The government attempted to prove this charge at trial. Second Lieutenant LB testified that the sexual intercourse was not consensual. The defense argued that the two had been seen leaving the club holding hands. The club bouncer, trying to return to 2LT LB her phone and purse that she left in the club, found them having sex in the back seat of appellant’s vehicle. The bouncer’s testimony did not corroborate 2LT LB’s testimony that the sex was non- consensual. The court-martial found appellant not guilty of sexually assaulting 2LT LB. 2 ANGEL-NERI—ARMY 20170658 relationship with a soldier junior to him provided that the soldier was not in his supervisory chain. At trial, he admitted his belief was wrong, but maintained it was honestly held at the time of the offense. Based on these statements, the military judge rejected appellant’s plea. The government then proved up this charge and appellant was found guilty of fraternization. On appeal, appellant argues the military judge erred as a matter of law in rejecting appellant’s plea. The government concedes they cannot defend the military judge’s action. LAW AND DISCUSSION We review a military judge’s decision to accept a guilty plea for an abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “It is an abuse of discretion for a military judge to accept a guilty plea . . . if the ruling is based on an erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (citing Inabinette, 66 M.J. at 321-22). Ignorance of relevant facts may, in some cases, excuse otherwise criminal conduct. Ignorance of the law, however, ordinarily does not. Nothing about our superior court’s recent cases interpreting Elonis v. United States changes these principles. 135 S. Ct. 2001 (2015). For example, in United States v. Gifford, the Court of Appeals for the Armed Forces (CAAF) held that a servicemember may not be convicted of violating a general order prohibiting providing alcohol to persons under the age of twenty-one if that servicemember was not at least reckless as to the age of the persons to whom he or she provided alcohol. 75 M.J. 140, 146. Thus, under Gifford, ignorance of certain facts may excuse otherwise criminal conduct. Id. at 147-48. By contrast, ignorance of the law does not, and the CAAF explained the long-standing principle “ignorantia juris non excusat” is fully compatible with Elonis and its progeny. See id. at 143 n.4 (“The fact that actual knowledge of a general order is typically immaterial does not conflict with the coordinate truth that mens rea typically is an essential element of every criminal offense. [Gifford] involves a mistake of fact as to age, not a mistake of law . . . .”). Here, we see no legal basis for rejecting appellant’s plea based on his claim that he did not know that his conduct violated a general regulation. Had he claimed he did not know (or recklessly disregarded) that SPC RN was a junior enlisted soldier, or had he disclaimed knowledge that he was in a sexual relationship with her, there would be a substantial basis to question his guilty plea. But, it is no defense for appellant to claim that he did not know that an Army regulation 3 ANGEL-NERI—ARMY 20170658 prohibited non-commissioned officers from engaging in sexual relationships with junior enlisted soldiers. If knowledge of the law is neither an element of the offense nor an element of a defense, it is not a required admission at a guilty plea. 4 While we find the military judge erred in rejecting appellant’s plea, it is harmless in this case, and therefore we do not give any relief. In rejecting the accused’s plea and putting the burden on the government to prove its case, appellant was not materially prejudiced. This is not a case where the accused had a pretrial agreement and did not get the benefit of the agreement because the military judge erroneously rejected the plea. See, e.g., United States v. Dupont, ARMY 20180481, 2019 CCA LEXIS 118 (Army Ct. Crim. App. 14 Mar. 2019) (summ. disp.). As appellant pleaded guilty to committing adultery with SPC RN, and the adultery colloquy included appellant’s admission to nearly the same key facts as the offense of fraternization with SPC RN, the military judge was able to take into consideration appellant’s admission of those facts. Even if we were to reassess the sentence in accordance with the principles of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), recognizing appellant’s plea of guilty as a mitigating factor, we find the adjudged sentence is appropriate. CONCLUSION On consideration of the entire record, the findings of guilty and sentence are AFFIRMED. FOR THE COURT: MALCOLM H. MALCOLM H. SQUIRES, SQUIRES, JR. JR. Clerk of Clerk of Court Court 4 The military judge appeared to state that the required mens rea for an offense depends on whether it is a guilty plea or a contested case. It is the same in both instances. At a guilty plea the accused must admit to the relevant culpable mental state. This is done not to prove the offense, but to ensure the plea is knowing and voluntary. At a contested trial the government must prove the accused’s culpable mental state, but the proof can be accomplished by circumstantial evidence and by reasonable inference, and need not be admitted by the accused. 4
43 F.3d 1465 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.David T. CAREY, Plaintiff Appellant,v.Tom SCOTT; Frank Lavender, Sheriff of Raleigh County;Brenda Andrews, Defendants Appellees. No. 94-6849. United States Court of Appeals, Fourth Circuit. Submitted Oct. 4, 1994Decided Nov. 10, 1994. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Mary S. Feinberg, Magistrate Judge. (CA-93-611-5) David T. Carey, appellant pro se. Edgar Earle Bibb, III, Cleek, Pullin, Knopf & Fowler, Beckley, W.Va., for appellees. S.D.W.Va. DISMISSED. Before WILKINS, HAMILTON, and MICHAEL, Circuit Judges. PER CURIAM: 1 Appellant seeks to appeal from the magistrate judge's orders denying motion for appointment of counsel and addressing numerous pretrial motions. We dismiss the appeal for lack of jurisdiction because the order is not appealable. This Court may exercise jurisdiction only over final orders, 28 U.S.C. Sec. 1291 (1988), and certain interlocutory and collateral orders, 28 U.S.C. Sec. 1292 (1988); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The order here appealed is neither a final order nor an appealable interlocutory or collateral order. 2 We dismiss the appeal as interlocutory. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. DISMISSED
495 F.2d 1375 Peters & Co., Inc.v.Travelers Indemnity Co. 73-1629 UNITED STATES COURT OF APPEALS Seventh Circuit 4/1/74 1 N.D.Ill. AFFIRMED
630 F.2d 550 7 Fed. R. Evid. Serv. 188 William BAUMHOLSER and Eileen Baumholser, Plaintiffs-Appellees,v.AMAX COAL COMPANY, Defendant-Appellant. No. 78-1363. United States Court of Appeals,Seventh Circuit. Argued Feb. 9, 1979.Decided Sept. 22, 1980. 1 G. Daniel Kelley, Jr., Indianapolis, Ind., for defendant-appellant. 2 Terry R. Noffsinger, Evansville, Ind., for plaintiffs-appellees. 3 Before SWYGERT and CUMMINGS, Circuit Judges, and CROWLEY, District Judge.* 4 CROWLEY, District Judge. 5 Plaintiffs William and Eileen Baumholser brought this diversity action against defendant Amax Coal Company (Amax), alleging that blasting operations at Amax's surface coal mine caused extensive damage to the foundation and walls of their home approximately two miles from the mine. The jury returned a verdict in favor of the plaintiffs in the amount of $10,000.00. 6 Amax assigns three errors: (1) that Jack Barnes, a geologist from Indiana State University, was improperly qualified as an expert and should not have been permitted to testify on the issue of the proximate cause of damage to the Baumholser home; (2) that the admission into evidence of a survey conducted by Barnes assessing structural damage to the other residences in the area was erroneous and highly prejudicial; and (3) that the trial court's Instruction No. 11 incorrectly stated Indiana law on the measure of damages. We reject appellant's contentions on the issue of Barnes' qualification and the damage instruction and hold that, while the study should not have been admitted, its admission was harmless under the circumstances of this case. 7 Amax challenges Barnes' qualifications solely on the fact that Barnes has had no previous experience with strip mining or the effects of blasting and limited experience with seismographs and geophysics prospecting. Amax argues that general knowledge in the field of geology is insufficient to qualify a witness as an expert with respect to the specific issues involved in this case. Amax asserts that despite Barnes' academic credentials and experience in related areas, he lacks the precise technical background necessary to qualify him to render an opinion on the issue of whether the Amax blasting caused structural damage to the Baumholser residence. 8 Barnes, however, has had extensive academic and practical experience in the field of geology. He received a Bachelor of Science degree and a Master of Science degree in geology from the University of Michigan. He has worked as a geologist for twenty-five years, with experience as an exploration and research geologist, a consultant and a professor. He was also familiar with similar issues which had been studied by the Atomic Energy Commission. At the time of trial, he was president of the Indiana-Kentucky Geological Society and a member of the Federation of American Scientists and the American Association of Petroleum Geologists. 9 Any inquiry into the propriety of Barnes' giving expert opinion must necessarily begin with Rule 702 of the Federal Rules of Evidence, which provides: 10 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 11 It is clear that determination of expertise is a matter committed to the sound discretion of the trial judge. If the trial judge concludes that the witness possesses the background to give an expert opinion that finding will not be disturbed unless it is clearly erroneous. Lolie v. Ohio Brass Company, 502 F.2d 741 (7th Cir. 1974). Considering the qualifications of the witness the trial court was clearly correct in allowing him to testify as an expert. The fact that he had little actual experience in the study of blasts from coal mining operations did not disqualify him from expressing his opinion, which was based on general geological principles. Gardner v. General Motors Corp., 507 F.2d 525 (10th Cir. 1974); 3 Weinstein, Evidence, P 702(01). 12 Barnes testified that his study of buildings near the Amax mine revealed a direct correlation between structural damage and distance from the mine. Barnes arrived at his conclusions, in part, by studying the subsurface soil in the area and analyzing his findings in light of general scientific principles of the effects of spherical shock waves. This testimony is subject matter within the scope of a geologist's expertise. Thus, the trial judge did not err in admitting Barnes' opinion testimony. 13 Appellant next complains that a study conducted by Barnes should not have been admitted and that its admission seriously prejudiced Amax. The Barnes study consisted of statistics gathered by a questionnarie inquiry of 169 residents living within a six-mile radius from the mine concerning the number, length and width of cracks discovered in their homes. The interviewers were students at Indiana State University, parishioners of St. John's Church, homeowners in the area, Mr. Barnes and the Baumholsers. After the data was gathered, Barnes personally verified the information in 60 of the 169 interviews. The damage reported was then plotted on a map of the mining area according to the degree of damage and the relative distance from the center of the mine. Additionally, a graph, analyzing the type of home damage reported in terms of distance from the mine, was constructed. The entire study was admitted into evidence. It was a collection of a location map of the Ayrshire Mine; a diagram showing shock wave propagation; the home damage report used to gather data during the interview; a map showing the effects of strip mine blasting; a map showing the blast ring effect of strip mine blasting; a summary of the home damage survey relating the damage reported to the type of construction and blasting frequency; and a graph showing home damage as a function of distance from the mine. 14 Amax claims that the Barnes study is inadmissible under any theory. It contends that the study is hearsay which does not fall within any recognized exception. Further, it asserts that the study is inadmissible as the basis of opinion testimony under Rule 703 because the survey is not "of a type reasonably relied upon by experts in the particular field." Finally, Amax urges that the Barnes survey suffers from major flaws in its methodology which renders it inadmissible for any purpose because it is invalid. 15 Barnes testified, however, that the study was similar to the one conducted by the Atomic Energy Commission. 16 We agree with Amax that the study was hearsay and that it was not independently admissible. To qualify a study or opinion poll for admission into evidence, there must be a substantial showing of reliability. There must be some showing that the poll is conducted in accordance with generally accepted survey principles and that the results are used in a statistically correct manner. Pittsburgh Press Club v. United States, 579 F.2d 751 (3d Cir. 1978). When these requirements are satisfied surveys are admissible. Zippo Manufacturing Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y.1963) (scientifically conducted unbiased survey admissible to establish likelihood of confusion between products); James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266 (7th Cir. 1976) (survey conducted by qualified experts and impartial interviewer admitted on the issue of likelihood of confusion between distiller's label and restaurant sign); Randy's Studebaker Sales, Inc. v. Nissan Motor Corporation in U.S.A., 533 F.2d 510 (10th Cir. 1976) (customers' responses to questionnaires evaluating quality of dealer's service department admissible as reflective of customers' then-existing state of mind); Union Carbide Corp. v. Ever-Ready Inc., 531 F.2d 366 (7th Cir.), cert. denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976) (two surveys taken by an expert in market research and public opinion admissible on the issue of likelihood of confusion between Ever-Ready and Carbide products); Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 523 F.2d 1331 (2d Cir. 1975) (survey commissioned by domestic piano manufacturer to determine whether consumer confusion existed between its trade name and that of German manufacturer admissible); The President and Trustees of Colby College v. Colby College-New Hampshire, 508 F.2d 804 (1st Cir. 1975) (qualified survey evidence admissible to establish secondary meaning of plaintiff's name in minds of consuming public); Holiday Inns, Inc. v. Holiday Out in America, 481 F.2d 445 (5th Cir. 1973) (survey evidence supporting an allegation of likelihood of confusion of service marks admissible). 17 However, the lack of independent grounds for admissibility does not require reversal. Barnes was testifying as an expert and as such was entitled to rely on hearsay evidence to support his opinion, so long as that evidence was of a type reasonably relied upon by other experts in the field. That evidence need not be independently admissible. Rule 703 of the Federal Rules of Evidence provides: 18 The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. (emphasis added) 19 Barnes testified that a similar survey was conducted by the Atomic Energy Commission to study the effects of blasts in Colorado. This testimony was uncontradicted and unrebutted. It more than satisfied the threshold inquiry as to whether other experts would rely upon it. 20 This standard has been eloquently expressed in Standard Oil Company of California 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), where the court stated at page 222: 21 It is common practice for a prospective witness, in preparing himself to express an expert opinion, to pursue pretrial studies and investigations of one kind or another. Frequently, the information so gained is hearsay or double hearsay, in so far as the trier of the facts is concerned. This, however, does not necessarily stand in the way of receiving such expert opinion in evidence. It is for the trial court to determine, in the exercise of its discretion, whether the expert's sources of information are sufficiently reliable to warrant reception of the opinion. If the court so finds, the opinion may be expressed. If the opinion is received, the court may, in its discretion, allow the expert to reveal to the jury the information gained during such investigations and studies. Wide latitude in cross-examination should be allowed. 22 In admitting the testimony the trial judge carefully considered the competing factors. He allowed extensive cross-examination, both on the reliability of the survey and the conclusions reached. The defendant produced its own experts to testify about the effects of the blasting. Under all the circumstances, we cannot find that the admission of the survey itself had any prejudicial effect on the jury. 23 Finally, Amax contends that the trial court's instruction on the measure of damages was incorrect as a matter of law. The court instructed the jury: 24 If you find that the plaintiffs are entitled to recover in this action on Count I of their complaint, then you must determine the amount of money which will fairly compensate them for those damages which are proved by the evidence to have resulted from the detonations set off by the defendant. 25 The measure of such damages, if any, is the difference between the fair market value of plaintiffs' dwelling and premises immediately before the damage and the fair market value of plaintiffs' dwelling and premises immediately after the damage. However, if you find that the damage, if any, is repairable and not permanent, then you may consider the cost of repairs in determining the amount of damages. In the event you do consider the cost of repairs in determining the amount of damages due and owing the plaintiffs, then you may not also apply the differential fair market value in arriving at such damages. In other words, you may use one or the other of said methods, but not both. 26 Amax maintains that, under Indiana law, the proper measure of damages for property which has been permanently damaged is the decrease in the market value of the property while the proper measure of damages for non-permanent damage is the cost of restoration. Further, relying on General Outdoor Advertising Co. v. LaSalle Realty Corp., 141 Ind.App. 247, 218 N.E.2d 141 (1966), Amax asserts that permanent injury is defined as injury wherein the cost of repairs exceeds the market value of the building prior to injury. 27 Appellant misinterprets General Outdoor Advertising Co. There, in fashioning a flexible measure of damages appropriate to the facts of the case before it, the court defined permanent injury as injury exceeding the cost of restoration. However, the court specifically stated that this measure of damages would not necessarily be equally applicable in all situations. Under dissimilar facts, the General Outdoor Advertising Co. definition of permanent damage is inappropriate. Damage resulting from continuous blasting is a unique situation and, therefore, the trial court was not compelled to adhere to the General Outdoor Advertising Co. definition of permanent injury. 28 Accordingly, the judgment is affirmed. * The Honorable John Powers Crowley, Northern District of Illinois, sitting by designation
[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1706 UNITED STATES, Appellee, v. DONALD PAUL DESIR, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge] Before Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge. Scott F. Johnson and Stein, Volinsky & Callaghan, P.A. on brief for appellant. Margaret E. Curran, United States Attorney, and Edwin J. Gale, Assistant United States Attorney, on brief for appellee. May 24, 1999 Per Curiam. Upon careful review of the briefs and record, we conclude that this appeal clearly presents no substantial issue and that oral argument would not be of assistance to us. We note that many of defendant's appellate contentions are raised for the first time in this court. 1. Entrapment. The confidential informant's testimony provided sufficient evidence that defendant was not entrapped. The jury apparently found the confidential informant credible notwithstanding his legal and financial motivations. This court cannot second-guess that credibility assessment, and the jury was not required to accept defendant's interpretation of the events. The jury instruction regarding entrapment was not plainly erroneous: the government's burden of proof and the element of predisposition were adequately described. 2. Outrageous conduct. The reverse sting was not per se outrageous, even if it involved a paid informant and some level of "furtiveness, duplicity, and manipulation." See United States v. Gifford, 17 F.3d 462, 470-71 (1st Cir. 1994). On the evidence presented, and had the issue been raised, it would have been reasonable to conclude that the investigatory methods employed by the government were not improper, let alone outrageous. 3. Jury conduct. The district court's response to the jury's note about a "moral issue" was well within its discretion. The import of the note was clear enough, and the district court had no cause to investigate the matter or deal with it in any other way. The note did not signal a deadlock, and there were no evident grounds for a mistrial. We cannot say that the circumstances in which the jury reached unanimity warrant reversal in this case, nor can we say that the district court was required sua sponte to inquire further into the matter. 4. Indictment. Even were defendant's belated challenge to the indictment not deemed waived, see Fed. R. Crim. P. 12(b)(2) & (f), in any event, the starting date of the conspiracy was not an essential element of the instant offense. See United States v. Nunez, 668 F.2d 10, 11-12 (1st Cir. 1981). 5. Jury instructions. Defendant's new objections to the instructions on flight, possession, and reasonable doubt do not pass the plain error test. The flight instruction properly allowed the jury to decide whether or not an inference of guilt was reasonable under the circumstances, and no more was required. See United States v. Rose, 104 F.3d 1408, 1417 (1st Cir. 1997). Actual possession was not an issue in this case, and the district court adequately defined constructive possession. The reasonable doubt instruction did not require any more specific definition, and the district court's comment about the possible sources of reasonable doubt did not dilute the government's burden of proof. Taking the instructions as a whole, we perceive no likelihood that the jury misunderstood its obligations, notwithstanding that the word "should" may have appeared in the burden of proof instructions. 6. Drug quantity. Defendant's sentencing factor manipulation claim fails because there was no showing of "extraordinary misconduct." See United State v. Montoya, 62 F.3d 1, 4 (1st Cir. 1995). Even assuming that defendant's argument about U.S.S.G. 2D1.1 note 12 were properly presented to the district court and preserved for review, we cannot say that the district court clearly erred in attributing 5 kilograms of cocaine to defendant, there being adequate evidence of defendant's intention and capability to proceed with the deal he negotiated. 7. Prior conviction. On the present record, and in the context of defendant's challenge to the information filed under 21 U.S.C. 851, the district court correctly followed federal precedent and counted defendant's prior conviction. The plea was not infirm, even assuming that defendant was not informed about deportation consequences, because deportation is a collateral, as opposed to direct, consequence of an alien-defendant's conviction and therefore legally irrelevant to the plea. See United States v. Quin, 836 F.2d 654, 655 (1st Cir. 1988), (citing, e.g., United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988)). However, in light of the pending proceedings in the state courts, we recognize that there exists the possibility that the prior conviction could be vacated, in which event defendant may at that time bring that fact to the district court's attention, and seek appropriate sentencing relief in a proceeding under 28 U.S.C. 2255. We intend no prediction of the outcome of any such future proceeding. 8. Motions. Counsel's motion to withdraw is denied. Defendant's pro se motion to dispense with oral argument is moot. Defendant is reminded that he is still represented by counsel, and, although he was granted leave to file a pro se supplemental brief, he has not been granted leave to file any other pro se filings in this court. Defendant's pro se motion for summary reversal is denied as frivolous, to the extent that it is based on the government's non-specific response to a portion of defendant's pro se brief. To the extent that the motion is based on defendant's sister's affidavit raising a new allegation of jury misconduct, the motion is denied without prejudice. We will not consider the allegation raised for the first time on appeal, which must be submitted to the district court in the first instance. We intend no comment on its merits, if any. Affirmed. See 1st Cir. Loc. R. 27.1.
46 F.3d 1129 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES Of America, Plaintiff-Appellee,v.Ramona Lynn WYATT, a/k/a Mona, Defendant-Appellant.UNITED STATES Of America, Plaintiff-Appellee,v.Johnnie S. MORGAN, a/k/a Shorty, Defendant-Appellant. Nos. 94-5151, 94-5158. United States Court of Appeals, Fourth Circuit. Submitted: December 20, 1994.Decided: January 13, 1995. H. Gerard Kelley, Sr., SHUMAN, ANNAND & POE, Charleston, W VA., Michael R. Cline, Charleston, WV, for Appellants. Rebecca A. Betts, United States Attorney, Michael O. Callaghan, Assistant United States Attorney, Charleston, W VA, for Appellee. Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges. OPINION PER CURIAM: 1 Ramona Lynn Wyatt and Johnnie S. Morgan each pled guilty to possession of more than five grams of crack cocaine, 21 U.S.C.A. Sec. 844(a) (West Supp.1994), and each received a sentence of eightyseven months. Wyatt and Morgan argue that the district court erred in denying them leave to withdraw their guilty pleas on the basis of outrageous government conduct, and in denying them a downward departure based on sentencing manipulation. They further contend that guideline section 2D2.1(b)* is unconstitutional because it creates an irrebuttable presumption that possession of more than five grams of crack indicates an intent to distribute. We affirm in part and dismiss in part. 2 Between April and June 1993, Wyatt and Morgan spent approximately $43,000 of Wyatt's money on small purchases of crack which they smoked together. Wyatt had a live-in babysitter to care for her three small children. The babysitter, Brenda Sajid, was arrested on drug charges in April 1993 and began cooperating with authorities. With Sajid acting as a go-between, Wyatt and Morgan arranged to buy four ounces of crack for $3600 from state narcotics agents. Negotiations went on for several days in late June and early July. Before they were completed, Morgan attempted to buy a half-ounce of crack from one of the agents for $700 on July 2. The agent, contacted at midnight by Morgan, refused to make the sale. Immediately following their purchase of four ounces on July 8, 1993, Wyatt and Morgan were arrested. 3 Following preparation of their presentence reports, both Wyatt and Morgan moved to withdraw their guilty pleas because of outrageous government conduct or, alternatively, for a downward departure on that ground. They alleged that the state agents used their known addiction to inflate the offense level by offering to sell them a larger amount of crack than they had ever before purchased. 4 Morgan also objected to the computation of his offense level. He argued that only the half-ounce he attempted to buy should be used to calculate his offense level. Morgan argued that he and Wyatt were ensnared into buying a larger amount by Sajid and the agents. 5 The district court conducted two hearings to resolve the issues. It heard testimony from Wyatt, Morgan, Sajid, and Sajid's attorney, and reviewed the taped conversations between the agents and Wyatt and Morgan leading up to the four-ounce sale on July 8. The district court then determined that the government's conduct was not outrageous because Wyatt and Morgan, rather than the government, had determined the quantities they wished to purchase. It noted that Wyatt and Morgan admitted previously spending up to $5000 on crack in a single day by making multiple small purchases. The court therefore denied the motions to withdraw the plea agreements and refused to depart downward. 6 Government conduct may violate due process and prevent prosecution of a defendant who is predisposed to commit the crime, if the conduct is truly egregious. Hampton v. United States, 425 U.S. 484, 492-93 (1976) (Powell, J., concurring); United States v. Jones, 18 F.3d 1145, 1154 (4th Cir.1994). However, the only such claim with a chance of success is one which alleges a violation of a specific constitutional guarantee. Jones, 18 F.3d at 1154. 7 Wyatt and Morgan do not make the particular showing required. Relying on United States v. Harris, 997 F.2d 812 (10th Cir.1993), they contend that the state agents passed up opportunities to arrest them with small amounts of crack and exploited their addiction to induce them to make a large purchase. In Harris, the Tenth Circuit identified three ways in which the conduct of government agents might be sufficiently outrageous to violate due process: (1) excessive government involvement in the creation of the crime, (2) significant government coercion to induce the crime, and (3) multiple drug transactions with a known addict for the primary purpose of stacking the charges. Harris, 997 F.2d at 816-18. Wyatt and Morgan argue that, although the government agents engaged in only one transaction with them, the agents' conduct was designed to produce a stiff charge and a long sentence, and thus violated due process. 8 As the district court found, it is clear from their recorded conversations with the agents as well as their past conduct that Wyatt and Morgan were anxious, not reluctant, to buy multi-ounce quantities of crack. Previously, they had purchased a significant amount of crack in small but frequent purchases and paid for (but not received) four ounces on one occasion. They had made small purchases only because they lacked a source who could sell them larger amounts. Wyatt stated at her guilty plea hearing that she jumped at the chance to buy a large quantity because she was tired of having to go out so often to buy more crack. 9 The government was under no obligation to limit Wyatt's and Morgan's exposure by offering them only a small amount of crack. In the circumstances, we find that the government's conduct was not outrageous. Therefore, the district court did not err in denying Wyatt and Morgan leave to withdraw their guilty pleas on this ground. The district court's decision not to depart on the basis of sentencing manipulation is not reviewable on appeal. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S. 819 (1990). 10 Finally, Wyatt and Morgan maintain that guideline section 2D2.1(b) creates an irrebuttable presumption that a defendant in possession of more than five grams of crack intends to distribute it. Because they did not raise this issue in the district court, it is reviewed for plain error. United States v. Maxton, 940 F.2d 103, 105 (4th Cir.), cert. denied, 60 U.S.L.W. 3343 (U.S.1991). We do not find that the cross-reference to section 2D1.1 creates a presumption of distribution. Instead, section 2D2.1(b) implements the Congressional decision, as evidenced in 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1994) and Sec. 844(a), to impose the same sentence for possession of more than five grams of crack as for distribution of more than five grams of crack. The district court plainly did not err in failing to find, sua sponte, that section 2D2.1 is unconstitutional. 11 We therefore affirm the district court's denial of the Appellants' motions to withdraw their guilty pleas, and we affirm the sentences imposed. The portion of the appeal which contests the district court's decision not to depart is dismissed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED IN PART, DISMISSED IN PART * United States Sentencing Commission, Guidelines Manual (Nov.1993)
940 P.2d 1000 (1996) COLORADO COMPENSATION INSURANCE AUTHORITY, Plaintiff-Appellee, v. RAYCOMM TRANSWORLD INDUSTRIES, INC. d/b/a Royalpar/Ewing, a Delaware Corporation, Defendant-Appellant. No. 95CA1545. Colorado Court of Appeals, Div. III. September 26, 1996. Rehearing Denied November 14, 1997. Certiorari Denied August 4, 1997. Pearson, Milligan & Horowitz, P.C., Robert M. Horowitz, Susan D. Maez, Denver, for Plaintiff-Appellee. Burg & Eldredge, P.C., David P. Hersh, Matthew D. Bailis, Denver, for Defendant-Appellant. *1001 Opinion by Judge KAPELKE. Defendant, Raycomm Transworld Industries, Inc., appeals from the default judgment entered in favor of plaintiff, Colorado Compensation Insurance Authority, and from the trial court's denial of a motion to set aside the default judgment. We reverse and remand with directions. On May 3, 1995, plaintiff filed this action against defendant and another party, seeking to recover alleged unpaid workers' compensation insurance premiums. Defendant's registered agent was served with a summons and a copy of the complaint on May 25, 1995. Pursuant to C.R.C.P. 12(a), defendant would have been required to respond to the complaint by June 26, 1995. However, plaintiff's counsel agreed to an extension of time until July 10, 1995. Plaintiff filed a motion for default judgment on July 12, 1995. At that time, defendant had not filed an answer or any other document with the trial court. On July 16, 1995, before entry of a default, defendant filed its answer. Defendant also filed a response to plaintiff's motion for default judgment on July 21, 1995. On July 24, 1995, the trial court entered an order granting default judgment against defendant. Thereafter, defendant filed a motion to set aside the default judgment, which the trial court denied. Following a hearing to determine the amount of plaintiff's damages, the trial court entered judgment in favor of plaintiff in the amount of $276,430.84 plus postjudgment interest and costs. Defendant first contends that the trial court erred in entering the default judgment because it filed its answer before the entry of default and before the trial court entered the default judgment. Under the circumstances here, we agree. C.R.C.P. 55(a) provides in relevant part, as follows: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default. While the court itself may also enter the default, it may not properly enter a default judgment if an answer has been filed before entry of default by either the clerk or the court. See 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure 2682 (1983); 6 Moore's Federal Practice § 55:03[1] (discussing Fed. R.Civ.P. 55, the federal counterpart of C.R.C.P. 55). See also Tarbell v. Jacobs, 856 F.Supp. 101 (N.D.N.Y.1994); Systems Industries, Inc. v. Han, 105 F.R.D. 72, 74 (E.D.Pa. 1985). Thus, although defendant's answer here was filed late, because it was filed before a default had been entered and before the trial court had ruled on the motion for default judgment, the court should have denied the motion and erred in not doing so. In view of our conclusion that default judgment should not have been entered, we need not address defendant's additional contention that the court abused its discretion in denying the motion to set aside the default judgment. The judgment is reversed, and the cause is remanded for further proceedings on the merits. HUME and ROTHENBERG, JJ., concur.
535 F.2d 1253 Brownv.American Express International Banking Corp. No. 75-2140 United States Court of Appeals, Sixth Circuit 4/28/76 1 M.D.Tenn. AFFIRMED
132 F.3d 45 U.S.v.Pareja-Sosa* NO. 95-5092 United States Court of Appeals,Eleventh Circuit. Nov 25, 1997 Appeal From: S.D.Fla. ,No.9400031CRDTKH 1 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3
NUMBER 13-05-459-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ DOMINION AIR & HEAT, L.L.C., Appellant, v. SOUTHWESTERN BELL YELLOW PAGES, INC., Appellee. ___________________________________________________________________ On appeal from County Civil Court at Law No. 3 of Harris County, Texas. ___________________________________________________________________ MEMORANDUM OPINION Before Justices Rodriguez, Castillo, and Garza Memorandum Opinion Per Curiam Appellant, DOMINION AIR & HEAT, L.L.C., perfected an appeal from a judgment entered by County Civil Court at Law No. 3 of Harris County, Texas, in cause number 813742. After the record was filed, appellant filed a motion to dismiss the appeal. In the motion, appellant states that this case has been resolved and appellant no longer wishes to prosecute this appeal. Appellant requests that this Court dismiss the appeal. The Court, having considered the documents on file and appellant=s motion to dismiss the appeal, is of the opinion that the motion should be granted. Appellant=s motion to dismiss is granted, and the appeal is hereby DISMISSED. PER CURIAM Memorandum Opinion delivered and filed this the 10th day of November, 2005.
United States Court of Appeals For the First Circuit No. 98-2231 MYRTLE THOMAS, Plaintiff, Appellant, v. EASTMAN KODAK COMPANY, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. W. Arthur Garrity, Jr., U.S. District Judge] Before Lynch, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge. Marisa A. Campagna, with whom the Law Offices of Marisa A. Campagna were on brief, for appellant. Michael A. Fitzhugh, with whom Jon M. Nelson and Fitzhugh & Associates were on brief, for appellee. July 15, 1999 LYNCH, Circuit Judge. In 1993, Myrtle Thomas, the only black Customer Service Representative in Eastman Kodak's Wellesley, Massachusetts office, was laid off. Thomas responded with a race discrimination suit against Kodak under Title VII, 42 U.S.C. 2000e to e-17, arguing that Kodak's layoff decision was discriminatory because it resulted from a ranking process that relied on racially biased performance appraisals prepared in 1990, 1991, and 1992. Kodak made two arguments in its motion for summary judgment: first, that Thomas's claim was time-barred because the performance appraisals were conducted outside of Title VII's statutory limitation period, and second, that Thomas failed in any event to present enough evidence of racial animus to support a disparate treatment claim. The district court disagreed with the first point but agreed with Kodak's second argument and granted summary judgment. Both issues are before us on appeal. We decide both in favor of Thomas. We find Thomas's claim to be timely because the discriminatory appraisals that she is challenging first caused her concrete harm when they led to her layoff in 1993. Because we also find that she has presented enough evidence to support her claim that the performance appraisals were racially biased, we reverse the district court's grant of summary judgment and remand for further proceedings. After thirty-five years of litigation under Title VII, cases can still present new wrinkles. This is one such case. Because it raises a number of important issues -- some new and some familiar but difficult -- we preview the key holdings. First, when an employer utilizes scores from past performance appraisals in an objective formula to determine who will be laid off, and the laid-off employee suffered no earlier concrete harms from those appraisals, the accrual date for the limitations period is the date of the notice of layoff, not the date of the performance appraisals. Second, once there is sufficient evidence to create a material issue of fact that the employer's articulated reason for an adverse employment action is a pretext, there is no requirement that a plaintiff always produce direct evidence to demonstrate that the real reason was discriminatory. Third, Title VII's prohibition against "disparate treatment because of race" extends both to employer acts based on conscious racial animus and to employer decisions that are based on stereotyped thinking or other forms of less conscious bias. Fourth, under the McDonnell Douglas/Burdine framework, a court may not enter summary judgment for an employer based upon a non-discriminatory reason not articulated by the employer but identified sua sponte by the district court. I In reviewing a grant of summary judgment, we consider the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party's favor. See Aponte Matos v. Toledo Davila, 135 F.3d 182, 186 (1st Cir. 1998). Given the subtlety of the questions before us, we outline Thomas's experiences at Kodak in some detail. Thomas was a long-term Kodak employee. She first began working for the company in 1974. In 1980, after working for six years in clerical and administrative positions in Kodak's Rochester, New York facility, she was promoted to Customer Support Representative ("CSR") within the Office Imaging Division and transferred to Kodak's office in Wellesley, Massachusetts. Along with five other CSRs working out of the Wellesley office, Thomas supported customers in an assigned territory who owned Kodak copiers and other Kodak equipment. She helped salespeople perform installations, trained customers in the use and maintenance of Kodak equipment, facilitated communication between customers and sales and service personnel, and provided other forms of marketing support. Thomas generally performed her job well. Kodak managers who supervised Thomas during her first ten years as a CSR in the Wellesley office reported variously that they were never dissatisfied with her performance, that they were "delighted" with Thomas, that her work was "excellent" and "far superior" to that of some of the other CSRs, that she was "very much on top of things," and that she was "the perfect support person." Co-workers and customers expressed similar sentiments. A sales representative who worked with Thomas sent a memorandum to Thomas's supervisor praising her "continuous professionalism," "very high level of commitment," and "total dedication." The sales representative later noted that he was particularly impressed with the way a certain customer "really went out of his way" to emphasize his satisfaction with Thomas's support. Another customer who contacted Kodak after Thomas's layoff described Thomas as "an irreplaceable part of the Kodak team" and explained that Thomas was the primary reason for his selection of Kodak copiers over copiers from other companies. The customer concluded: "In my many contacts with company representatives, I have not met anyone of the class and caliber of Myrtle Thomas." Because of her high level of performance, Thomas received awards and bonuses from Kodak. In 1989, the company also changed Thomas's grade from K4 to K6, which resulted in a salary increase. According to Kodak's job description, the K6 grade was limited to CSRs who were "making an outstanding contribution to the support activities," defined as "servicing the largest and/or most sensitive accounts, developing and giving individualized presentations and/or demonstrations, and training new CSRs." Thomas received at least eight other salary increases during her years as a CSR. At the time of the 1993 layoff, Thomas was the fourth most senior CSR in the Wellesley office and earned the third highest salary. The Kodak compensation plan stated that "[t]he company's goal for [its] pay program is to reward each individual's job performance appropriately" and to ensure that "[p]eople with higher performance will, over time, be paid more than average performers." The company made use of annual performance appraisals in order to reach this goal. According to the compensation plan, performance appraisals were also used for a number of other purposes, including: A. Evaluating and documenting the performance of each individual in comparison with performance expectations for the job. B. Providing individuals with constructive feedback. C. Identifying the guidance and training that can help individuals be as successful as their ability permits. [and] D. Determining who should be promoted, transferred, demoted, terminated, laid off, and re-employed. To conduct an appraisal, the supervisor who directed an employee's day-to-day activities filled out an appraisal form. The form contained a section pertaining to "basic performance measures," which included categories for quality of results, quantity of results, job skills, and teamwork. Another section pertained to "additional performance measures," including dependability, versatility, communications, and leadership. The form required the supervisor to give the employee a rating from 1 to 7 for each applicable category, as well as an overall rating. A separate section of the appraisal form contained space for the supervisor's comments on the evaluated categories, a description of any developmental opportunities, a description of matters discussed during the post-appraisal interview with the employee, and both supervisor and employee signatures. Each appraisal was also reviewed and signed by the appraiser's supervisor. The appraiser and the appraiser's supervisor were together responsible for the appraisal's accuracy, consistency, and conformance to company policy, including a policy favoring fair and objective evaluations, conducted "without regard to non-job-related criteria such as[] race." Kodak intended the appraisal scores to be on a curve, company-wide. The compensation plan suggested that "performance appraisal ratings for large groups of people (approximately 100 or more) [should] average around the middle of the rating scale," but acknowledged that factors such as the amount of turnover and the percentage of long-term employees could influence the distribution of ratings in any given group, particularly groups with a small number of employees. The compensation plan suggested that appraisers attempt to validate their distribution of appraisal ratings by rank-ordering employees in the same grade and job category. After the rank ordering was complete, supervisors would finalize the preliminary ratings to agree with the rank-order results. However, these rank orderings were not discussed with employees. Supervisors were told that "[a]ppraisals verified through this process [should be] communicated by referencing performance relative to job expectations with no reference to the rank-order process." Thomas's appraisals for 1988 and 1989 show that she was performing at a high level. In 1988, when she was responsible for more than 400 machines, Thomas received seven 5 ratings and one 6 rating, for an overall rating of 5, which was a rating "appropriate for individuals who not only achieve results and meet all expectations on a regular basis, but who go beyond these requirements from time to time." Her supervisor's comments were uniformly positive. In 1989, when she was responsible for more than 500 machines, Thomas received even higher ratings -- five 6s and three 5s, for an overall rating of 6, which meant that her "[p]erformance consistently exceed[ed] the requirements of the position and [was] characterized by unusual initiative, resourcefulness, and creativity." Once again, the supervisor's comments were uniformly positive. In 1989, Kodak created the position of Customer Support Manager throughout its Office Imaging organization. Thomas asked to be considered for the Wellesley position, but was told that she was not qualified. Instead, the position went to Claire Flannery, a former CSR who had been working as a division secretary. As Customer Support Manager, Flannery was responsible for supervising the six Wellesley CSRs. She remained in this position until 1993, when both she and Thomas were laid off as part of a company-wide reduction in force. The appointment of Flannery as Customer Support Manager marked a significant downturn in Thomas's fortunes at Kodak. Although Thomas states that she and Flannery "were on a professional basis," and Flannery denies having any problems with Thomas's job performance, it appears that their working relationship was strained. Thomas alleges that Flannery treated her differently from the other five CSRs, all of whom were white (as were, in fact, all of the other CSRs during Thomas's thirteen years in the Wellesley office). She describes a number of occasions on which she claims Flannery unnecessarily damaged her professional standing with customers. For example, on the only occasion on which Flannery accompanied Thomas to a customer training session in order to observe Thomas's work, Flannery instead took over the session and conducted the entire training herself. On another occasion, Flannery told Thomas the wrong time for a training session Flannery had scheduled on site, and then refused to write to the customer, who was upset, to explain why Thomas had been several hours late. (After Thomas proved to Flannery what had occurred by playing back Flannery's voice mail message to her, Flannery did agree to call -- but not to write -- the customer.) On a third occasion, Flannery became quite angry and attempted physically to block Thomas from leaving a CSR meeting which had been scheduled at the same time as an important training session for one of Thomas's customers. Thomas also provides evidence from which the inference can be drawn that Flannery did not evaluate her skills fairly or give her appropriate opportunities for growth and success. For example, Flannery did not travel with Thomas as she did with the other CSRs in order to observe Thomas's interactions with customers. Flannery did not give Thomas the same type of developmental opportunities available to other CSRs. She criticized Thomas for lack of computer skills, but then failed to train Thomas when computer equipment became available. After Thomas was asked to prepare a presentation for a Kodak meeting, Flannery told her that there would not be time for her presentation, although time was found for a presentation by a white employee on a less pressing topic. Thomas was denied the opportunity to apply for sales jobs, despite her good track record in sales support activities. Flannery expressly discouraged her from applying for a management position in another division, telling her she was not qualified because she did not yet have a master's degree (Thomas was studying for one at the time), even though none of the other managers in that position had a master's degree or even a bachelor's degree. Finally, Flannery went to great lengths to prevent Thomas from meeting with Bill Cassidy, the Regional Vice President for Office Imaging, to discuss advancement opportunities, and became angry when Thomas nevertheless managed to schedule an appointment. Thomas's most significant and concrete allegation is that Flannery gave her inaccurately low scores on her annual performance appraisals. For example, after receiving only 5s and 6s in 1988 and 1989, Thomas received a 2, four 3s, and a 4 from Flannery in 1990, for an overall score of 3. This was a below- average rating, appropriate for employees who had "a need for further improvement to achieve a middle rating [of 4]" or for employees "whose overall performance has slipped from a higher level." Thomas's performance appraisal scores in 1991 and 1992, while higher than her 1990 scores, were also inappropriately low, in Thomas's estimation -- especially when compared to the higher scores that Flannery gave to other CSRs. Thomas presents specific comparisons, discussed further below. Thomas was distressed by the 1990 performance appraisal and refused to sign it. She also refused to sign the 1992 appraisal, and signed her 1991 appraisal only "'out of a joke,' because it was a joke." It is clear that Thomas disagreed with Flannery's evaluations; more than that -- she found them "insulting" and "shameful." To the extent that it was possible for her to compare salary and raises with other CSRs, however, she would not have noted any obvious effects of the negative appraisals, since neither her salary nor the raises she was given during Flannery's tenure as Customer Support Manager differed significantly from those of other employees. She did complain about the appraisals, both to Flannery herself and to others within Kodak, including Bill Cassidy, the Regional Vice President for Office Imaging, and Patti Weissinger, a Human Resources Representative. However, fearing retaliation from her new boss, she did not file a formal charge against Flannery with the Human Resources Department, and Kodak did not take any action in response to her informal complaints. In January 1993, Kodak decided to reduce the number of employees in its Office Imaging Division. It selected employees for layoff using a "Performance Appraisal Ranking Process ("PAR process"), which produced a numerical score for each employee by adding together the employee's overall performance appraisal score for each of the three preceding years, after weighting the most recent score by a factor of 25 and the second most recent score by a factor of 5. Thomas's PAR ranking, which was derived from the three appraisals conducted by Flannery, was the second lowest of the Wellesley CSRs. Since Kodak had decided to cut two Wellesley CSR positions, as well as the Customer Support Manager position, Flannery, Thomas, and the lowest ranked CSR (Eileen Lavallee) were laid off in March 1993. II In July 1993, four months after her layoff, Thomas filed a charge of race discrimination with the Equal Employment Opportunity Commission. The EEOC issued a "right to sue" letter in February 1996, and Thomas brought suit in May 1996. Although her complaint asserts a variety of race discrimination claims, Thomas has focused primarily on Kodak's 1993 decision to terminate her, arguing that this decision was discriminatory because it was based on discriminatory performance appraisals conducted by Flannery from 1990 through 1992. It is the layoff which is the subject of this appeal. Kodak moved for summary judgment, contending that Thomas's claim was time-barred, and in the alternative, that she had failed to present enough evidence of racial animus to reach a jury under the First Circuit's standard for showing disparate treatment once pretext has been shown. See Udo v. Tomes, 54 F.3d 9, 12-13 (1st Cir. 1995) (describing standard). The district court found Thomas's claim timely, but granted summary judgment to Kodak on the merits argument. See Thomas v. Kodak, 18 F. Supp. 2d 129, 133-38 (D. Mass. 1998). On appeal, Thomas argues that the district court applied the standard incorrectly. Kodak defends the district court's application of the standard, while also continuing to argue that Thomas's claim is time-barred. III We review the district court's grant of summary judgment de novo, see Lennon v. Rubin, 166 F.3d 6, 8 (1999), and will find summary judgment appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," Fed. R. Civ. P. 56(c). A We first address Kodak's argument that the district court erred in not dismissing the action as untimely. Title VII requires aggrieved individuals to file a charge with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. 2000e-5(e)(1). In a "deferral jurisdiction," such as Massachusetts, this period is extended to three hundred days. See 42 U.S.C. 2000e-5(e)(1); Mohasco Corp. v. Silver, 447 U.S. 807, 814 n.16 (1980); Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181-82 (1st Cir. 1989). This relatively short limitations period serves important interests. "The limitations period[], while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect[s] employers from the burden of defending claims arising from employment decisions that are long past." Delaware State College v. Ricks, 449 U.S. 250, 256-57 (1980). In the Title VII context, as in others, "the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones." Id. at 259-60 (internal quotation marks omitted) (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64 (1975)). Congress has made that value judgment. However, Title VII's statute of limitations is not self- executing. The three hundred day (or one hundred and eighty day) rule cannot be mechanically applied, because it is not possible to pinpoint when the limitations period begins -- i.e., when the plaintiff's claim "accrues" -- without first determining the date, or the temporal boundary, of the "alleged unlawful employment practice" referred to in 2000e-5(e)(1). The crux of Thomas's claim is that the 1990-1992 performance appraisals were tainted by Flannery's alleged racial bias. Thomas does not argue that Kodak's decision to utilize the PAR process to determine who would be laid off was racially biased. See Thomas, 18 F. Supp. 2d at 135 ("[P]laintiff does not contend that Kodak's . . . PAR layoff process[] [was itself] discriminatory."). As we understand her argument, she does not allege that Flannery and other Kodak employees participated in a conspiracy to oust her from her job because of her race, using the performance appraisals and the PAR process as a thin cover for this express discriminatory purpose. Rather, she argues that the PAR process was illegitimate under Title VII in a derivative way, because its calculations were based on discriminatory appraisal scores. If racially biased scores were plugged in to the PAR formula, she argues, then the ranking that came out must also be biased. According to Kodak, this argument can only mean that the performance appraisals themselves constitute the "unlawful employment practice" at issue under 2000e-5(e)(1), and thus that any claim regarding the allegedly biased performance appraisals must have accrued at the time the appraisals were conducted. Since even the most recent appraisal (presented to Thomas in May 1992) was conducted more than three hundred days before Thomas filed her complaint with the EEOC in July 1993, Kodak asserts that Thomas is precluded from questioning the racial neutrality of any of the three performance appraisals. And without the ability to challenge the appraisals upon which the PAR process was based, Kodak notes, Thomas's discriminatory termination claim collapses. According to Thomas, the fact that the performance appraisals were conducted more than three hundred days before she filed her EEOC charge is irrelevant, because the adverse employment decision that she is challenging -- the "unlawful employment practice" under 2000e-5(e)(1) -- is Kodak's decision to lay her off, and this decision indisputably fell within the statutory period. Kodak's general policy stance makes sense: given that the central purpose of the statute of limitations is to protect employers from stale claims, it cannot be true that plaintiffs have an unfettered ability to reach back and litigate biased evaluations. Yet Thomas's position is also reasonable, since it seems unlikely that Title VII permits employers to rely on discriminatory evaluations as long as those evaluations were conducted more than three hundred days before action is taken on them. Counsel did not call the court's attention to any First Circuit caselaw on this point. The district court, led to believe that the First Circuit had not addressed this question, "look[ed] for guidance elsewhere." Thomas, 18 F. Supp. 2d at 133. The court focused on the decision of the Third Circuit in Colgan v. Fisher Scientific Co., 935 F.2d 1407 (3d Cir.), cert. denied, 502 U.S. 941 (1991). The facts in Colgan do closely resemble the facts here. Like Thomas, the Colgan plaintiff was fired after receiving a negative performance review. See id. at 1410-11. He filed a charge of age discrimination with the EEOC within three hundred days of his termination, but more than three hundred days after the negative performance review. See id. at 1411. The Third Circuit determined that Colgan's claim was not time-barred because it accrued at Colgan's termination, not when he received the negative review. See id. at 1415-21. The court concluded that "an alleged unlawful employment practice, here the performance evaluation, must have inflicted harm which was or should have been noticed, or it will not have triggered the limitations period." Id. at 1418. Colgan's review stated that he failed to meet job requirements and expressly warned that action would be taken unless his performance improved. See id. at 1410. Nonetheless, the court found that the review did not produce the requisite notice of harm to trigger the running of the statute of limitations, because "[t]he performance evaluation had no immediate consequence on Colgan's employment, such as a loss of seniority, nor did it alert Colgan to the possibility that consequences would flow from it without an opportunity for him to improve his performance." Id. at 1419-20. The Third Circuit based its Colgan analysis on a trilogy of Supreme Court cases, which we summarize briefly here. In United Air Lines v. Evans, 431 U.S. 553 (1977), the Supreme Court held that a flight attendant who was wrongfully forced to resign and then later rehired could not challenge the airline's refusal to grant her seniority as if there had been no break in her employment, since the relevant wrongful act -- Evans's being forced to resign -- occurred outside of the limitations period. See id. at 555. In Ricks, the Court held that the college's denial of tenure, not a later discharge pursuant to that denial, was the event that triggered Title VII's statute of limitations. See Ricks, 449 U.S. at 156-58. Finally, in Lorance v. AT&T Technologies, 490 U.S. 900 (1989), the Court held that the Title VII limitations period begins to run when an employer adopts a seniority system, not when an employee is demoted pursuant to that system. See id. at 912-13. Read together, this trilogy defines a notice rule: an employer action only triggers the running of the statute of limitations if that action has concrete, negative consequences for an employee, and the employee is aware or should have been aware of those consequences. See Colgan, 935 F.2d at 1415-21; see also 2 B. Lindemann & P. Grossman, Employment Discrimination Law 1349 (3d ed. 1996) (observing that Supreme Court cases "seem to establish a relatively simple 'notice' rule as to when discrimination 'occurs'"). We think many aspects of Colgan's reasoning are correct. However, we find more direct guidance in a First Circuit case decided several years before Colgan. In Johnson v. General Electric, 840 F.2d 132 (1st Cir. 1988), a black employee claimed that he had been denied a promotion based on a special review process that was intentionally designed to prevent him from qualifying for promotion. See id. at 134. The employer contended that the plaintiff's claim accrued when the review process was first put into place, while the plaintiff insisted that the clock did not start running on his claim until he was informed that he had failed the review process and would not be promoted. See id. The district court, relying on Ricks, held that the establishment of the review process was the "unlawful employment practice" of which the plaintiff complained, and therefore started the running of the statute from that point. See id. Although this court affirmed the dismissal on other grounds, it disagreed with the district court's analysis, noting that the "question [is] . . . whether a claim accrues when an employee is made subject to an . . . evaluation . . . , or when that . . . evaluation is applied to deny the plaintiff particular benefits or positions." Id. This court chose the latter rule, holding that the notice standard is met and the statute of limitations is triggered only if "the implications [of the evaluation] have crystallized" and "some tangible effects of the discrimination were apparent to the plaintiff," i.e., if "the plaintiff is aware that he will in fact be injured by the challenged practice." Id. at 136-37. The decision was motivated, in part, by concerns about ripeness. The court noted that "it is far from clear whether claims under Title VII and analogous statutes would be ripe for adjudication until discriminatory systems [or evaluations] were actually applied to plaintiffs in particular employment decisions," and observed that "[i]t is unwise to encourage lawsuits before the injuries resulting from the violations are delineated, or before it is even certain that injuries will occur at all." Id. at 136. Johnson's notice standard serves multiple functions. By starting the limitations clock as soon as harm is noticed, or should be noticed, the standard protects employers from stale claims while also lessening the risk that employees will bring unripe claims. The notice standard protects employees as well, because it ensures that claims will not be foreclosed before employees have had a fair chance to bring them. The notice standard in Johnson also resolves the apparent contradiction between the two reasonable policy stances pressed by the litigants here. Thomas is correct that Title VII extends to a neutral employer decision-making process that relies on discriminatory evaluations. But Kodak is also right that employees do not have an unfettered right to reach back to challenge previous evaluations. The key is whether those evaluations had tangible, concrete effects at the time they were conducted. If the evaluation did cause tangible, concrete harm, the notice standard requires the injured employee to promptly bring suit to recover for those harms. Failure to do so will render any later claim regarding those particular harms time-barred. If the evaluations did not have tangible, concrete effects at the time, no claim regarding the discriminatory evaluations accrues. Under the notice standard, no claim will accrue until and unless the evaluations result in a tangible injury. This means that an employer could be exposed to Title VII liability for harms stemming from discriminatory evaluations some years after the evaluations were conducted, if the evaluations first cause tangible harm to the employee at that later point. Kodak argues that this puts employers in an untenable position. We disagree, for three reasons. First, as a matter of practicality, employers are unlikely to rely on "stale" evaluations. The older the evaluation, the less likely an employer would be to use that evaluation as the basis of an employment decision. Employers' preference for more recent evaluations is demonstrated dramatically by Kodak's own PAR formula, which used only the latest three evaluations and then weighted the most recent by a factor of 25. Second, the passage of time would affect employees as well as employers. An employee who sought to challenge an old evaluation would bear the burden of proving that the evaluation was discriminatory -- and the older the evaluation, the more difficult that task would be. Third, the standard gives concomitant advantages to employers. It avoids forcing employees to "run to the EEOC" each time they disagree with a performance evaluation. As the district court aptly observed: If we apply the time bar to plaintiff's [performance appraisals], then we require a given plaintiff to file EEOC charges successively for each performance evaluation, informal feedback from a supervisor, or office rumor, so long as these events -- even if nonharmful in themselves -- might be informed by racial animus and could someday contribute to a later, harmful result. This requirement would surely disrupt the American workplace . . . . Thomas, 18 F. Supp. 2d at 134-35. Instead, the Johnson notice standard allows employees to give employers the benefit of the doubt, where employees suspect that an evaluation which has yet to cause tangible harm might be tainted by bias, and encourages them to try to solve the problem by proving their actual worth to the employer. And while the standard places an ongoing obligation on employers to monitor their evaluation processes to ensure that they are free from illegal bias, employers also benefit from the opportunity to base personnel decisions on accurate, bias-free evaluations. In any event, this sort of obligation is foreseen by Title VII, since the statute encourages the elimination of both obvious and subtle forms of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). In arguing against the application of the Colgan rule (which, as explained above, resembles the First Circuit standard announced in Johnson), Kodak has presented a two-stranded argument. The first strand is based on notions of fair notice to the employer. The second asserts that Thomas's timeliness argument relies on an impermissible combination of the equitable tolling and continuing violation doctrines. Kodak would substitute for the accrual rule in Johnson a rule that focuses on notice to the employer. According to Kodak, the Colgan accrual rule makes "bad law because it allows an employee to introduce a time-barred incident where the employee has never previously contended, even in an informal process afforded by the employer, that the employee was subjected to unlawful discrimination." Appellee's Brief at 17. According to Kodak, this violates "the policy underlying Title VII [entitling] an employer . . . to some kind of prior notice." Id. This is not an irrational position, but Kodak cites no authority for it. The argument calls to mind the exhaustion rule imposed by courts in the ERISA context, see Employee Retirement Income Security Act, 29 U.S.C. 1001 et seq., which requires employees to take full advantage of employer-internal appeals processes before bringing suit to recover denied benefits, see McMahon v. Digital Equipment Corp., 162 F.3d 28, 40 (1st Cir. 1998) (noting court-imposed exhaustion rule for ERISA benefit claims). But the analogy is inappropriate. ERISA requires employers to offer employees a speedy appeals procedure for denied benefits. See 29 U.S.C. 1133 (stating that employers must "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim"); 29 C.F.R. 2560.503-1 (imposing time limits). Only after this process is complete does the ERISA statute of limitations begin to run. See, e.g., Godfrey v. BellSouth Telecomms., Inc., 89 F.3d 755, 759-60 (11th Cir. 1996); Martin v. Construction Laborer's Pension Trust, 947 F.2d 1381, 1385 (9th Cir. 1991). In Title VII, by contrast, Congress chose not to impose a particular employer-internal appeals procedure. Furthermore, the statute of limitations for a Title VII claim is not tolled while an employee exhausts any internal remedy the employer has made available. See Ricks, 449 U.S. at 261 ("[T]he pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods."); International Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236-37 (1976) (holding that the Title VII statute of limitations is not tolled by a collective-bargaining grievance procedure). Thus, a court-imposed exhaustion requirement would not work well in the Title VII context, because it would place employees in the position of having to exhaust an internal appeals process of uncertain length while also bringing suit within three hundred (or one hundred and eighty) days of the employer's allegedly wrongful act. Kodak's position bears an even closer resemblance to one aspect of the approach first explicated in Stoller v. Marsh, 682 F.2d 971 (D.C. Cir. 1982), and followed by a number of other courts, see, e.g., Hale v. Marsh, 808 F.2d 616, 620 (7th Cir. 1986); Brown v. City of New York, 869 F. Supp. 158, 169 (S.D.N.Y. 1994); Woolery v. Brady, 741 F. Supp. 667, 669-70 (E.D. Mich. 1990). The Stoller court held that a plaintiff could challenge an employer's wrongful reliance on discriminatory evaluations, even where the plaintiff has acknowledged that the employer's reliance itself was not intentionally discriminatory. See Stoller, 682 F.2d at 979 ("Otherwise an organization could separate illegal motive from decisionmaking responsibility, contrary to the principle that Title VII applies to the employer as an organization."). This is essentially the same result that Johnson permits. See Johnson, 840 F.2d at 135, 137 (citing this portion of Stoller). But the Stoller court added a second part to this rule: [A]fter preparation of employee evaluations, the employing organization may protect itself from Title VII liability by establishing procedures to allow employees to screen their personnel files and to remove damaging, discriminatory information. . . . If established procedures have given an employee a reasonable opportunity to inspect the supervisory evaluations in his or her file, to challenge allegedly inaccurate materials, and to have such materials corrected or removed, and if the organization gives its employees adequate notice that these rights may be exercised, then it may rely in good faith on such evaluations in making subsequent employment decisions without violating Title VII. Stoller, 682 F.2d at 979 (footnotes omitted). Kodak's "notice to the employer" argument could refer to this second half of the Stoller rule: Kodak apparently wants to be able to rely on Thomas's performance appraisals, because in its view Thomas had a reasonable opportunity to inspect the appraisals and to challenge inaccuracies through the "Open Door" appeals process. We can imagine advantages of the Stoller rule for both employers and employees. Employers, of course, would be able to limit their liability. Employees could conceivably benefit as well, if the rule increased the likelihood that employers would implement effective review procedures. But we decline to adopt this rule -- which was, in any event, implicitly rejected in Johnson -- because we think any possible advantages would be outweighed by two serious risks. One is the obvious risk that employers would have carte blanche to rely on discriminatory appraisals as long as they offered their employees an "Open Door." Avoiding the first risk would entail a second: courts would need to interpret strictly the concept of "[adequate] procedures to allow employees to screen their personnel files and remove damaging, discriminatory information." This would in turn entail a degree of judicial scrutiny and interference with day-to-day employer operations that employers would be unlikely to welcome and which courts interpreting Title VII have tried to avoid. See Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 337 (1st Cir. 1997) (noting courts' reluctance to "'sit as super personnel departments'" (quoting Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991)). The second strand of Kodak's timeliness argument is the claim that both Thomas and the district court have relied on an illegitimate "hybrid" of the equitable tolling and continuing violation doctrines. Thomas disavows any such reliance. We make several observations in response to Kodak's argument. First, the First Circuit doctrine of equitable tolling is simply inapplicable to these facts. Some courts permit tolling of the statute of limitations if the plaintiff knew of a harm but not of its discriminatory basis. See 2 Lindemann & Grossman, supra, at 1350. But our approach to equitable tolling is narrower; First Circuit law permits equitable tolling only where the employer has actively misled the employee. See Mack, 871 F.2d at 185 (noting that the First Circuit's "narrow view" of equitable tolling reaches only "active deception" (internal quotation marks and citations omitted)); Jensen v. Frank, 912 F.2d 517, 521 (1st Cir. 1990). There is no allegation here that Kodak actively attempted to mislead Thomas about her performance appraisals. Second, there is no need to apply the continuing violation doctrine. Commentators have labeled this doctrine "the most muddled area in all of employment discrimination law," 2 Lindemann & Grossman, supra, at 1351, and some courts have gone so far as to conclude that the entire doctrine is misguided and unnecessary, see, e.g., Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 282 (7th Cir. 1993). We need not enter into that debate here. We describe the First Circuit's continuing violation doctrine with only as much detail as is necessary to show that it is inapplicable to Thomas's claim. The First Circuit has recognized two different types of continuing violations: systemic violations, which "ha[ve] [their] roots in a discriminatory policy or practice . . . [that] itself continues into the limitation period," DeNovellis v. Shalala, 124 F.3d 298, 307 (1st Cir. 1997) (quoting Jensen, 912 F.2d at 523), and serial violations, which are "composed of a number of discriminatory acts emanating from the same discriminatory animus, [with] each act constituting a separate wrong actionable under Title VII," id.; see also Mack, 871 F.2d at 182-84. The systemic violation doctrine is clearly inapposite because Thomas has not alleged that Kodak has "an overarching policy or practice" of conducting discriminatory evaluations. Jensen, 912 F.2d at 523. Kodak apparently believes that Thomas is inappropriately attempting to shoe-horn her claim into the serial violation category. This is not so. Whether a serial violation exists does depend in part on a type of notice standard similar to the one in Johnson. See Sabree v. United Bhd. of Carpenters, Local No. 33, 921 F.2d 396, 402 (1st Cir. 1990) (stating that if an earlier event had "'the degree of permanence which should trigger an employee's awareness and duty to assert his or her rights,'" then it is not substantially related to the later event, and therefore cannot form part of a continuing violation (quoting Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983))). This 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 (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 under Title VII existed at the time she first received her performance appraisals. This question is more appropriately addressed under the Johnson notice standard. Applying that standard, we consider when Thomas's performance appraisals first caused her tangible, "crystallized" harm. According to Kodak's compensation plan, appraisal scores were intended to affect salary levels and determine "who should be promoted, transferred, demoted, terminated, laid off, and re- employed." It is not clear whether Kodak informed employees of this intention. But even if employees were familiar with the intended possible uses of the scores, it appears that the effects listed in the compensation plan remained abstract -- mere possibilities, not certainties. This was particularly true in Thomas's case. Flannery's appraisals evaluated Thomas's performance as only average or below average. But the appraisals did not specify that Thomas was to suffer an immediate consequence for her alleged performance failures, much less that they would mechanically lead to her being laid off. Cf. Colgan, 935 F.2d at 1410, 1419-20 (finding notice lacking even where an evaluation explicitly warned that adverse actions would be taken if the employee's performance did not improve). She was not told that layoffs were impending and that her scores placed her at high risk for layoff. Even if she did have this information, it would fall short of the "crystallized" implications required under Johnson, 840 F.2d at 136, since being at risk for layoff (due to a low ranking relative to other employees) and actually being selected for layoff are two quite different things. Kodak emphasizes the fact that Thomas refused to sign two of the three performance appraisals. According to Kodak, her refusal to sign "demonstrates that she was dissatisfied with [the appraisals] for some reason" and makes it "evident that she then believed she had been treated unfairly." Appellee's Brief at 18 n.6. A trier of fact could, but need not necessarily, conclude that Thomas had notice of the appraisals' possible racial bias as soon as they were presented to her. However, this fact does not go to the relevant question under Johnson's notice rule: whether Thomas had notice of immediate, tangible consequences of her poor scores. Kodak's argument pertains to notice of bias rather than the notice of harm required under Johnson. But notice of bias alone, absent harm, is clearly not sufficient under Johnson. We hold that the performance appraisals Thomas received in 1990, 1991, and 1992 did not trigger the statute of limitations in 2000e-5(e)(1) at the time they were presented to Thomas, because they did not initially have any crystallized implications or apparent tangible effects. Thomas's low appraisal scores first resulted in a concrete injury in 1993, when they led to her layoff. Thus, under Johnson, her layoff marked the point of accrual. Since Thomas filed a charge with the EEOC within one hundred and eighty days of her layoff (the shortest possible period imposed under 2000e-5(e)(1)), her claim is timely. B The second question on appeal is whether a reasonable jury could find, based on Thomas's evidence, that Flannery discriminated against Thomas because of her race when she assigned Thomas's performance appraisal scores. See 42 U.S.C. 2000e- 2(a)(1). To reach an answer, we follow the three stages of the "familiar burden-shifting framework," Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 673 (1st Cir. 1996), that was first outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and further explained in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The three stages can be summarized as follows: First, the plaintiff[] must establish a prima facie case that [plaintiff] (1) was within a protected class; (2) met [the employer's] legitimate performance expectations; (3) was adversely affected; and (4) was replaced by another with similar skills and qualifications. Once [plaintiff] do[es] so, the burden shifts to [the employer] to produce a valid and nondiscriminatory reason for the dismissal. In the final stage, the burden shifts back to the plaintiff[] to show that [the employer's] stated reason for [plaintiff's] dismissal was false and but a pretext for discrimination. Mulero-Rodriguez, 98 F.3d at 673 (citations omitted). We focus particularly on the final stage of the McDonnell Douglas/Burdine framework, because we agree with the district court's careful analysis of the first two stages. See Thomas, 18 F. Supp. 2d at 135. Thomas has established a prima facie case of discrimination by showing that she is a member of a protected class who met Kodak's legitimate performance expectations and was laid off, while Kodak retained persons outside the protected class. See id. This created a presumption that Kodak unlawfully discriminated against her. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citing Burdine, 450 U.S. at 254). To counter this presumption, Kodak must "articulate some legitimate, nondiscriminatory reason" for its action, McDonnell Douglas, 411 U.S. at 802, that is, allege "reasons for its action which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action," Hicks, 509 U.S. at 507 (citing Burdine, 450 U.S. at 254- 55). At this second stage, the framework imposes on the defendant only a burden of production. The burden of persuasion remains at all times with the plaintiff. See id. at 508 (citing Burdine, 450 U.S. at 256). Kodak met its burden of production -- and eliminated the presumption that it had discriminated -- by contending that its layoff decision was based solely on racially neutral performance appraisal scores. See Thomas, 18 F. Supp. 2d at 135. At the third stage of the McDonnell Douglas/Burdine framework, the ultimate burden is on the plaintiff to persuade the trier of fact that she has been treated differently because of her race. See Hidalgo, 120 F.3d at 335. This burden is often broken into two separate tasks. The plaintiff must present sufficient evidence to show both that "the employer's articulated reason for laying off the plaintiff is a pretext" and that "the true reason is discriminatory." Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995) (citing Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1994)). For expository convenience, this court has sometimes labeled these two findings "pretext" and "plus" and has referred to the First Circuit rule as a "pretext-plus" standard. See, e.g., Mullin v. Raytheon Co., 164 F.3d 696, 699 (1st Cir. 1999) (describing the difference between the "federal 'pretext-plus' standard and the Massachusetts 'pretext-only' standard"); Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir. 1998) (describing the "'pretext plus' approach"). Applying this standard, the district court found that Thomas had met the first part of her burden. It determined that a jury could find that the appraisal scores were objectively unfair or in some sense skewed against Thomas. Accordingly, the court found that "[b]ased only on the evidence presented so far, a reasonable fact finder could determine that Flannery's reasons for lowering plaintiff's [performance appraisal] ratings were pretextual." Thomas, 18 F. Supp. 2d at 137. As explained below, we agree. But the court also found that Thomas did not meet the second, "plus" part of her burden: she failed to present evidence to create a genuine issue of fact about whether the allegedly unfair scores were due to her race and not some other factor. See id. at 137-38. The court compared the evidence presented by Thomas, which in the court's view amounted only to evidence of "an unwelcoming office environment," "conspicuously unfair treatment" by Flannery, and "a personality conflict between Flannery and plaintiff," id., with the evidence presented by plaintiffs in other First Circuit cases in which plaintiffs had survived summary judgment: In all of these cases, the plaintiff alleged at least one piece of evidence that explicitly referred to plaintiff's membership in a protected class, and stated or implied that this membership was or would soon adversely affect plaintiff's employment prospects. By contrast, in cases where plaintiff fails to make any connection between adverse employment actions and membership in a protected class, summary judgment is granted to the employer, and judgment is affirmed. Id. at 138. The court granted summary judgment to Kodak because it found that Thomas had failed to "make any connection" between Flannery's actions and her own membership in a protected class. Id. In particular, the court found that Thomas failed to present any evidence that Flannery had expressly linked the low scores to Thomas's race and that Thomas's evidence of pretext was not "flagrant" enough to support a finding of discrimination on its own. Id. (emphasis added). The district court's analysis mischaracterizes the plaintiff's burden at the third stage of the McDonnell Douglas/Burdine framework. To clarify the actual nature of that burden, we make a number of points. First, the labels "pretext" and "plus" must be used with great care. Although it uses the label "plus," the First Circuit's "pretext-plus" standard "does not necessarily require the introduction of additional evidence" beyond that required to show "pretext," i.e., evidence showing that the employer's articulated reason is false. Dichner, 141 F.3d at 30. Plaintiffs may use the same evidence to support both conclusions, "provided that the evidence is adequate to enable a rational factfinder reasonably to infer that unlawful discrimination was a determinative factor in the adverse employment action." Rodriguez-Cuervos v. Wal-Mart Stores, Inc., No. 98-1732, 1999 WL 373525, at 7 n.5 (1st Cir. June 11, 1999); see also Udo, 54 F.3d at 13. A corollary is that there can be no mechanical formula at the third stage of the McDonnell Douglas/Burdine framework. "The strength of the prima facie case and the significance of the disbelieved pretext will vary from case to case depending on the circumstances. In short, everything depends on the individual facts." Woods v. Friction Materials, Inc., 30 F.3d 255, 260 n.3 (1st Cir. 1994). Other circuits have highlighted the same point: "The sufficiency of the finding of pretext to support a finding of discrimination depends on the circumstances of the case." Fisher v. Vassar College, 114 F.3d 1332, 1338 (2d Cir. 1997). Moreover, "it is difficult, if not impossible, to say in any concise or generic way under what precise circumstances . . . an inference [of discrimination from a showing of pretext] will be inappropriate." Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998). Because discrimination, and discrimination cases, come in many different forms, a case-by-case analysis is always necessary. There can be no rigid requirement that plaintiffs introduce a separate "plus" factor, such as a negative employer comment about the plaintiff's protected class, in order to prove discrimination. Otherwise, the McDonnell Douglas/Burdine framework would no longer serve the purpose for which it was designed: allowing plaintiffs to prove discrimination by circumstantial evidence. See Smith v. F.W. Morse & Co., 76 F.3d 413, 420-21 (1st Cir. 1996). Our second point is related. That "everything depends on the individual facts" means we need to look carefully at the particular type of claim that Thomas is bringing. As we understand Thomas's argument, she alleges a more subtle type of disparate treatment than the type often used to exemplify the operation of the McDonnell Douglas/Burdine framework. She does not argue that Kodak has articulated a false reason for her layoff (for example, excessive tardiness) in order to disguise the actual, unrelated reason (her race) -- what one might describe as a "truth versus lies" claim -- rather, she challenges the racial neutrality of the proffered reason itself. The latter type of challenge is also cognizable as a form of disparate treatment: if an employer evaluates employees of one race less favorably than employees of another race who have performed equivalently, and if race, rather than some other factor, is the basis for the difference in evaluations, then the disfavored employees have been subjected to "discriminat[ion] . . . because of . . . race." 2000e-2(a)(1). The "pretext-plus" label may seem inapposite for this type of claim, since the word "pretext" could suggest a conscious lie. But issues of pretext should not be confused with the issue of whether there has been discrimination "because of race." As the Supreme Court has used the term "pretext," the term provides "no justification for assuming . . . that those employers whose evidence is disbelieved are perjurers and liars." Hicks, 509 U.S. at 520. According to the Hicks Court, "[t]o say that the company which in good faith introduces such testimony, or even the testifying employee himself, becomes a liar and a perjurer when the testimony is not believed, is nothing short of absurd." Id. at 520-21. The ultimate question is whether the employee has been treated disparately "because of race." This is so regardless of whether the employer consciously intended to base the evaluations on race, or simply did so because of unthinking stereotypes or bias. See Robinson v. Polaroid Corp., 732 F.2d 1010, 1015 (1st Cir. 1984) (noting that plaintiffs in a disparate treatment case can challenge "subjective evaluations which could easily mask covert or unconscious race discrimination on the part of predominantly white managers"); Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169, 179 (1st Cir.) (permitting a challenge to a decision process in which "bias may often be unconscious and unexpressed"), vacated on other grounds, 439 U.S. 24, 24 (1978), aff'd after remand, 604 F.2d 106, 114 (1st Cir. 1979) (noting again that sex discrimination includes "the practice, whether conscious or unconscious, of subjecting women to higher standards of evaluation than are applied to their male counterparts"). The Supreme Court has long recognized that unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus. Indeed, discussing age discrimination in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), the Court characterized employer decisions "'based in large part on stereotypes unsupported by objective fact,'" id. at 610-11 (quoting EEOC v. Wyoming, 460 U.S. 226, 231 (1983)), as "the essence of what Congress sought to prohibit in the ADEA," id. at 610 (emphasis added). And the prohibition against this form of disparate treatment is not limited to the context of age discrimination. The Court has interpreted Title VII as "'prohibit[ing] all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin,'" County of Washington v. Gunther, 452 U.S. 161, 180 (1981) (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976)), and has noted that this includes "the entire spectrum of disparate treatment of men and women resulting from sex stereotypes," id. (quoting Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). Stereotypes or cognitive biases based on race are as incompatible with Title VII's mandate as stereotypes based on age or sex; here too, "the entire spectrum of disparate treatment" is prohibited. The role of such stereotyping has been discussed most thoroughly in that branch of disparate treatment law developed apart from the McDonnell Douglas/Burdine framework and known as the Price Waterhouse framework. See Price Waterhouse v. Hopkins, 490 U.S. 228, 239-58 (1989); Smith, 76 F.3d at 420-22 (comparing the two frameworks). The district court in Price Waterhouse found that the employer, an accounting firm, had discriminated against Ann Hopkins by permitting stereotypical attitudes about women to play a role in its decision not to invite her to become partner. See Hopkins v. Price Waterhouse, 618 F. Supp. 1109, 1118-19 (D.D.C. 1985). On appeal, the employer contended that it could not be liable for disparate treatment because "Hopkins did not prove 'intentional' discrimination on the part of the [decision-making] Board, but only 'unconscious' sexual stereotyping by unidentified partners who participated in the selection process." Hopkins v. Price Waterhouse, 825 F.2d 458, 468 (D.C. Cir. 1987), aff'g in part and rev'g in part Hopkins, 618 F. Supp. at 1113-21. The D.C. Circuit squarely rejected this argument: In keeping with [Title VII's remedial] purpose, the Supreme Court has never applied the concept of intent so as to excuse an artificial, gender-based employment barrier simply because the employer involved did not harbor the requisite degree of ill-will towards the person in question. As the evidentiary framework established in McDonnell Douglas makes clear, the requirement[] of discriminatory motive in disparate treatment cases does not function as a "state of mind" element, but as a method of ensuring that only those arbitrary or artificial employment barriers that are related to an employee or applicant's race, sex, religion, or national origin are eliminated. Id. at 468-69 (footnotes omitted); see also Lynn v. Regents of the Univ. of Cal., 656 F.2d 1337, 1343 n.5 (9th Cir. 1981) ("[W]hen plaintiffs establish that decisions regarding . . . employment are motivated by discriminatory attitudes relating to race or sex, or are rooted in concepts which reflect such attitudes, however subtly, courts are obligated to afford the relief provided by Title VII."). The court of appeals found it unsurprising that the disparate treatment doctrine focuses on causality rather than conscious motivations, since "unwitting or ingrained bias is no less injurious or worthy of eradication than blatant or calculated discrimination." Hopkins, 825 F.2d at 469. If the plaintiff has shown that she was treated less favorably because of her gender, the court said, "the fact that some or all of the partners at Price Waterhouse may have been unaware of that motivation, even within themselves, neither alters the fact of its existence nor excuses it." Id. The Supreme Court upheld this portion of the D.C. Circuit's decision. See Price Waterhouse, 490 U.S. at 250-52 (plurality opinion); id. at 259 (White, J., concurring in the judgment); id. at 261, 272, 277-78 (O'Connor, J., concurring in the judgment); see also Hopkins v. Price Waterhouse, 920 F.2d 967, 969 (D.C. Cir. 1990) (affirming district court decision after remand from Supreme Court) (noting that this portion of Hopkins, 825 F.2d at 468-69, was upheld by the Supreme Court). The Price Waterhouse plurality explained: "In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Price Waterhouse, 490 U.S. at 249. The plurality added that "[b]y focusing on [the plaintiff's] specific proof, . . . we do not suggest a limitation on the possible ways of proving that stereotyping played a motivating role in an employment decision." Id. at 251-52. The concept of "stereotyping" includes not only simple beliefs such as "women are not aggressive" but also a host of more subtle cognitive phenomena which can skew perceptions and judgments. Price Waterhouse highlighted one such phenomenon: the tendency of "unique" employees (that is, single employees belonging to a protected class, such as a single female or a single minority in the pool of employees) to be evaluated more harshly in a subjective evaluation process. See id. at 235-36; see also Villanueva v. Wellesley College, 930 F.2d 124, 131 (1st Cir. 1991) (discussing possible relevance of plaintiff's status as the sole employee within a protected class). Other types of biased thinking are also widely recognized. See generally L. H. Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1186-1217 (1995) (describing varieties of cognitive bias); C. R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 328-44 (1987) (discussing forms of racism); see also D. Charny & G. M. Gulati, Efficiency-Wages, Tournaments, and Discrimination: A Theory of Employment Discrimination for "High-Level" Jobs, 33 Harv. C.R.-C.L. L. Rev. 57, 77-78, 83 (1998) (noting the inability of the market alone to correct the effects of cognitive biases and stereotypes). We make one final general point about the third stage of the McDonnell Douglas/Burdine framework: in the context of a motion for summary judgment, courts must be very cautious about sua sponte finding non-discriminatory reasons for apparently disparate treatment. Although the presumption of discrimination has dropped out of the case by the third stage of the McDonnell Douglas/Burdine framework, its rationale remains relevant: discrimination, rarely explicit and thus rarely the subject of direct evidence, may be proven through the elimination of other plausible non- discriminatory reasons until the most plausible reason remaining is discrimination. See Burdine, 450 U.S. at 254 n.8 (noting that "the allocation of burdens" in a Title VII case "is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination"). In this case, for instance, the plaintiff has argued that her appraisal scores were unfairly low because of her race, while the defendant has argued that the scores were objectively fair. By finding that plaintiff has presented enough evidence to suggest that her scores were unfairly low, and then speculating that a personality conflict could be the source of that unfairness, the district court erroneously adopted a third view. See Thomas, 18 F. Supp. 2d at 137-38. No party in this case has argued that a personality conflict explained any disparity in the scores assigned by Flannery, and the district court should not, at summary judgment, have replaced Kodak's articulated explanation sua sponte with its own. It may be that a jury (or judge, if no jury trial is claimed) would find at trial that a personality conflict rather than racial bias is the best explanation for any difference in scores. But the question at summary judgment is not which of the possible explanations is most convincing; it is whether the plaintiff has produced enough evidence to raise a genuine issue of fact regarding her explanation. Having clarified the actual nature of the plaintiff's burden under McDonnell Douglas/Burdine, we now consider whether Thomas has met that burden. Because the employer here has articulated a non-discriminatory reason for its action, the initial presumption of discrimination created under McDonnell Douglas/Burdine has dropped from the case. See Hicks, 509 U.S. at 510-11; Smith, 76 F.3d at 421. This leaves the plaintiff with the ultimate burden of proving discrimination. She must produce evidence to create a genuine issue of fact with respect to two points: whether the employer's articulated reason for its adverse action was a pretext and whether the real reason was race discrimination. See Udo, 54 F.3d at 13. In other words, she must produce evidence to permit a reasonable jury to conclude both that disparate treatment occurred and that the difference in treatment was because of race. The same evidence may support both showings. See id. The first portion of Thomas's third-stage burden is to produce sufficient evidence to show that she was not evaluated on the same terms as her colleagues, but rather was evaluated more harshly than the other, non-minority CSRs. The district court found that the plaintiff met this portion of her burden: she produced enough evidence to allow a reasonable factfinder to determine that Flannery's reasons for assigning her scores were "pretextual." Thomas, 18 F. Supp. 2d at 137. We agree. One strong piece of evidence is the sharp drop in Thomas's overall score (from 6 in 1989 to 3 in 1990) after Flannery became her supervisor. While the drop in score would not demonstrate uneven treatment if Flannery were simply a "tough grader," this does not appear to have been the case. In 1990, when Thomas received a 3, all of the other CSRs whom Flannery graded received either a 5 or a 6. Furthermore, over her three years as supervisor Flannery gave CSRs other than Thomas a number of 7s in individual categories, a score that earlier supervisors characterized as extremely rare or even unheard of. The drop in Thomas's score from 1989 to 1990 would also fail to demonstrate uneven treatment if it merely reflected a higher standard imposed upon Thomas due to her grade change in 1989. According to Kodak, "the higher the wage grade and salary, the more Kodak expected from the employee." Appellee's Brief at 34. But Thomas presents deposition testimony from other supervisors suggesting that there was no such rule, and the scores that Flannery assigned to other Wellesley CSRs seem to bear this out: one CSR who received a grade change in 1991 received a 5 in 1992 after receiving a 6 in 1991 (a drop of only one point rather than three after the grade change), and another CSR who received a grade change in 1991 received a higher score the following year (from a 4 in 1991 to a 5 in 1992). Thomas makes other specific comparisons as well. The strongest of these concern her scores for "quantity of results," which was the most objective of the categories appraised, since it was based directly on the number of machines and installations for which a CSR was responsible. Thomas's scores appear low when compared to the scores for quantity given to other CSRs. In 1990, for instance, Thomas received only a 3 for quantity of results -- a below average score -- for managing 730 machines and 110 installations, while another CSR, also in the K6 grade, received a 5 for quantity in 1991 for managing far fewer machines (504) and fewer installations (81). Kodak argues that the comparison is "unfair and analytically unsound" because the other employee had been at the K6 grade for many years, and "[s]ustained performance at a higher grade counts for more than a relatively shorter period of performance at the higher grade." Appellee's Brief at 35. This argument might persuade a jury to discount the value of this comparison, but it does not render the comparison meaningless at summary judgment, where Thomas need only produce evidence sufficient to support her contention that her scores were lower than those given to similarly performing non-minority CSRs. See Molloy v. Blanchard, 115 F.3d 86, 91 (1st Cir. 1997) (noting that "'[e]xact correlation is neither likely nor necessary'" and stating that "'[t]he test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent.'" (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989))). In addition to the performance appraisals themselves, Thomas presents other evidence to show that Flannery treated her differently than she treated the other CSRs. According to Thomas, Flannery used flimsy grounds to prevent her from delivering an important presentation at a Kodak meeting, refused to provide her with computer training, failed to allow her appropriate developmental opportunities, and failed to evaluate her accurately on the basis of her interaction with customers (since she never accompanied Thomas on site in order to observe that interaction, as she did with the other CSRs). On the whole Thomas has presented enough evidence to survive summary judgment on the question of disparate treatment. Some of Thomas's scores, and particularly the 1990 scores, appear lower than one would expect given her apparent performance level. A reasonable jury, examining the evidence Thomas has submitted, could conclude that Thomas was evaluated more harshly than other, non-minority CSRs supervised by Flannery. Kodak argues that, even if true, this would not matter, because Thomas would have been laid off anyway. Even if Thomas had received the highest possible score (7) in 1990, Kodak says, her PAR ranking would not have changed: because the PAR formula so heavily weighted the two more recent scores, Thomas would still have had the second lowest PAR score among the CSRs and would still have been selected for layoff. There are two flaws with this argument. First, it ignores the natural implications of a finding that the 1990 scores were unfairly low. To the extent that Thomas's 1990 scores were inappropriately low, a factfinder could infer that her later scores -- although higher than her 1990 scores -- were inappropriately low as well (and indeed, they were consistently lower than the scores given to the other CSRs, as demonstrated by the performance appraisals that Kodak has produced for 1991 and 1992). Second, Kodak's argument ignores the fact that performance appraisal scores were expressly on a curve. According to Kodak's compensation plan, scores were to be "validated" by reference to an informal supervisor ranking of employees in the group. Thus, if Thomas's scores had gone up, other CSRs' scores might have gone down. Whether accurate scoring of Thomas in relation to the other CSRs would have saved her from layoff is something Thomas must prove at trial. But she has created a genuine issue with respect to this question. Not only has she produced evidence which suggests that Flannery treated her differently and graded her more harshly than the other CSRs, she has also produced evidence to support the claim that her earlier evaluations were a more accurate appraisal of her performance: (1) her promotion in 1989 to the K6 grade, which was reserved for "outstanding" CSRs "servicing the largest and/or most sensitive accounts," (2) her salary, which was higher than her seniority would predict, presumably reflecting the fact that Kodak had, over the years, found her performance level to be comparatively high, and (3) the positive comments from customers and from other supervisors, which suggest that she was in fact one of the better CSRs. Our inquiry does not end with this finding, since even the most blatant unfairness cannot, on its own, support a Title VII claim. "Title VII does not grant relief to a plaintiff who has been discharged unfairly, even by the most irrational of managers, unless facts and circumstances indicate that discriminatory animus was the reason for the decision." Smith, 40 F.3d at 16; see also Rodriguez-Cuervos, 1999 WL 373525, at 5. Instead, our focus shifts to the question whether Thomas has produced sufficient evidence to support a finding that the apparent disparity in treatment was due to her race. As we emphasized above, Thomas can meet her burden with respect to this question using the same evidence used to show unequal treatment. The district court's opinion can be read to say that at this stage the plaintiff must produce what has been called "direct" evidence, such as racially explicit statements. That is not so. There is no requirement that a plaintiff, having shown differential treatment and pretext, must present direct, "smoking gun" evidence of racially biased decisionmaking in order to prevail. Where the disparity in treatment is striking enough, a jury may infer that race was the cause, especially if no explanation is offered other than the reason rejected as pretextual. That is the case here, since Kodak argues that Thomas's scores were objectively fair, not that they were unfair due to a personality conflict, as the district court surmised. In fact, Thomas does present additional evidence on this point. She describes incidents and situations which suggest that Flannery had a general disregard for her professional abilities and status. It also appears, from the picture that Thomas paints (and which Kodak does not dispute) that Flannery was at times inappropriately upset or angry with Thomas, to the point of behaving unprofessionally. This, in turn, suggests that she did not respond neutrally to Thomas. A jury might reasonably infer from Thomas's description of these incidents that Thomas's race was an issue for Flannery and that Flannery's evaluations of Thomas were affected by some form of conscious animus or less conscious bias. Our assessment of the evidence would be quite different if Thomas had been one of several black employees supervised by Flannery, some of whose scores were not low relative to those of the non-minority CSRs. But that was not the case. Thomas was the only black CSR, and one can infer from the evidence that she was also the only CSR who was evaluated unfairly. Given this, it is reasonable to infer that race played a determinative role in the evaluation process -- especially since there is also other evidence that Flannery treated Thomas poorly. Indeed, the very fact that Thomas was the only black CSR at the Wellesley office may have increased the likelihood that she would be evaluated more harshly. See Price Waterhouse, 490 U.S. at 235-36; Villanueva, 930 F.2d at 131. In the end, Thomas is in a different position than a plaintiff who merely "disagree[s] with [the employer's] assessment of her relative performance." Compton v. GTE Gov't Sys., Corp., No. 93-11383, 1995 WL 791938, at 6 (D. Mass. Dec. 7, 1995), cited in Thomas, 18 F. Supp. 2d at 136; see also Blick v. Pitney Bowes Management Servs., Inc., No. 93-11573, 1995 WL 791945, at 5 (D. Mass. Dec. 25, 1995) (noting that a plaintiff's mere disagreement with the employer's "assessment of his work attitude . . . is not sufficient to create a triable federal discrimination claim"), cited in Thomas, 18 F. Supp. 2d at 136. Thomas has presented "evidence from which the trier of fact reasonably could conclude that [her] abilities and qualifications were equal or superior to employees who were retained." Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1119 (1st Cir. 1993). It is not an "improbable inference[]" or "unsupported speculation," Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990), to further conclude, based on the evidence available at summary judgment, that Kodak failed to recognize this fact because it relied on an evaluation procedure that was tainted by racial bias. IV Thomas's claim is timely, and it is based on sufficient evidence to permit a reasonable jury to find that Flannery discriminated against Thomas because of her race when she assigned the performance appraisal scores that led to Thomas's layoff. Accordingly, we reverse the district court's grant of summary judgment and remand for further proceedings consistent with this opinion. Costs are awarded to appellant.
142 Ariz. 501 (1984) 690 P.2d 802 P.B. BELL & ASSOCIATES, Petitioner Employer, Argonaut Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Jean Sandrone, Respondent Employee. No. 1 CA-IC 3139. Court of Appeals of Arizona, Division 1, Department B. September 13, 1984. Review Denied November 6, 1984. 503 Jennings, Strouss & Salmon by Steven C. Lester, Phoenix, for petitioner employer and petitioner carrier. Sandra Day, Chief Counsel, Indus. Com'n of Ariz., Phoenix, for respondent. Timothy J. Kamper, Phoenix, for respondent employee. OPINION OGG, Judge. The issue presented in this special action review of an Industrial Commission award is whether claimant's injury arose out of or in the course of her employment. We hold that the administrative law judge correctly concluded that it did and affirm the award. The necessary facts are relatively simple and not in dispute. Respondent employee Jean Sandrone (claimant) was employed as an accounts payable clerk by petitioner employer P.B. Bell & Associates (Bell). Claimant did not drive to work but was dropped off by her daughter at the front of the building. Bell was one of several tenants that leased office space in the Colonial Square Building. To the south of the building, uncovered parking was available for the tenants' employees who drove to work. In addition, there were some covered parking spaces. It is uncontroverted that Bell leased three of these covered parking spaces, paying an additional fee for their use. These spaces were for the use of specified persons. All other Bell employees who drove could park their cars in the uncovered spaces in the southern lot. One of the covered spaces leased by Bell was allotted to the administrative manager, Mary Carol Rogers. On December 23, 1982, pursuant to previous discussion, claimant, Rogers and two others had plans for a luncheon. The administrative law judge found as a fact that the occasion was a purely social event, and that finding is adequately supported by the evidence. The four were to ride in Rogers' car, which was parked in her usual covered space. To reach the car, the employees exited the building by a door on the south side of the building. The concrete platform directly outside of the door was one step above the sidewalk running along the side of the building. The sidewalk was one step above the parking lot. This was the exclusive ingress and egress used by Rogers. The claimant missed a step, fell, and broke her left hip. Following the compensability hearing, the administrative law judge issued his findings and award for compensable claim. As noted above, he found that the luncheon was a social, rather than a business function. His other key finding was Number 5, which reads as follows: Mary Carol Rogers was the administrative office manager of the defendant employer and she invited the three other women in the employer's office to go to a pre-Christmas lunch party at the Doubletree Inn on December 23, 1982. The arrangements were made sometime before that date. About noon of December 23, 1982, the four women went out the back door of the building in which the employer's offices were situated along with other tenants of the office complex. Applicant thought two of four were ahead of her. In any event, applicant managed to step down from the door threshold onto the sidewalk, but she fell at the sidewalk step down to the parking lot surface. The four were headed for Mary Carol Roger's car, which was parked in one of three parking slots provided by the employer. Applicant testified that she had never used that particular exit from the building before and was unfamiliar with it. The case of Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973) is generally considered to have adopted for Arizona the "on premises rule" whereby an injury while going to or from work is considered as arising out of and in the course of work and therefore compensable. It is interesting to note that this 504 case did not hold for the rule because it was not shown that the injury took place on the premises. Nevertheless, the opinion states that the case overrules prior inconsistent cases. See Gaughan v. Industrial Commission, 21 Ariz. App. 137, 516 P.2d 1232 (1974) applying the new rule of law. In Knoop v. Industrial Commission, 121 Ariz. 293 (App.), 589 P.2d 1325 (1979) the opinion of the Court denied the applicability of the Paulley [sic] rule, but carved a new exception to the non-liability while going to and from work. There it is said (p. 297 [589 P.2d 1325]): "[1] After careful consideration, we believe that the exception to the going and coming rule for travel across a public road between two portions of the employer's premises is a reasonable exception, at least where, as here, the employee was told to park in the lot where she parked on the day she was injured. In this situation, petitioner was subjected to the risks involved in crossing 14th Street as a result of her employment. By locating the lot where it did so that petitioner had to cross 14th Street, and by telling petitioner to park there, respondent employer helped create the situation which caused her accident and injury. Therefore, an `origin or cause of the injury' was her employment, and, thus, her injury was one `arising out of' the employment." Here the spot provided to Mary Carol Rogers to park her car is analogous to another premise of the employer's premises provided for her use. It makes no difference that the spot was not for applicant's use. The need for travel across the lot was the same for both. Bell and the carrier filed their request for review one day late, alleging secretarial error as an excuse. The claimant objected to the late filing. The administrative law judge excused the untimely filing, but his decision upon review affirmed the decision upon hearing. A timely petition for special action review was then filed by the petitioner employer and carrier. We first address the issue of petitioners' late filing of their request for review. This matter was the subject of a motion to dismiss the petition, which was denied by this court by order dated May 4, 1984. To any extent that the claimant's argument was not determined by that order, we explicitly reject claimant's argument that Cook v. Industrial Commission, 133 Ariz. 310, 651 P.2d 365 (1982), only allows the excusing of late requests for review by claimants, but not of late requests for review by employers and carriers. Cook makes no such singular qualification and is equally applicable to claimants, employers and carriers. Therefore, we find that the administrative law judge did not err by excusing the late filing and considering the request for review. As to the issue of compensability, the petitioners argue that this is a case falling within the going and coming rule, and not subject to any of the exceptions thereto. Claimant argues that the administrative law judge's analysis was correct, or alternatively that claimant's injury is compensable under other exceptions to the going and coming rule. Generally, of course, the employee's injury by accident must arise out of and in the course of employment. Royall v. Industrial Commission, 106 Ariz. 346, 476 P.2d 156 (1970). The going and coming rule states that an injury sustained by an employee in an accident while going to or coming from work does not arise out of and in the course of employment. E.g., Ebasco Services, Inc. v. Bajbek, 79 Ariz. 89, 284 P.2d 459 (1955). The major exception to the rule is that there is coverage where an employee injures himself while going to or coming from work while he is on the employer's premises. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973). A trip away from and back to the work premises for the purpose of lunch is indistinguishable from the coming and going at the beginning and end of the work day. 1 Larson, Workmen's Compensation Law, § 15.50 at 4-91 (1983). 505 Therefore, an injury incurred during the journey to and from lunch is generally compensable only if sustained on the employer's premises. Here, however, there was no finding that the injury was incurred on the premises. Rather, the finding was that the injury was sustained while claimant was traveling from one part of the work premises to another, i.e., from the office to the parking lot. Based upon this finding, the administrative law judge found the holding of Knoop v. Industrial Commission, 121 Ariz. 293, 589 P.2d 1325 (App. 1978), dispositive. See also, Larson, supra, at § 15.14. Knoop held that an employee injury sustained on a public thoroughfare lying between the work premises and the employer's parking lot was compensable. Petitioners argue that the application of Knoop to the present case was error because the leased parking spaces were not a part of the premises since Bell did not control the parking spaces. Therefore, petitioners argue that the "travel between two parts of the premises" rule does not apply. The majority disagrees. In Knoop, the employer leased a lot across a public street from its premises. It was uncontroverted that the claimant and other employees had orders to park in the leased lot. The street was owned and maintained by the City of Phoenix. The court first found Pauley, supra, inapplicable because the claimant was obviously not injured on the premises. The court then stated: In this case, it is clear that petitioner was injured while walking from the leased parking lot to the employer's buildings. The leased parking lot is considered the employer's premises. Gaughan v. Industrial Commission, 21 Ariz. App. 137, 138, 516 P.2d 1232, 1233 (1973); 1 Larson's Workmen's Compensation Law § 15.41 (1978). Since petitioner was injured between two parcels of the employer's premises while going to work, the going and coming rule itself would prevent her from receiving compensation unless some relevant exception to that rule applies. Professor Larson has described an exception to the going and coming rule which precisely fits the facts of this case: § 15.14 Travel between two parts of premises One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of his employer's premises, whether going and coming, or pursuing his active duties. Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises, the majority rule is that an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises. 1 Larson's Workmen's Compensation Law § 15.14, at 4-34, 4-36.... 121 Ariz. at 296-297, 589 P.2d 1325. In Knoop, the court applied the two premises rule, noting that the employee's orders to use the lot subjected her to the risk involved in crossing the public street. The court held: ... that there is an exception to the going and coming rule for accidents and injuries occurring on public roads while the employee is traveling between an employer controlled parking lot and the employer's workplace, where, as here, the employee was told to park in the lot where she parked on the day she was injured. 121 Ariz. at 298, 589 P.2d 1325. Petitioners' major argument is that the above holding requires that the claimant show that the parking "lot" is employer controlled. Petitioner points out that the portion of the form lease requiring the lessee to pay additional amounts for the maintenance of common areas, including the parking area, is deleted from the Bell lease. There is no other evidence suggesting 506 Bell had control over either the three leased spaces or the uncovered portions of the lot. It is not clear from the record whether the fact that Bell paid extra for the use of the three covered spaces gave Bell any rights of control over those spaces. We conclude that actual control or maintenance by Bell is not necessary to make the spaces a part of the employer premises. Knoop quotes § 15.14 of Larson: "Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises...." The "later" referred to is § 15.41 of Larson, wherein Larson states that: The doctrine has been applied when the lot, although not owned by the employer, was ... just used, by the employees of this employer. Thus, if the owner of the building in which the employee works provides a parking lot for the convenience of all of his tenants, or if a shopping center parking lot is used by employees of businesses located in the center, the rule [that the parking lot is considered part of the premises] is applicable. ... (emphasis added) Larson, supra, § 15.41 at 4-69 to 70. In the present case, we have the additional fact that the lessor not only provided parking for use by the tenants, but also leased the three covered parking spaces upon the payment of an additional fee by Bell. We find our recent opinion in Hansen v. Industrial Commission, 141 Ariz. 190, 685 P.2d 1342 (App. 1984) to be analogous. In Hansen, the injured employee, Foster, was employed by Hansen, dba Ala Carte Players. Hansen was under contract to Ramada Inn to stage evening dinner plays in an on-premises theatre. Ramada provided the Ala Carte Players with one or two rooms for use as a dressing room. Normally, room 155 was assigned as the dressing room, but occasionally room 157 would instead be assigned, without prior notice to Hansen or any of the play participants. Apparently the rooms set aside for use as dressing rooms were located in a building to the north of the main building and were conveniently accessible from the northern portion of the parking lot. On the date she was injured, Foster was dropped off on the south side of the main building just in front of the cocktail lounge approximately one hour before the performance was to begin. Foster did not go directly to the dressing room; instead, she went into the cocktail lounge where she knew Hansen could be found. After walking to Hansen's table and confirming that the dressing room was open, Foster proceeded toward the north doors of the lounge, on her way to the dressing room, when she slipped and fell, suffering a knee injury. Hansen argued that Foster's injury did not arise out of and in the course of her employment because she was not injured upon physical premises controlled by the employer. We held that control of the premises was not the issue, [r]ather the question to be answered is: was the claimant injured on the employer's physical premises or if not was there a distinct ... causal connection between the conditions under which claimant must approach and leave the premises and the occurrence of the injury ... (emphasis in original) 685 P.2d at 1347. We then held that: although Foster was not on the physical premises controlled by her employer, she was nonetheless within the range of risk causally related to her employment that would justify a compensable award for her injury. In short, Foster was where she might reasonably be expected to be in connection with the employer's work, Pauley v. Industrial Commission, 109 Ariz. at 302, 508 P.2d at 1164, using a customary or permissible route to her actual workplace. 685 P.2d at 1347. Similarly, in the case at bar, claimant was injured while using a route she might reasonably be expected to utilize in entering or exiting her employer's premises. Moreover, just as in Knoop, we have the exposure of employees to a known risk. In Knoop, the known risk was the risk of crossing a city street. Here, it is the risk 507 of using an egress with two steps down to the parking lot. All of the Bell employees who drove evidently used this egress, whether they parked in covered or uncovered parking spaces. It is clear, at any rate, that Rogers exclusively used this avenue to come from and go to her parking space. Certainly the employer expected her to use the parking space provided for her and could foresee that she would use the most convenient route thereto. In Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976), the employer argued that a previous Colorado opinion which had adopted the "travel between two parts of the premises" rule, was not applicable because the parking lot was not owned, maintained by, or subject to the control of the employer. The court disagreed: While the Court in that case approved an award of benefits to an employee injured while crossing a public street to reach the employer's parking lot after working hours, we do not construe the holding in that case as limited to cases where an employee is injured near or on a parking lot owned, maintained, or controlled by the employer. Rather, that case established an exception to the general rule regarding off-premises injuries to the effect that if special circumstances surrounding the employee's injury reflect a causal connection between the conditions under which the work is to be performed and the resulting off-premises injury, compensation is proper. This exception has been applied by the appellate courts in this jurisdiction in various factual situations. In the case at bar, we agree with the Commission that there are special circumstances which reflect a causal connection between claimant's employment and her injury. Space in the parking lot was afforded Woodruff for the use of its employees, and Woodruff was aware that its employees used the lot. Parking privileges constituted an obvious fringe benefit to claimant. Claimant was injured while in the act of enjoying that benefit. Hence, the necessary causal connection appears. (citations omitted) 554 P.2d at 707. Of the cases supporting the position set forth in § 15.41 of Larson, the strongest in rejecting the requirement of employer control over the parking area is Frishkorn v. Flowers, 26 Ohio App.2d 165, 270 N.E.2d 366 (1971). There, the employer was located in a shopping center, along with many other retail stores. The parking area was operated, controlled and maintained by the owner of the shopping center. The employer had no ownership or control over the parking area. The lot was used by the employees and customers of the stores. There was no charge for the parking and the employees were free to park anywhere in the area zoned for parking. The appellee argued that because the parking lot was not under its control or maintenance, it should have no responsibility for any injury suffered by an employee therein. The court disagreed: It would be impractical and illogical to apply this principle to a shopping plaza consisting of multiple independent businesses, each of which would have to be an owner in common with all the other tenants in order to share a nebulous control over its geographical confines and simulate a joint zone of employment. Such concept is too narrow and restrictive... 270 N.E.2d at 368. Several other jurisdictions have rejected the employer control requirement. See, e.g., Max E. Landry, Inc. v. Treadway, 421 P.2d 829 (Okla. 1966) (compensable claim where employee injured in parking lot provided by owner to the several businesses located in the building); Berry v. B. Gertz, Inc., 21 A.D.2d 708, 249 N.Y.S.2d 285 (App. Div. 1964) (compensable claim by injured employee of business in shopping center where lot not owned or controlled by employer); Merrill v. J.C. Penney, 256 N.W.2d 518 (Minn. 1977) (compensable injury sustained by employee of tenant of shopping center with lot maintained and 508 controlled by owner, but tenant paid pro rata fee for maintaining lot). We recognize that there is authority contrary to our holding, however we do not find it persuasive. Two of the stronger cases cited by petitioners, K-Mart Discount Stores v. Schroeder, 623 S.W.2d 900 (Ky. 1981), and Pacific Employers Insurance Company v. Booker, 553 S.W.2d 586 (Tenn. 1977), come from jurisdictions which have consistently applied a very narrow application to the premises rule. As noted by Larson, "Two jurisdictions, Kentucky and Tennessee have narrowed the going-and-coming premises rule judicially...." Larson, supra, § 15.42 at 4-78. Larson, in § 15-14, which as noted above specifically discusses the "travel between two parts of the premises" rule, states that: "As to the specific rule of law involved here, the Kentucky, Tennessee, and Wisconsin decisions are of limited applicability outside those states, the former because Kentucky and Tennessee do not consider parking lots themselves to be `premises,' and the latter because of the limiting effect of the statutory language." Id. at 4-40, n. 55. For the above reason, we also reject the applicability of Jaeger Baking Company v. Kretschmann, 96 Wis.2d 590, 292 N.W.2d 622 (1980). Becton, Dickinson & Company v. Industrial Commission, 54 Ohio App.2d 186, 376 N.E.2d 961 (1977), cited by appellee and factually on all fours with Knoop, rejected compensability because there was no employer control over the public street. To rely on Becton here would be to repudiate our holding in Knoop, which we shall not do. Even the case of Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676 (1980), is distinguishable from the present case. There, the shopping center parking lot was used by the employees and customers of various stores. An injury to the employee in the parking lot was found noncompensable because of the employer's lack of control. Here, however, the three covered spaces were specifically leased for Bell employees for an additional price. Also, although the effect the lease had on Bell's control is not clear in the record, it is a reasonable inference that the parking space lease gave Bell additional rights over the covered spaces as compared to the noncovered spaces. See Montgomery Ward v. Cutter, 64 Or. App. 759, 669 P.2d 1181 (1983). The only further wrinkle in this case is the fact that the claimant was not the regular user of the space. Petitioners argue that only the person actually parking in the space, i.e., Rogers, could recover for an injury sustained between the office and parking space. We find this argument unpersuasive. Under petitioners' proposed rule, a claim would not be compensable if a different employee parking her car in Rogers' space was injured or if an employee who regularly rode to work with Rogers was injured. The focus, under the travel between two parts of the premises rule, is not on who was the injured employee, but rather on the nature of the parking area. If the parking area is a part of the premises, any employee traveling between the office and a car located in the parking area is clearly traveling between the two parts of the premises and falls within the rule as enunciated in Larson, supra. Further, the cases have drawn no distinction between injured passenger employees and driver employees. See, e.g., Brooks v. New York Telephone Company, 448 N.Y.S.2d 859, 87 A.D.2d 701 (App.Div. 1982); Buerkle v. United Parcel Service, 26 N.J. Super. 404, 98 A.2d 327 (1953). Petitioners' argument that an affirmance would ignore Knoop's expressed concern about the deleterious effects of unwarranted exceptions to the going and coming rule is unfounded. Knoop refers to § 15.12 of Larson. This section is concerned with various states' attempts to abandon the premises rule adopted by this state in Pauley, supra. Larson therein criticizes various proximity exceptions to the premises rule as unworkable. Larson has no such criticism for the "traveling between the two parts of the premises" rule and furthermore 509 clearly endorses the result reached here in § 15.41. We find that petitioner's accident and injury arose out of and in the course of her employment. We hold that where an employer, leasing space in a multiple-lessee building, leases specific parking spaces for which the employer pays an additional charge, an employee injured while traveling from the leased work premises to an automobile parked in a leased parking space has sustained a compensable injury under the "traveling between two parts of the premises" rule adopted in Knoop. We need not go further. The award is affirmed. MEYERSON, P.J., concurs. JACOBSON, Chief Judge, dissenting. I dissent. As indicated in the majority opinion, the Administrative Law Judge's determination was based upon the rationale of Knoop v. Industrial Commission, 121 Ariz. 293, 589 P.2d 1325 (App. 1978), that is, that either the parking lot generally or the parking lot which encompassed the "covered" spaces are a portion of the employer's premises and therefore travel between these separate portions of the premises (as an exception to the coming and going rule) arises out of and in the course of the employment. Specifically, the Administrative Law Judge and the majority do not base compensability in this case on a finding that the "stoop" leading from the building housing the employer's offices were part of the employer's premises.[1] I therefore accept the basic premise underlying the majority's opinion, that this is an "off premise" injury case. It is also important to emphasize that the claimant's activity in going to lunch clearly falls within the well recognized "coming and going" rule, that is, that injuries occurring during such activity are not compensable as either arising out of or in the course of the employment. Pauley v. Industrial Commission, supra. Since I agree with the rationale of Knoop, the question presented is whether the parking lot in this case is the same type of parking lot as was presented in Knoop. This requires an understanding of the "premise" rule itself. Prior to the decision of Pauley v. Industrial Commission, supra, Arizona adhered to a strict interpretation of the coming and going rule, that is, until a worker actually commenced his duties of employment, the worker was still in the process of "coming" to work and therefore was not yet within the course of his employment. See McCampbell v. Benevolent & Protective Order of Elks, 71 Ariz. 244, 226 P.2d 147 (1950) (denying coverage to an employee who slipped and fell while climbing steps outside the Elks Lodge on his way to work). This prior rule was subject to criticism because it was based upon a proximity test to the actual work site resulting in somewhat arbitrarily drawn distances. See 1 Larson's Workmen's Compensation, §§ 15.11 and 15.12, and examples cited therein. Most courts have now adopted a test, not based upon proximity to the actual job site, but upon whether the accident occurred on the employer's premises. This rule was adopted in Pauley when the court held: ... [W]hen an employee is going to or coming from his place of work and is on the employer's premises he is within the protective ambit of the Workmen's Compensation Act.... 109 Ariz. at 302, 508 P.2d at 1164. This "premise" liability is based, not upon the special risks or hazards which are encountered on the employer's premises, but because the employer's controls those premises and thus makes injuries occurring thereon arising out of and in the course of employment. This is made clear by the following passage from Pauley: 510 ... [B]ut we think workmen's compensation should not be expanded to injuries sustained while off the employer's premises, when the hazards encountered are not peculiarly within the employer's control. (Emphasis added) 109 Ariz. at 302, 508 P.2d at 1164. With this in mind, I turn to the "premises, to premise" rule adopted in Knoop. In Knoop, the employer maintained and controlled a parking lot located across a public street from the employer's place of business. This parking lot was clearly part of the employer's premises. Not only was the parking lot maintained and controlled by the employer, the employees were ordered to use that lot. The claimant Knoop was injured on a public street while crossing from the parking lot to the employer's business. In finding the injury compensable the court in Knoop held: After careful consideration, we believe that the exception to the going and coming rule for travel across a public road between two portions of the employer's premises is a reasonable exception, at least where, as here, the employee was told to park in the lot where she parked on the day she was injured. In this situation, petitioner was subjected to the risk involved in crossing 14th Street as a result of her employment. By locating the lot where it did so that petitioner had to cross 14th Street, and by telling petitioner to park there, respondent employer helped create the situation which caused her accident. (Emphasis added) 121 Ariz. at 297, 589 P.2d at 1329. In analysis, then, Knoop is merely a logical extension of the premise "control" rationale, that is, the employment subjected the employee to a risk "as a result of her employment" which the "employer helped create." This is completely in keeping with Larson's analysis of the rationale for the compensability of travel between two parts of the employer's premises: ... [I]n this instance, as in many others, the concept of "course of employment" follows that of "arising out of employment"; that is, the employment connected risk is first recognized, and then a course-of-employment theory must be devised to permit compensation for that obviously occupational risk. * * * * * * We have, then, a workable explanation of the exception to the premise rule: it is not proximity, or reasonable distance, or even the identifying of surrounding areas with the premises: it is simply that, when a court has satisfied itself that there is a distinct "arising out of" or causal connection between the conditions under which the claimant must approach and leave the premises and the occurrence of the injury, it may hold that the course of employment extends as far as those conditions extend." 1 Larson, Workmen's Compensation, § 15.15 p. 4-42 to 4-43. Thus, if the basis of "premise" liability is employer control, the basis of "travel" liability between employer's premises is the causal connection of the employment created risk that such travel entails. The "arising out of" or causal connection in Knoop was the employer imposed requirement that employees use a parking lot which exposed them to the hazards of crossing a public street. With this identification of rationale in mind, I turn to the facts and legal premises of this case. First, I must disagree with the cases cited in the majority opinion that employee parking, regardless of employer ownership, control or maintenance are part of the employer's premises. In Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976), cited by the majority, the landlord of the employer tenant allowed the employer's employees to use its parking lot. There is no indication that the employer paid any additional rental for this privilege, but it is clear that the employer had no control over the lot, did not maintain it or require its employees to utilize that parking. The claimant was injured when she stepped on ice in the parking lot. The Colorado court 511 after determining that there must exist a causal connection between the employment and this off-premise injury found that connection as being a "parking privilege" which was a "fringe benefit" and that the claimant was enjoying that "fringe benefit" when she was injured, hence a causal connection. The problem with this reasoning is that the "fringe benefit" does not appear to have been bestowed by her employer, but rather by her employer's landlord. It also appears to have been a "fringe benefit" shared with the world at large, that is, all the other employees and customers of the landlord's tenants. In my opinion this is not a sufficient employment causally related connection to satisfy Larson's "arising out of the employment" rationale. Also, this opinion ignores the requirement that something in the employment itself must impose the exposure to risk that the travel to and from work entails. Likewise, Frishkorn v. Flowers, 26 Ohio App.2d 165, 270 N.E.2d 366 (1971), which is also cited by the majority, ignores any employment imposed risk, but rather defines a "zone of employment" which includes a parking lot at a shopping center with 43 tenants. No Arizona case, to my knowledge, has embraced such a concept. To utilize the travel between two parts of the employer's premise rationale of Knoop, it is first necessary to have two separated employer's premises. In determining what constitutes an employer's premises, the employer, at a minimum, must exercise some measure of control over that area. Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676 (1980). To ignore this requirement is to ignore what gives rise to the premise liability in the first instance control. Also to ignore this requirement is to simply return to the discredited theory of proximity to the employer's premises under the guise of defining what constitutes that premises. This is exactly what the majority has done by inference in defining the parking lot in general as being a portion of the employer's premises. The majority's protestations not to the contrary, this is also exactly what was warned against in Knoop. The majority points out, however, on the occasion of this injury the claimant was accompanying a fellow employee who utilized a covered parking stall, for which the employer paid additional rent. I would agree in the broadest sense that such covered stalls could be considered as part of the employer's premises because presumably the employer at least exercised control over which employees enjoyed this protection from the Arizona sun and presumably could have other less fortunate individuals ejected from the shade. However, simply defining the two separated employer's premises, contrary to the majority's conclusion, does not mean that travel between these two premises automatically places the traveler in the course of his employment. Rather, both Larson and Knoop require that the employee travel arise out of the employment, that is, have a causal connection to the employment. As to this claimant, no such causal connection exists. There is nothing in the employment relationship which required that the claimant accompany her fellow worker to lunch.[2] Nor is the going to lunch itself within the course of employment. Thus, I am unable to find any employment created risk which would take this normally noncompensable journey out of the universally followed coming and going rule. In this regard the majority's conclusion that the rule in Knoop is satisfied by merely identifying two separated portions of the employer's premises and placing the injured claimant in a position between these two points is, in my opinion, erroneous. To put the matter in proper perspective, if the reasoning of the majority's rule is given its logical extension, a workman who lived between two separated work places of his employer would be within the course of his employment if he fell on his front steps as he was leaving for work. 512 For the reasons stated I would set aside the award. NOTES [1] Since this theory was urged upon the Administrative Law Judge and the Administrative Law Judge determined the issue upon other grounds, there was an implied rejection of this theory. I conclude that factually and legally that rejection is supportable. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973). [2] The Administrative Law Judge specifically found that the luncheon engagement was not a business related activity, a finding which is factually supportable in the record.
187 F.3d 344 (3rd Cir. 1999) UNITED STATES OF AMERICA,v.CHRISTOPHER PHILLIP FORDHAM, Appellant No. 99-3132 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Submitted Under Third Circuit LAR 34.1(a) July 13, 1999Decided July 30, 1999 Appeal from the United States District Court for the Middle District of Pennsylvania D.C. No.: 97-cr-00018-1 District Judge: Honorable James F. McClure, Jr. George J. Rocktashel, Office of United States Attorney, 240 West Third Street, P.O. Box 548, Williamsport, PA 17703, Counsel for Appellee G. Scott Gardner, 2117 West 4th Street, Williamsport, PA 17701, Counsel for Appellant Before: GREENBERG, ALITO, and ROSENN, Circuit Judges. OPINION FOR THE COURT ROSENN, Circuit Judge: 1 Appellant, Christopher Phillip Fordham, pleaded guilty to conspiracy to commit money laundering in violation of 18 U.S.C. S 1956(h). The Presentence Investigation Report ("PSR") calculated the defendant's guideline range at 87 to 108 months based on a Criminal History Category of I. The United States District Court for the Middle District of Pennsylvania, the Honorable James F. McClure, Jr. presiding, found that a Criminal History Category of I significantly under-represented the seriousness of the defendant's prior record. Consequently, the court departed upward to a Criminal History Category of II, which calculated the increased guideline range at 97 to 121 months. The court then imposed a 120 month term of imprisonment plus a special assessment of $100.1 Defendant appealed. We affirm. I. 2 A government investigation revealed that the defendant procured large amounts of marijuana in Arizona and Mexico, which he had others transport and sell in New York and Pennsylvania. The defendant also used Federal Express to transport marijuana to individuals located in State College, Pennsylvania. In addition, at the defendant's direction, several individuals flew to New York and Pennsylvania carrying marijuana. Following the deliveries, the defendant received either wire transferred funds in Tucson, Arizona or, if not by wire transfer, those who transported the marijuana to New York and Pennsylvania would return to Tucson and personally deliver cash to him. 3 Investigators of the Pennsylvania Attorney General's office identified in excess of $300,000 in Western Union and American Express wire transfers from locations in State College and Southeastern Pennsylvania to the defendant when he resided in Tucson, and to other individuals located in Jamaica. The defendant admitted to a probation officer that a typical marijuana delivery consisted of a quantity in the twenty to thirty pound range. He also stated that he received approximately $150,000 via Western Union and American Express. 4 At the sentencing hearing, government witness Agent Kevin M. Barr verified the allegations contained in the PSR. In light of Barr's testimony, the district court found that the defendant was both an organizer and a leader of an extensive conspiracy, consisting of in excess of five participants. The court also sua sponte voiced the possibility of an upward departure from the defendant's criminal history category based mainly on the defendant's prior foreign conviction.2 More particularly, on December 3, 1990, the defendant was arrested by the Federal Judicial Police in Sonora, Mexico, while carrying 3.70 kilograms of marijuana. He told authorities that he was transporting the marijuana to the United States. He was convicted and sentenced in the Seventh District Court in Mexico for possession of marijuana and subsequently he was transferred to the United States through a prisoner exchange. Eventually United States Parole Commission paroled him on February 3, 1992 to commence a five-year term of supervised release. 5 Defense counsel objected to an upward departure, contending that the district court lacked authority to depart because the foreign conviction was purportedly a simple possession of marijuana. Under the guidelines, such a conviction meant that the defendant could not have received more than six months if he had been convicted in the United States. Hence, as a matter of law, defense counsel asserted that the court lacked authority to depart upward. 6 Overruling defense counsel's objection, the district court carefully considered its authority to depart under Guideline Section 4A1.3, noting with particularity that the accompanying commentary merely provided examples in determining the appropriateness of an upward departure. Pursuant to the Section 4A1.3, the court concluded that the defendant's Criminal History Category of I as reflected in the PSR significantly under-represented the seriousness of his criminal history. The court adjusted upward the defendant's category, placing the defendant in Category II which resulted in a guideline range of 97 to 121 months. The court then imposed a sentence of 120 months imprisonment, stating that the offense committed was serious in nature and that the defendant's continuing criminal conduct while under community supervision indicated a need for deterrence and protection for the community. II. 7 The defendant's sole argument on appeal is that the district court erred when it departed upward. To the extent the defendant questions the district court's decision to depart, we review for abuse of discretion. Koon v. United States, 518 U.S. 81, 98 (1996). On the other hand, to the extent he questions the court's authority to depart, we review de novo. Id. at 100. A. 8 The defendant argues that the district court erred when it adjusted upward his criminal category because not only did it lack reliable information concerning the foreign conviction, but the information that it possessed pertained solely to a single offense that was not serious in nature. He also contends that his case is unlike the example provided in the policy statement accompanying Guideline Section 4A1.3, involving a defendant with a criminal history that is extensive and serious in nature. On the other hand, his foreign conviction was a single offense, was not serious in nature, and would be only a misdemeanor if it had been committed in Pennsylvania. He further asserts that his foreign conviction was not reliable because no certified copy of that conviction was introduced at his sentencing hearing. He concludes that a more suitable adjustment would have been a sentence in the upper range of the applicable guideline range under Category I rather than a departure. 9 In response, the Government contends that Guideline Section 4A1.3 permitted the district court to depart upward. It asserts that Section 4A1.3 contains no requirement that there be more than one foreign conviction. It avers that the information considered by the district court indicated that the defendant was convicted in Mexico for possession of 3.79 kilograms of marijuana, which he himself admitted he was transporting to the United States. Accordingly, it submits that because the offense involved a significant quantity of marijuana, coupled with an intent to import the substance into the United States and distribute it there, the district court was vested with the discretion to depart upward. 10 Lastly, as to the reliability of the defendant's foreign conviction, the Government observes that the conviction was honored through a prisoner exchange program and the defendant was transferred to the United States and released by the United States Parole Commission to commence a five year term of supervised release. The United States District Court for the District of Arizona supervising defendant's release recognized the validity of the underlying conviction when it found on May 3, 1993 that the defendant violated the condition of his supervised release and imposed a 21 month term of imprisonment. Therefore, the Government submits that the district court here justifiably relied on the foreign conviction in determining the appropriateness of an upward departure. B. 11 Guideline Section 4A1.3 empowers the district court to depart upward "[i]f 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 ... ." U.S.S.G. S 4A1.3. Section 4A1.3 also indicates that reliable information can include " ... prior sentences' not used in computing the criminal history category (e.g., sentences for foreign and tribal offenses) ... ." U.S.S.G. S 4A1.3(a). 12 To establish reliability of the foreign conviction, certified copies of the conviction albeit desirable are not required for the sentencing court's determination as to whether an upward adjustment is warranted. See United States v. Soliman, 889 F.2d 441, 444-45 (2d Cir. 1989). Furthermore, the sentencing court may, even in light of a constitutionally infirm foreign conviction, consider any reliable information concerning the conduct that led to the conviction. See United States v. Delmarle, 99 F.3d 80, 85 (2nd Cir. 1996). C. 13 In the case at bar, we conclude that the district court, in exercising the discretion vested under Section 4A1.3, committed no error in relying on the defendant's foreign conviction, as well as the severity of the underlying offense,3 and the defendant's past criminal history in determining that an upward departure was warranted. Not only was the court apprised of the possible constitutional infirmities surrounding the foreign conviction,4 but the court also identified that evidence which it believed justified upward departure. See United States v. Luscier, 983 F.2d 1507, 1511 (9th Cir. 1993). Specifically, the court remarked that the defendant would have occupied the higher category had the foreign conviction been counted in computing his criminal history category before departure. The court explained that "if [the foreign] conviction... was a federal conviction, he'd have another five points added on." Additionally, the court acknowledged that it was not certain whether the Mexican authorities adhered to due process in sentencing the defendant for possession of marijuana. Nevertheless, the court stated that it was confident that the conviction was fair. These reasons are not only well within the court's sound discretion, but also permissible considerations in fact and law. See Delmarle, 99 F.3d at 85; Luscier, 983 F.2d at 1511; Soliman, 889 F.2d at 445. We therefore perceive no error in the court's decision that it could depart upward and see no abuse of discretion in its decision to so depart. III. 14 For the foregoing reasons, the judgment sentence of the district court will be affirmed. NOTES: 1 The district court had subject matter jurisdiction based on 18 U.S.C. S 3231. This court has appellate jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742. 2 In order to be consistent with the plea agreement, the Government took no position when the court inquired as to whether it believed an upward departure was warranted. 3 The district court's conclusion that the foreign offense conduct was sufficiently serious to trigger its discretionary authority to depart under U.S.S.G. S 4A1.3 is supported by the fact that, had the defendant been convicted of possessing 3.70 kilograms of marijuana in the United States, he would have been subject to a 10-16 month sentence, assuming a criminal history category of I. See U.S.S.G. S 2D1.1 (possession of between 2.5 and 5 kg. of marijuana results in base offense level of 12). 4 See Soliman, 889 F.2d at 445 (citing Guidelines Manual Section 1B1.4 at 1.21)("Once appraised of the possible constitutional infirmities surrounding a foreign conviction, the sentencing judge, in an exercise of informed discretion, may rely on the conviction in deciding whether to depart from a Guideline range ... .")
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 97-1423 ___________ Darrell Kempcke, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Monsanto Company, * * Defendant - Appellee. * ___________ Submitted: October 21, 1997 Filed: January 6, 1998 ___________ Before FAGG, WOLLMAN, and LOKEN, Circuit Judges. ___________ LOKEN, Circuit Judge. Monsanto Company fired Darrell Kempcke when he refused to return company documents that he believed reflected a pattern of age discrimination against himself and others. Kempcke now appeals the grant of summary judgment dismissing his age discrimination and retaliation claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34, and the Missouri Human Rights Act, Mo. Ann. Stat. §§ 213.010 et seq. We reverse. We view the facts in the light most favorable to Kempcke. At the time in question he was a forty-eight year old senior training manager in Monsanto’s Global Operations Division. Kempcke had been denied three manager positions after turning forty, the explanation being that Monsanto reserved these positions for “young promotables.” He received a favorable performance review in 1992, with a comment that his work was “well above” Monsanto’s expectations. In early 1993, Monsanto assigned him a personal computer previously used by Bud Garrison, a high-ranking Human Resources officer. While deleting old files from the computer’s hard drive, Kempcke discovered two documents that led to this litigation. One was a June 1991 letter between two Monsanto executives addressing the need to find opportunities for promising young employees. Another was an “Organization Upgrade Plan” for the Global Operations Division, authored by Garrison. Garrison’s Upgrade Plan proposed a reduction in the number of Division managers through reassignment, retirement, and outplacement. It organized the fifty- nine managers into four categories, “must keep,” “want to keep,” “close calls,” and “remove from position.” Kempcke was listed in a subpart of the “close calls” category labeled “probably will not make it.” All fifteen managers in this subcategory and the “remove from position” category were at least forty years old. The Plan noted that five of the nine employees recommended for outplacement, including Kempcke, would likely “make age an issue” if this action was taken. By the time Kempcke found the document, three of the fifteen had been “downgraded” and six were “on their way out.” By August 1996, all fifteen had left the company or been demoted. Kempcke showed the Upgrade Plan to Garrison and asked, “Does this mean I don’t have a job or a future here?” Dissatisfied with Garrison’s non-answer, Kempcke then complained to his supervisor, James Schafbuch, that the Upgrade Plan reflected age discrimination. Schafbuch demanded that Kempcke return all documents found in the computer. Kempcke replied that Monsanto should deal with his attorney on that issue. Schafbuch responded with a memorandum stating that Kempcke would be -2- terminated for insubordination unless he returned the documents by June 14, 1993. Schafbuch fired Kempcke on June 14 when he failed to meet that deadline. The district court granted summary judgment dismissing Kempcke’s age discrimination and retaliation claims, concluding that Monsanto fired him for a legitimate business reason -- refusing to return company property -- and that Kempcke’s refusal was not protected activity that could support a retaliation claim. We review the grant of summary judgment de novo. See Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996). I. Retaliation The ADEA provides that it is “unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section, or . . . participated in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). Kempcke’s retaliation claim requires proof that he engaged in ADEA-protected activity, Monsanto took adverse employment action against him, and there was a causal connection between the two. See Montandon v. Farmland Ind., Inc., 116 F.3d 355, 359 (8th Cir. 1997). At the summary judgment hearing, supervisor Schafbuch testified that he fired Kempcke “for refusing to return all documents that he may have removed from Monsanto property,” including the Upgrade Plan and the 1991 letter that Kempcke had delivered to his attorney. The question, then, is whether Kempcke engaged in ADEA- protected activity when he delivered arguably incriminating company documents to his attorney and then told Monsanto to contact his attorney for return of the documents, instead of complying with Monsanto’s demand to return the documents himself. Protected activity includes “oppos[ing] any practice made unlawful” by the ADEA, § 623(d). Employer conduct that an employee opposes need not in fact be unlawful. Rather, the employee must “demonstrate a good faith, reasonable belief that -3- the underlying challenged action violated the law.” Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1155 (8th Cir. 1989). Viewing the summary judgment evidence most favorably to Kempcke, a reasonable factfinder could conclude he had a good faith reasonable belief that the documents found in his computer revealed an ongoing Monsanto plan to weed out senior managers, including Kempcke, at least partially because of their ages. Standing alone, the Upgrade Plan is quite innocuous, because an employer’s concern with possible age discrimination claims “should not be equated with an admission of age- related animus,” Bashara v. Black Hills Corp., 26 F.3d 820, 824 (8th Cir. 1994), and because a document identifying the age of a group of employees is “not significantly probative” of age discrimination. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082 (11th Cir. 1990). But Kempcke, a twenty-two year employee with an excellent performance record, nonetheless inferred that age was a factor underlying the Plan’s proposed outplacements, based upon his interpretation of language in the Plan document, reinforced by Monsanto executives’ recurring references to “young promotables” and the 1991 letter declaring a need to find opportunities for younger employees. Kempcke confronted his supervisor with these documents and requested an explanation. That is clearly protected activity. He also gave the documents to his attorney and told his supervisor that Monsanto must deal with his attorney on the question of whether the documents would be returned. This was at least arguably oppositional or litigation activity, because it placed documents that might evidence discrimination in the hands of a legal professional who would litigate the issue on Kempcke’s behalf if he could not resolve the matter informally with Monsanto. An employee with a good faith reason to believe his employer is engaged in unlawful age discrimination “has a legitimate interest in preserving evidence of [his employer’s] unlawful employment practices.” O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996). -4- Even if Kempcke’s conduct in delivering arguably incriminating documents to his attorney was generally consistent with opposing unlawful age discrimination, we must also consider whether that conduct was so disruptive, excessive, or “generally inimical to [the] employer’s interests . . . as to be beyond the protection” of § 623(d). Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 230 (1st Cir. 1976); see Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988). For example, an employee who steals confidential company documents, even documents that may evidence discrimination, has not engaged in protected activity that will support a retaliation claim if he is discharged for theft. See O’Day, 79 F.3d at 762- 64; Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir. 1985). Cf. McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995). Here, Kempcke innocently acquired the documents, discovering them in a computer assigned to him by Monsanto. This is akin to the employee who is inadvertently copied on an internal memorandum, or who discovers a document mistakenly left in an office copier. Without question, employees in these situations have a duty to safeguard the employer’s documents and confidential information. But when documents have been innocently acquired, and not subsequently misused, there has not been the kind of employee misconduct that would justify withdrawing otherwise appropriate § 623(d) protection. Of course, employee insubordination is ordinarily a legitimate non-discriminatory reason for adverse action, see, e.g., Berg v. Bruce, 112 F.3d 322, 327 (8th Cir. 1997), and insubordination can include refusing to return confidential employer documents. But when the insubordination consists of refusing to cease what a jury could find to be reasonable ADEA-protected activity, such as retaining a document that may evidence on-going discrimination, summary judgment dismissing a retaliation claim is not appropriate. Two recent decisions illustrate the rather subtle distinctions that must be made in these kinds of retaliation cases. In Bullock v. American Tel. & Tel. Co., 50 Fair Empl. Prac. Cas. (BNA) 407, 1989 WL 13242 (N.D. Ill. 1989), an equal employment -5- compliance officer upset with his salary complained that his analysis of the company’s salary programs showed an adverse impact on older employees. The employer asked to see the analysis and underlying data. The employee refused, was fired for insubordination, and sued, claiming unlawful retaliation against his protected activity in investigating age discrimination. The court granted summary judgment for the employer. Because it was plaintiff’s job to ensure that the employer’s personnel decisions were free of discrimination, his refusal to share his discrimination analysis with the employer was a fundamental breach of a job duty that justified his discharge for insubordination. On the other hand, in Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564 (2nd Cir. 1989), the company president asked plaintiff to recruit a young man to fill plaintiff’s former position. Plaintiff wrote a memorandum setting forth the young man criteria, and the president signed his approval on the memorandum. Plaintiff’s supervisor later edited the incriminating criteria out of the document, demanded that plaintiff surrender his copy of the original version, and fired plaintiff for insubordination when he refused. A jury upheld plaintiff’s retaliation claim, and the Second Circuit upheld the jury’s verdict. The court rejected defendant’s contention that this was improper conduct unworthy of ADEA protection because, even if plaintiff had an ulterior motive in asking the president to sign the document, the jury could find this conduct protected because “Grant’s memo did not create the appearance of discrimination but, as Grant testified, merely documented a discriminatory practice that already existed.” 880 F.2d at 1570. In support of its holding that Kempcke’s conduct was not protected activity, the district court cited O’Day and Jefferies v. Harris County Community Action Ass’n, 615 F.2d 1025 (5th Cir. 1980), cases involving improper dissemination of an employer’s documents to third parties other than the plaintiff’s attorney. Here, there is a genuine dispute whether Kempcke disseminated the documents or their contents to persons other than his attorney, conduct that might well be unworthy of protection. For summary judgment purposes, we must accept Schafbuch’s testimony that he fired Kempcke simply for refusing to return all copies of the documents, leaving issues such -6- as wrongful dissemination to others to develop at trial. On this record, a reasonable jury could find that it was protected activity for Kempcke to deliver the documents to his attorney and tell Monsanto to deal with the attorney regarding their return, and that it was unlawful retaliation to fire Kempcke for engaging in this activity. Accordingly, the district court erred in granting summary judgment dismissing the retaliation claim. II. Age discrimination An age discrimination claim requires proof that the employer intentionally discriminated against an employee over the age of forty on account of his age. See 29 U.S.C. §§ 623(a)(1), 631. Age discrimination may be proved indirectly by showing that the employer’s profferred explanation is “unworthy of credence” and a pretext for intentional discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). In this case, Kempcke discovered an Upgrade Plan recommending elimination of fifteen division manager positions. The Plan noted that the fifteen were over age forty and predicted that five would complain of age discrimination if outplaced. Kempcke complained that the Plan reflected age discrimination, first to Plan author Garrison and then to supervisor Schafbuch. Rather than provide an explanation, Schafbuch responded with a peremptory demand that Kempcke return the documents or be fired for insubordination, even though Schafbuch knew that Kempcke had given the documents to his attorney. If there was no more to the incident than that, a reasonable factfinder could conclude that Monsanto’s action in firing Kempcke for giving innocently acquired documents to his attorney, rather than returning them himself, was such an extreme overreaction as to be pretextual, that is, “unworthy of credence.” And if Monsanto’s reason for firing was pretextual, that tends to support the inference that the Upgrade Plan was in fact a plan to terminate Kempcke and others on account of their ages. In -7- these circumstances, we conclude on the record before us that Kempcke presented sufficient evidence to avoid summary judgment dismissing his age discrimination claim. See generally Ryther v. Kare 11, 108 F.3d 832, 836-38 (8th Cir. 1997), cert. denied, 117 S. Ct. 2510 (1997); Rothmeier, 85 F.3d at 1332. For the foregoing reasons, the judgment of the district court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. FAGG, Circuit Judge, dissenting. Kempcke was fired because he took his employer's documents and refused to give them back. I believe there is a big difference between out-and-out insubordination and protecting one's civil rights when age discrimination is afoot in the workplace. Although unintended, the court's decision not only opens up another avenue of on-the- job mischief but puts employers in a position where they can't do anything about it. I would affirm the district court. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. -8-

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